Taylor and Repatriation Commission

[2003] AATA 805

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/485

VETERANS’ APPEALS  DIVISION		)
Re		Allen Michael Taylor

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member

Date15 August 2003 

PlaceSydney

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that:

(i) Mr Taylor suffers from the war-caused conditions of generalised              anxiety disorder and alcohol abuse with effect from and including 2 November 1998; and

(ii)  The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission.

...............................................

Ms SM Bullock
  Presiding Member

CATCHWORDS

Veterans’ Affairs - Entitlement - Diagnosis of Psychiatric Condition - Post Traumatic Stress Disorder - Generalised Anxiety Disorder - Personality Disorder - Alcohol Dependence or Abuse -  Operational Service - Reasonable Hypothesis

LEGISLATION

Veterans’ Entitlements Act 1986 ss 5D, 9,13, 119,120, 120A.

AUTHORITIES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Re Budworth and Repatriation Commission [2000] AATA 127

Re Binding and Repatriation Commission [1998] AATA 340

Repatriation Commission v Binding [1999] FCA 974

Repatriation Commission v Budworth (2001) 116 FCR 200

Budworth v Repatriation Commission (2001) 63 ALD 422

Jones v Dunkel (1959) 101 CLR 298

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill (2002) 69 ALD 581

Freeman v Repatriation Commission [2002] FCA 576

Re Powell and Repatriation Commission [2000] AATA 385

Repatriation Commission v Gorton (2001) 110 FCR 321

Fogarty v Repatriation Commission (2002) 36 AAR 307

O'Neil v Repatriation Commission (2001) 34 AAR 290

Lees v Repatriation Commission (2002) 36 AAR 484

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Connors v Repatriation Commission (2000) 59 ALD 61

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Bey (1997) 79 FCR 364

Bull v Repatriation Commission (2001) 66 ALD 271

Repatriation Commission v O’Brien (1985) 155 CLR 422

Re Dell and Repatriation Commission (1986) 9 ALD 596

East v Repatriation Commission (1987) 16 FCR 517

Woodward v Repatriation Commission [2003] FCAFC 160

Fogarty v Repatriation Commission [2003] FCAFC 136

Stoddart v Repatriation Commission (2003) 197 ALR 283, [2003] FCA 334

REASONS FOR DECISION

15 August 2003   Ms S M Bullock, Senior Member
  Dr M E C Thorpe, Member                 

1.      This is an application to the Administrative Appeals Tribunal (“the Tribunal”) of a decision of the Veterans’ Review Board made on 28 February 2001 (T16) which affirmed a decision of the Repatriation Commission dated 8 June 1999 (T2) which refused a claim by the Applicant, Mr Allen Michael Taylor, for post traumatic stress disorder and alcohol dependence or alcohol abuse.  A hearing was held in Sydney on 5 November 2002 and resumed in Sydney on 24 February 2003. Final written submissions were received on 19 March 2003. Mr Taylor was represented by Mr C Colborne of Counsel and the Respondent, the Repatriation Commission, was represented by Mr J Marsh, Departmental Advocate.  Oral evidence was provided to the Tribunal by Mr Taylor and by Commodore P M Mulcare of Writeway Research Service. Concurrent medical evidence was provided by Dr J Westerink, Consultant Psychiatrist and Medical Director of St John of God Health Services, and by Dr R Haik, Consultant Psychiatrist.  Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (“T Documents”, T1-20) in addition to the following exhibits:

Exhibits	Description	Date
Exhibit A1	Statement by Mr AM Taylor	8 August 2001
Exhibit A2	Statement by Mrs S B Taylor, Mr Taylor’s mother	Undated
Exhibit A3	Statement by Ms C Wojcenski, Mr Taylor’s sister	24 October 2002
Exhibit A4	Report by Dr J Westerink, Consultant Psychiatrist and attachments	25 February 2002
Exhibit A5	Further report by Dr J Westerink, Curriculum Vitae and Assessment Protocol from the National Centre for War-Related Post Traumatic Stress Disorder	4 July 2002
Exhibit A6	Extract on “Posttraumatic Stress Disorder and Acute Stress Disorder”  from Kaplan & Sadock’s “Synopsis of Psychiatry” Ninth Edition, pp623-632
Exhibit R1	Report by Dr R Haik, Consultant Psychiatrist and Curriculum Vitae	28 February 2002
Exhibit R2	Report by Commodore PM Mulcare, RAN, Rtd, Writeway Research Service	15 January 2002
Exhibit R3	Clinical Notes from St John of God Hospital, Richmond	Various
Exhibit R4	Copy of HMAS Perth’s Ship’s Log	10 October 1970

2.Following the publication of Stoddart v Repatriation Commission (2003) 197 ALR 283, FCA 334 and the Full Federal Court decision in Woodward v Repatriation Commission [2003] FCAFC 160, the Tribunal invited the parties to provide further written submissions if they wished. The Tribunal was informed by the representatives that neither party wished to provide any supplementary submissions.

ISSUES

3.The issues in this matter are:

(i)        What is the correct diagnosis of Mr Taylor’s psychiatric condition?

(ii)Whether or not Mr Taylor’s correctly diagnosed psychiatric condition is war-caused.

SERVICE

4.      Mr Taylor served in the Royal Australian Navy (“the Navy”) from 7 March 1970 until 25 November 1973.  He served in Vietnam from 14 September 1970 until 8 April 1971 and from 21 November 1972 to 26 November 1972. All of this service constitutes operational service for the purposes of the Veterans’ Entitlements Act 1986.

LEGISLATION

5.      A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act1986 (“the Act”).

6. Section 5D of the Act deals with the definition of injury and disease.

7. Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:

“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;

(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e)      the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

…”

8. Section 13 of the Act deals with eligibility for pensions.

9. Section 119 of the Act reflects that decision-makers are not bound by technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.

10. The standard of proof to be used in relation to Mr Taylor’s operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:

“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

...”

11. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority (“RMA”) or any other relevant determination or declaration under the Act. As relevant, Section 120A of the Act states:

“120AReasonableness of hypothesis to be assessed by reference to Statement of Principles

(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;

(b)       a claim under Part IV that relates to:

(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(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.

Note: See subsection (4) about the application of this subsection.

(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be.

…”

EVIDENCE OF MR ALLEN MICHAEL TAYLOR

12.     Mr Taylor’s date of birth is 12 September 1952.  He attended school to Year Ten stating that he did reasonably well at school and in high school he was in the second highest class.  Mr Taylor noted that he repeated first class when in Infant’s School.  Mr Taylor told the Tribunal that he had no difficulty passing the school certificate.  At school he was shy but participated in many sporting activities, including rugby league, tennis, both at school and in outside competitions on the weekend, and swimming.  Mr Taylor stated that he would socialise with children after school and on Tuesday and Thursday he had football training after school.  For three or four years he was member of a Church of England Youth Group which was like the Scout’s movement, and he would meet every Friday.  He ceased this activity when he joined the Navy.  While at school, Mr Taylor had a girlfriend but there was no sexual relationship.

13.     Mr Taylor explained that since a young child he had always wanted to join the Navy but he was aware that he had to be 15 and a half or 16 years old and have obtained his School Certificate before being able to join.  He commenced in the Navy on 7 March 1970 and underwent recruit training for a period of approximately 12 weeks.  He was asked which branch of the Navy he wanted to work in and nominated the Communications Branch.  In about June 1970, Mr Taylor thought that he was assigned to HMAS Perth.  He was an Ordinary Seamen but a Communications Officer.  He was involved in what he termed “warm up exercises in Jervis Bay” before leaving for Vietnam.  As well as learning about communications work, he undertook domestic duties, including in the kitchen. 

14.     Mr Taylor told the Tribunal that he knew about Vietnam when he joined the Navy in 1970 and that there was a possibility that he would be sent there.

15.     Mr Taylor estimated that he was 18 years old when he was sent to Vietnam serving in HMAS Perth on what he termed the first gun line trip.  It was HMAS Perth’s job to fire at targets and he believed that in the time he was involved with HMAS Perth, 10,000 shells were fired. 

16.     Mr Taylor told the Tribunal that he was on lookout duties on his first trip to Vietnam on top of the bridge in the open with at least five others.  There were five watches on board ship.  During one particular watch at night which commenced at 8:00 pm and concluded at 2:00 am, in about the middle of this watch or at about 1:00 am, Mr Taylor recalled that he saw a small minesweeper being fired upon.  In previous statements he had indicated that this was an American minesweeper but historical reports indicate that it was a South Vietnamese minesweeper.  Mr Taylor told the Tribunal that the minesweeper had run aground and he thought that it was about 500 metres away from his ship although from historical reports it would seem that the minesweeper was more likely to be approximately 5,000 yards away from Mr Taylor aboard HMAS Perth.  The minesweeper was being fired upon with small arms fire, including rifles and machine guns.  When Mr Taylor referred to his evidence to the Veterans’ Review Board (T12, p65) in which he had stated that the firing was occurring for several hours and was heavy fire, Mr Taylor explained that he was recalling these events some 30 years ago when he was 18 years old.  Mr Taylor indicated to the Tribunal that the duration of the firing upon the minesweeper was in fact some ten or 20 minutes.  Mr Taylor reiterated that it is difficult to remember these specific details so long ago and he is not very good with estimation of time.  Mr Taylor was later referred to the report by Commodore Mulcare, Writeway Research Service (Exhibit R2) in which a report from Commander Wright RAN Rtd, then a Lieutenant Commander and the ship Supply Officer, noted that the fire from the shore on to the minesweeper was believed to be from light 30 calibre machine guns which lasted for some minutes.

17.     Mr Taylor described being shocked at the sight of this incident and thought that someone was being killed.  He used night vision binoculars and could see tracer shots and bright colours about the minesweeper.  Mr Taylor stated that he was concerned as to why no action was being offered by his ship and he was frustrated at this.  Mr Taylor was later told by his supervisor that it was not possible to get close enough to the minesweeper to assist it to refloat.  When Mr Taylor came off watch, he had a snack/meal in the cafeteria.  He explained that he sat there in a daze, unable to eat.  Furthermore, Mr Taylor described feeling nauseous and unable to sleep well after having a shower.  Mr Taylor stated that he kept seeing the minesweeper.  He had another shift commencing at 8:00 am.  Lying in his bunk, he felt upset thinking about the people being fired at or possibly being killed.  Later that day, Mr Taylor observed the minesweeper was still aground but not being attacked. 

18.     Mr Taylor described another incident, which occurred approximately two days after the minesweeper incident.  As recorded in Mr Taylor’s statement (Exhibit A1), he was on duty as bosun’s mate when the second incident occurred.  In his statement, Mr Taylor explained that he drank more after the first incident and was later taken off lookout because of this being made bosun’s mate.. However, in evidence to the Tribunal Mr Taylor stated that in fact he was in the mess deck when the second incident occurred.  Mr Taylor stated that there was an alarm which went off alerting personnel to go immediately to the lifeboats.  There was a speaker announcement, Mr Taylor also recalled.  Mr Taylor stated that divers were sent overboard to look for mines, although he did not see the divers enter the water.  Mr Taylor stated that he was not told anything at that time as to what was happening.  He was very young and “I figured the worst” .  Later in the day, Mr Taylor found out that there was a possibility of a mine. 

19.     While Mr Taylor had recorded in various places that a mine was found, he acknowledged that he was subsequently told that no mine was found.  Mr Taylor had told Dr Westerink, Psychiatrist, that HMAS Perth was in harbour in Vietnam, although the research material indicated that HMAS Perth was at sea.  Dr Westerink had also reported that mines were found on this occasion but again Mr Taylor stated that no mines were in fact found.  It was actually a false alarm but Mr Taylor did not know that at the time.  In an undated letter to the Department of Veterans’ Affairs, Mr Taylor had also noted that mines were found.  He had not told Dr Westerink of this incident, nor indeed had he told the representatives of this or the first incident when he made his claim.  Mr Taylor explained that he did not associate these incidents with the way he felt and subsequently behaved until much later.

20.     Mr Taylor stated that there was possibly a third incident, but he was not able to give much detail apart from noting that possible enemies were transferred to a South Vietnamese craft.  Mr Taylor noted that this could be gossip and he did not have direct knowledge of this, nor could he remember whether he discussed it with Dr Westerink or Dr Haik, Consultant Psychiatrist. 

21.     Mr Taylor stated that he started drinking in the Navy.  Before going to Vietnam he would occasionally have a bicardi and coke, even though he was not old enough at that time to go to an hotel.  His father had offered him alcohol, but he had not been able to drink it.  Mr Taylor stated that he did not draw his beer ration prior to his experiences in the gun line.  On the way to Vietnam, HMAS Perth docked in Subic Bay for the first time but Mr Taylor stated that he did not drink.  He commenced drinking however, on the first gun line trip following the incident.  On return from that trip, HMAS Perth again docked in Subic Bay and his consumption of alcohol increased.  Mr Taylor recalled a particular day “Navy Day”, which was something to do with the American services.  Beer was very inexpensive, five cents per drink.  Mr Taylor noted that he “got pretty full”.  He was drinking during this time to forget the things that he had seen.  On this particular occasion he was so inebriated  that he was delivered back to HMAS Perth that night by the Shore Patrol.  Alcohol was not allowed during gun line duty which on the first occasion lasted three weeks.  Mr Taylor recalled that he was off the gun line for one week to ten days at a time.  The incident in Subic Bay on Navy Day Mr Taylor believed occurred after the second gun line trip.  He had a massive hangover the following day after his Navy Day activities.  Mr Taylor explained in relation to his consumption of alcohol that consuming alcohol  helps to settle him and make him feel better.

22.     After Vietnam, Mr Taylor was sent to HMAS Cerberus to be trained as a Tactical Operator.  He stated that he failed four or five exams, but with subsequent one to one tutoring, he passed.  The difficulty he found was that he could not motivate himself to study.  Mr Taylor  felt he would rather go out and get drunk.  It helped to relax him and ease his feelings of being edgy and jumpy.  After about  two months, Mr Taylor was drafted to HMAS Vampire.  He stated that he did not do well here as he was put with other Ordinary Seaman as he could not do the communications work. He noted that after the second trip to Vietnam, he was sent to a psychologist  and did not know at the time that he was being sent for a consultation.  After seeing the psychologist, Mr Taylor was given more time to learn his job but he still did not seem to be able to cope with it, he stated.   When serving with HMAS Vampire, he would drink his beer ration and anyone else’s that he could obtain.  He recalled on one rough night sailing between Singapore and Japan, he consumed the contents of six 26 ounce beer cans.  Back in Sydney he would go to Kings Cross to a hotel every day and would drink between eight to 20 schooners. Sometimes on weekend leave he would go to the Royal Hotel in Richmond where he would drink heavily with his father. 

23.     Mr Taylor was later sent in October on annual leave for a few weeks. Returning to the ship after his holiday, he was told he was being discharged that day.  He was sent to have a medical examination and one day after his holiday he was discharged.

24.      Mr Taylor did not challenge the decision to discharge him.  He stated he did not know how to.  He had also told the Captain that he did not want to try another branch.  With the benefit of hindsight, Mr Taylor considered that he should have requested another branch as he had very much wanted to stay in the Navy.  He had believed that he could have continued in the Navy for years, if he had not gone to Vietnam and had the experiences which he had relayed to the Tribunal.  Mr Taylor’s discharge from the Navy was because he was unsuitable.  In relation to Captain G J H Woolrych’s “Discharge Unsuitable” report (T12, p75) in relation to Mr Taylor, Mr Taylor stated that he was not interested in going to another branch, he wanted to stay in the Communications Branch.  He also did not like being given menial duties, such as cleaning toilets.  Mr Taylor disagreed with Captain Woolrych’s report (T12, p75) that Mr Taylor had been informed that the application for his discharge was being submitted.  It came as a complete surprise to him when he returned from holiday.

25.     After discharge, a friend helped him to obtain a job.  He worked from March until April 1974.  He later was assisted to find work in Penrith by an uncle.  He was living at home with his mother and sisters and he would come home inebriated and there were frequent arguments.  His life consisted of driving to his work then back home and then to the hotel.  Mr Taylor stated that he was not argumentative as a teenager and believed that he was like this when he came out of the Navy.   Mr Taylor noted that his second longest period of employment was at the Emu Plains Tile Factory.  He was sacked from this position because he had too much time off due to hangovers.  He would also get into arguments with his workmates and would become very upset and then continue drinking.  Since discharge from the Navy, Mr Taylor estimated that he has had six jobs and has had difficulties with them.  He is currently working in the Linen Department of the Nepean Hospital where he has been for ten years. The Nepean Hospital position is good because he can walk there from his home in about 20 minutes. Currently, Mr Taylor lives by himself having purchased a one bedroom unit when his mother sold her home.  He purchased this home in late 1970 using a service loan.

26.     Mr Taylor described his practice of drinking and then driving a motor vehicle.  He has lost his driver’s licence on two occasions.  Mr Taylor described one occasion in 1974 when he just purchased a new Cortina car.  He had been in a heavy drinking session then drove the car, swiping four posts before landing in the car on its roof.  During his periods of employment, he has continuously taken a great deal of time off on sick leave, he stated, because he was too ill to go to work following heavy drinking activities.  Mr Taylor has also been involved in fights following drinking sessions at hotels, but has not been charged.  He now walks to the RSL Club where he drinks and does not drink and drive any more.

27.     In relation to his claim for post traumatic stress disorder, Mr Taylor made this after approaching the Vietnam Veterans’ Association.  This organisation also advised him that he should see a psychiatrist, hence his consultation with Dr Westerink.  He stated that he had not seen Dr Westerink when the claim was completed, although it was noted that the claim form was lodged after the first appointment with Dr Westerink, which occurred on 18 January 1999.  Mr Taylor explained that the form had been completed prior to seeing Dr Westerink but not lodged.  Mr Taylor completed the claim form (T4) but did not complete the Claimant Report Alcohol Questionnaire (T5) which was completed with the assistance of an advocate. 

28.     Mr Taylor finds it difficult to speak about his feelings and problems except to Dr Westerink.  He had not even talked to his mother about his difficulties, but did so after speaking to Dr Westerink.  Mr Taylor stated that he avoids discussing such matters and tries to block his feelings out.  He stated that he does not like thinking about things and does not know why. Mr Taylor described getting on well with Dr Westerink who has helped him.  He noted that when he saw the Navy Psychologist, Mr A Camac, he had not been asked about any distressing experiences occurring during his naval service.  Mr Taylor did not think that the incidents which he now believes have caused his problems, at that time, were linked to his poor performance and unhappy feelings. 

29.     Mr Taylor stated that since service in Vietnam, he has not had any steady relationships.  He believes this is because he is too argumentative.  Currently, Mr Taylor described his situation of having few friends and of him being socially restricted.  He will attend a football game when there is a home match.  Mr Taylor stated he has no other hobbies, he does not go to movies or social clubs, apart from the RSL Club where he drinks.  He now is able to get on well with his mother and sister.

CONCURRENT MEDICAL EVIDENCE OF DR J WESTERINK, CONSULTANT PSYCHIATRIST, AND DR R HAIK, CONSULTANT PSYCHIATRIST

Dr J Westerink

30.     Medical reports were before the Tribunal from Dr J Westerink, Consultant Psychiatrist, dated 18 January 1999 (T6, p36) and 8 March 1999 (T6, p35). The Tribunal also had available to it the Clinical Notes from St John of God Hospital (Exhibit R3) and Dr Westerink’s reports dated 12 October 2000 and 19 October 2000 (T12, pp78,79); 25 February 2002 (Exhibit A4); and, 4 July 2002 (Exhibit A5). Dr Westerink and Dr Haik gave concurrent evidence at the hearing. The Tribunal also had available to it a Medical Impairment Assessment completed for the Department of Veterans’ Affairs by Dr LD Kumar on 12 March 1999 (T7, p37). Dr Westerink also referred to a structured interview entitled “Clinician Administered Post Traumatic Stress Disorder Scale” (“CAPS”) undertaken by Ms A Cook, Clinical Psychologist, on 6 October 1999 (Exhibit A5).

31.     In Dr Westerink’s initial report of 18 January 1999 to Dr Kumar concerning Mr Taylor, he concluded, “I made a diagnosis of Post Traumatic Stress Disorder, Anxiety Disorder and Alcohol Dependence”.  In his report of 8 March 1999, Dr Westerink further opined, “In summary he has chronic Post Traumatic Stress Disorder and Alcohol Dependence related to his time in Vietnam waters”.  In his report to Vardanega Roberts, Solicitors, dated 25 February 2002, Dr Westerink confirmed his earlier opinion that there was a “reasonable hypothesis” linking Mr Taylor’s war service and his post traumatic stress disorder and alcohol dependence. In answer to questions addressing a psychologist’s 1973 report concerning Mr Taylor, Dr Westerink concluded that:

“...The psychologist did not address possible causes for Mr Taylor’s concentration problems, which are likely to have been due to him having Post Traumatic Stress Disorder. Poor concentration is a prominent symptom of Post Traumatic Stress Disorder. However the diagnosis of Post Traumatic Stress Disorder did not appear in the DSM until DSM 2 (1980). His diagnosis was confirmed by a Clinician Administered Post Traumatic Stress Disorder Scale (CAPS) examination dated 1 June 1999”. (Exhibit A4)

Dr Haik

32.     In his report dated 28 February 2002 (Exhibit R1, p7), Dr Haik opined that Mr Taylor suffers from schizoid personality disorder and that this condition has no relationship to Mr Taylor’s naval service.  After close consideration, Dr Haik could not be satisfied, based on the Statements of Principles concerning Post Traumatic Stress Disorder or Alcohol Dependence or Abuse that Mr Taylor met the relevant diagnostic criteria.  Paragraph 4.2 of Dr Haik’s report provided the basis for his diagnosis of schizoid personality disorder.  Dr Haik noted that the “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition (“DSM-IV”), defines schizoid personality disorder as a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings which begins in early adulthood and presents in a variety of contexts as indicated by at least four of the following:

1.    neither desires or enjoys close relationships, including being part of a

family  3

2.    almost always chooses solitary activities 3

3.    has little, if any, interest in having sexual experiences with another person 3

4.    takes pleasure in few, if any, activities 3

5.    lacks close friends or confidants other than first degree relatives 3

6.    appears indifferent to the praise or criticism of others 3

7.    shows emotional coldness, detachment, or flattened affectivity 3

Concurrent Evidence

33.     At Hearing, Dr Westerink in his summary of opinion, stated that the history he obtained from Mr Taylor on 12 January 1999, included sufficient symptoms to make a diagnosis of post traumatic stress disorder. He noted that many patients with post traumatic stress disorder have symptoms of co-morbidity with depression, anxiety and alcoholism the common morbidities. Dr Westerink opined that the onset of post traumatic stress disorder occurred when Mr Taylor was still in the Navy.

34.     Dr Westerink referred to a structured interview, CAPS, performed by Ms Cook, Clinical Psychologist, which confirmed that Mr Taylor had a post traumatic stress disorder. Dr Westerink agreed that the CAPS report was performed by Ms Cook and not himself and that she relied on his findings for a post traumatic stress disorder stressor. Dr Westerink thought Mr Taylor’s experience in the Navy caused that condition.

35.     Dr Haik in his summary of opinion was unable to find a diagnosis of post traumatic stress disorder but believed Mr Taylor suffered from a personality disorder. Dr Haik had reached this diagnosis using DSM-IV and considered that Mr Taylor’s circumstances met the criteria contained in the relevant Statement of Principles concerning Personality Disorder, Instrument Number 143 of 1995. Dr Haik’s  reason for not finding post traumatic stress disorder was that he was not able to find a precipitant or stressor which could be considered a “disaster” or  “catastrophe.”

36.     In discussing each other’s opinions, Dr Westerink considered the point of argument was not to justify the diagnosis of post traumatic stress disorder, but whether the stressor was sufficient to be responsible for the disorder.  Dr Westerink noted that the research literature agrees that it is the perception of the person that matters, rather than what actually took place. Thus, it is how the event is seen and interpreted, rather than the actual event itself.  In Mr Taylor’s case, Mr Taylor felt that others in another ship were “copping it ”. Dr Westerink stated of Mr Taylor that  “… he, as an 18-year-old, must have thought, that this was a war zone.” The stressor which met the diagnostic criteria and the Statement of Principles’ definition of experiencing a severe stressor was that Mr Taylor found himself confronted with the shots being fired at the other ship and the helplessness he felt and experienced when no rescue was to be organised.  He was anxious not for his own life, but the other sailors’ lives. Just being in a war zone was not sufficient to be defined as a stressor, Dr Westerink opined.

37.     Dr Westerink considered Mr Taylor’s symptoms fitted post traumatic stress disorder much better than schizoid personality disorder. People with schizoid personality would drink at home and not the club, they would not play darts and would not go to football games. Having said that, Dr Westerink recognised that a number of personality changes occur after post traumatic stress disorder and some of these personality changes were permanent. There was also argument whether these personality changes predated the post traumatic stress disorder or not and the general view was that sometimes they predate, but more often than not, they were the result of the disorder.

38.     Dr Haik’s argument in relation to the diagnosis of post traumatic stress disorder is that there was no objective stressor experienced by Mr Taylor.  Dr Haik referred to the American text, Kaplan and Sadock’s “Synopsis of Psychiatry” (Exhibit A6, p629) where there was discussion of stressors such as torture and brain washing. Dr Haik emphasised that objective criteria were required, not what somebody thought was happening on a boat a kilometre away or what might be happening to military combatants in the jungle of Vietnam. Later during cross-examination by Mr Colborne, Dr Haik stated that he did not know of this text’s reputation within the profession. When asked what reference source he used to diagnose personality disorder, Dr Haik replied DSM-IV. Considering the Kaplan and Sadock text as distinct from the Statement of Principles, Mr Colborne inquired of Dr Haik’s opinion of the proposition that events that may appear mundane or less than catastrophic to most persons may produce post traumatic stress disorder in some cases. Dr Haik accepted this as a theoretical possibility if there was no other reason.  Dr Haik agreed to Mr Colborne’s proposition that the likelihood of contracting post traumatic stress disorder was influenced by the individual’s vulnerability.

39.     Considerable debate followed, Dr Westerink holding that the traumatic incident or stressor may not have been as severe as that experienced by many people that he has seen with post traumatic stress disorder, but it was still of sufficient severity to cause Mr Taylor’s post traumatic stress disorder.  Dr Haik’s position remained that Mr Taylor was not exposed to a severe stressor as defined in the Statement of Principles. Dr Haik agreed that the fact that Mr Taylor was young when in Vietnam would mean that the stressors he experienced would have a greater impact on him.  Dr Haik continued that he did not have the facts to make a diagnosis of post traumatic stress disorder and he explained Mr Taylor’s symptoms as the consequence of a personality disorder.  Dr Westerink and Dr Haik confirmed that they were at variance in their interpretation of a stressor.

40.     Mr Marsh indicated inconsistencies in accounts of the stressor(s) in Dr Westerink’s reports, namely of there being no mention of the minesweeper incident in his reports of 18 January 1999 (T6, p36) and 8 March 1999 (T6, p35).

41.     Dr Westerink noted that veterans did not always provide all their history, but he did not know why Mr Taylor did not mention the mine incident to him. Dr Westerink explained the discrepancy by Mr Taylor about the mines on the hull noting that the way he remembered their discussion, Mr Taylor told Dr Westerink that he initially believed there were mines present, but later noted that it was not so (Transcript, 24 February 2003, p43).

42.     Later in cross-examination when asked if one experienced a severe stressor, as required by definition, whether the person would have a fairly good memory of that stressor, Dr Westerink opined that most people, but not all post traumatic stress disorder sufferers, remember the traumatic event.  In Mr Taylor’s case, Dr Westerink stated that he did not think he had a clear memory of the minesweeper incident.  Dr Westerink noted:

“It’s the stressors that naval personnel experience tend to be nothing like the stressors that people in the infantry experience, and sometimes, like Mr Taylor, there have been other naval veterans that I’ve seen that really, the stressors do not involve danger to themselves as it didn’t in Mr Taylor’s case, and when that is the case, even though in my view and most people who work with PTSD’s (post traumatic stress disorder’s) view, it’s sufficient to make the diagnosis. It is not sufficient for the Department to accept it.”     (Transcript, 24 February 2003, p37)

43.     Dr Westerink stated that the Department took that position because it did not regard the experience as a severe stressor as defined.  Dr Westerink noted that the mere fact of presence in a war zone was probably not a sufficient stressor for the purposes of post traumatic stress disorder, but was close to it.

44.     Dr Westerink agreed that there was no reference to nervousness or anxiety in the Navy psychologist, Mr A Camac’s report dated 20 February 1973 (T12, p74) and any reference to either nervousness or anxiety was Mr Taylor’s account to him. Albeit there must have been a reason for Mr Taylor being told to see a psychiatrist.  Dr Westerink was not clear what made Mr Taylor’s behaviour change, a fact confirmed by his mother and sister, whereas Dr Haik considered it as part of growing up.

45.     Dr Haik stated that the criteria defined in the Statement of Principles were insufficient to make a diagnosis of post traumatic stress disorder. In reaching that conclusion, Dr Haik relied on Mr Taylor’s account rather than methodically transgressing the Statement of Principles requirements with Mr Taylor during examination. Dr Haik further noted that he does not treat patients with post traumatic stress disorder. Dr Haik stated that Mr Taylor knew all the criteria. Dr Haik was also concerned that Mr Taylor did not mention the stressor now being relied on in his claim for pension (Transcript, 24 February 2003, p16). Mr Taylor’s history was confused, including that there were no mines found on the hull of Mr Taylor’s ship and that he had told Dr Westerink that there were no mines found, yet in his earlier statements he had indicated that there were mines on the hull (Transcript, 24 February 2003, p25).

46.     Dr Westerink considered that Mr Taylor had not been coached and that he was a “pretty genuine sort of fellow” and told the truth. He did not think he malingered. Dr Westerink stated that Mr Taylor does not like talking about what happened to him and unless he is asked, he will not give answers (Transcript 24 February 2003, p17).  Referring to the CAPS analysis (Exhibit A5), and noting that this is a profile the Department of Veterans’ Affairs likes to use, Dr Westerink pointed out that Mr Taylor had five symptoms for criterion B, three symptoms for criterion C and four symptoms for criterion D, which are sufficient to formulate a diagnosis of post traumatic stress disorder.

47.     Mr Colborne posed the question to the doctors that if Mr Taylor was said to lack calmness, quick reactions and clear headedness, with impaired work capacity as was suggested in service documents, what would those characteristics be consistent with? Dr Westerink opined that post traumatic stress disorder can affect people in those ways. It causes hyperarousel and poor concentration, irritability and difficulty in comprehending what has  been asked of them. Dr Haik’s view is that agitation and slowness would indicate that Mr Taylor was anxious. Dr Haik did not however consider that Mr Taylor had a generalised anxiety condition as Dr Haik had no evidence of Mr Taylor being anxious over the years. Mr Colborne referred Dr Haik to documents from Mr Taylor’s treating doctor, the notes from St John of God Hospital, the evidence of his sister and his own evidence of anxiety symptoms. Dr Haik stated:

“I don’t have his own evidence and I don’t have any evidence at all until 1999. He merely wandered through life. He was socially isolated. He didn’t –had no interest in women. He went to work to survive. He led a very boring and a very unfulfilling life. He went for a drink because he had nothing else to do.” (Transcript, 24 February 2003, pp29, 30)

48.     The psychiatrists were taken through the Statement of Principles Instrument Number 143 of 1995 as amended by Instrument Number 13 of 1997 concerning Personality Disorder.  Dr Westerink had no quarrel that some of the Statement of Principles’ requirements were met, but that was only since Mr Taylor had been in the Navy but not before.  Dr Westerink drew the distinction between a person who is shy and someone who has a schizoid personality.

49.     The Tribunal asked Dr Westerink if he had considered the diagnosis of personality disorder. His reply was that many people with post traumatic stress disorder, including Mr Taylor, have personality disorder features. Mr Taylor’s behaviour before he went in the Navy was certainly not schizoid. He was a member of a Boys Club. He played football – he went out with his mates. Dr Westerink considered a schizoid personality would have been present during adolescence. Certainly the schizoid features that he showed now, for example living by himself and not going out much, were not present before he went to the Navy. Therefore the diagnosis of life long schizoid personality disorder cannot be made, Dr Westerink opined. Dr Westerink reported that there were no features of personality disorder, including schizoid personality disorder while Mr Taylor was in St John of God Hospital for his 25 day program nor in subsequent consultations with Dr Westerink. He stated that nurses and other allied heath professionals are very good at picking up people with personality disorder.

50.     While Dr Haik opined that Mr Taylor had a schizoid personality disorder, he was not suggesting there was a causal link between personality disorder and the Navy.  Dr Haik believed the onset of the personality disorder was:

“I suspect, in late adolescence, it was evident. And I say that because – and this is supported by the notion of what the psychologist found. Why did they consider him as unsuitable?”  (Transcript, 24 February 2003, p22)

51.     While Dr Haik noted Mr Taylor’s history of being sociable and active as a child, he stated that the Tribunal should consider that Mr Taylor has a poor memory and that it was possible that his memory of his school life is not good and he was not quite so active and sociable (Transcript, 24 February 2003, p22).  Furthermore, while Dr Haik was aware of evidence that Mr Taylor’s best friend is a third cousin, his social activities are going to the football and drinking at the pub and not at home and has difficulty expressing anger, Dr Haik considered these activities and other behaviours are indicative of a personality disorder.

52.     In response to the Tribunal’s reference to Statement of Principles Instrument Number 143 of 1995 as amended concerning Personality Disorder and Factor 1(a) –“suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder”, Dr Haik did not believe Mr Taylor was exposed to a catastrophic experience.

53.     Considering other possible diagnoses of Mr Taylor’s condition, Dr Haik did not consider that Mr Taylor met the criteria in the relevant Statement of Principles concerning Psychoactive Substance Abuse or Dependence in the form of alcohol dependence or alcohol abuse. Dr Westerink considered Mr Taylor has an alcohol problem which was a co-amenity of his post traumatic stress disorder.  Dr Westerink concluded that Mr Taylor’s predominance of symptoms is anxiety and he has a substantial alcohol problem (Transcript, 24 February 2003, p26).

54.     Dr Haik did not recall any evidence of anxiety when he read the T Documents until 1999 when it was suggested he had post traumatic stress disorder.

55.     In conclusion, Dr Westerink stood by his diagnosis of post traumatic stress disorder with co-morbidity of anxiety disorder and alcohol dependence.

56.     Dr Haik stood by his diagnosis of schizoid personality disorder concluding that Mr Taylor was disabled during his adolescence through social awkwardness. He joined the Navy hoping to make his life worthwhile. Dr Haik opined that Mr Taylor found the Navy in itself stressful because of the proximity of other people. That is why, Dr Haik stated, Mr Taylor was not uncomfortable getting out three years later and being found unsuitable. Mr Taylor has lived his life thereafter in a fashion that conforms to the criteria of a personality disorder. Dr Haik stated that it is not known why people have personality disorders but, presumably, it has some genetic basis.

57.     Dr Haik was unable to accept the diagnosis of post traumatic stress disorder.  He questioned the conclusion of the 1999 CAPS report that relied on an event in 1973. To argue that the particular stressor was sufficient to ruin his life by disabling him with the symptoms that he has had for 30 years seemed excessive to Dr Haik. Dr Haik reiterated his concerns that Mr Taylor had sought no treatment for his symptoms.

EVIDENCE OF DR LD KUMAR, GENERAL PRACTITIONER

58.     A Medical Impairment Assessment of post traumatic stress disorder was undertaken by Dr Kumar on 12 March 1999 (T7). Dr Kumar noted that Mr Taylor had “Anxiety all the time since 10 years, gets depression. Wakes up at night time with flashback of war experiences 2-3 times a week. Drinks alcohol to calm himself (six schooners a day). Can’t concentrate, mind wanders at times.” Dr Kumar further noted that Mr Taylor’s post traumatic stress disorder had features of anxiety and depression and that he drank six or more alcoholic drinks to cope every day at work.

SUBMISSIONS

Applicant’s Submissions

59.     Mr Colborne submitted that the Statement of Principles are irrelevant to the diagnosis of the condition suffered by a veteran. This follows from the judgment in Benjamin v Repatriation Commission (2001) 70 ALD 622, in which the Full Court stated (at paragraph 55):

“The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease.”

60.     Mr Colborne submitted that the Tribunal should make its findings in relation to diagnosis by having regard to the expert evidence and publications before it. It should not simply apply its understanding of DSM-IV.  Mr Colborne noted that despite what was put at the hearing, the Respondent's written submissions at paragraph 13 look to DSM-IV, and not the Statement of Principles, for the purpose of determining what constitutes post traumatic stress disorder.  Mr Colborne submitted that the Respondent asserts that the question of diagnosis is to be determined by applying the diagnostic criteria in DSM-IV. This ignores DSM-IV's statement that it is meant to serve as guidelines to be informed by clinical judgment and not in a cookbook fashion. It also ignores the less rigid approach to diagnostic criteria commonly adopted by psychiatrists appearing before the Tribunal and authoritatively endorsed, at least in respect of the type of stressor required for post traumatic stress disorder, by the last two editions of the “Synopsis of Psychiatry”.  The Tribunal should, Mr Colborne further submitted, make its findings as to diagnosis by having regard to the expert evidence and publications before it. It should not simply apply its understanding of DSM-IV.

61.     Mr Colborne noted  that the Respondent relies on the finding in Re Budworth and Repatriation Commission [2000] AATA 127 as to type of stressor required for post traumatic stress disorder. Cases such as Re Budworth and Repatriation Commission (supra), at one extreme, and Re Binding and Repatriation Commission [1998] AATA 340 upheld by the Federal Court in Repatriation Commission v Binding [1999] FCA 974, at the other, are of limited assistance because each case turns on its own evidence and facts. For example, in those cases the Tribunal did not appear to have had its attention drawn to what authoritative texts state about post traumatic stress disorder. The Respondent referred the Tribunal to the passage from Re Budworth and Repatriation Commission (supra), at paragraph 62 and 63, that:

“62… the nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective “extreme”. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2).  That diagnostic criterion requires the presence of “intense fear, helplessness or horror”. This is an extremely high level of reaction to extremely traumatic stressors.

63. The types of incidents in the minds of the authors which would amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on.”

62.     Mr Colborne submitted that this focused on particularly extreme stressors referred to in DSM-IV. The Tribunal in that case did not refer to the cannon of construction that applies to remedial provisions or address the fact that DSM-IV also includes, as examples of “extreme stressors", learning about a serious accident or serious injury experienced by a family member or close friend.  If learning about a serious accident or injury to a close friend is sufficient, it is difficult to see why, Mr Colborne contended, that witnessing the crew of a beached and apparently defenceless minesweeper being “raked” by machine gun fire or being at life boat stations for several hours, while a ship's hull is searched for mines, do not constitute "extreme stressors”.

63.     Mr Colborne submitted that it was the occurrence of two incidents while Mr Taylor was serving in HMAS Perth that led to his current psychiatric problems. In relation to an incident with the minesweeper, the occurrence of this incident is confirmed by Commander Wright.  Mr Colborne submitted that at that time, Mr Taylor was on lookout duties when he saw the minesweeper aground and being fired upon.  Consistent with Commander Wright’s account, Mr Taylor thought the shooting was “a couple of hundred yards” from the minesweeper.  Mr Taylor thought that HMAS Perth was about 500 metres from the minesweeper, which is closer than Commander Wright’s estimate of approximately 2000 metres. In considering Mr Taylor’s recollections, these are 32 years after the event and Mr Colborne asked the Tribunal to take this into account, as well as noting that Mr Taylor was observing this event through night vision binoculars which might have influenced his perception of distance.  Mr Taylor had recounted this incident long before there was any corroborative evidence and there is no reason for the Tribunal to doubt that Mr Taylor witnessed this incident. If the Tribunal so found, Mr Colborne submitted that it follows that Mr Taylor witnessed an event that involved threatened death or serious injury. Mr Taylor was shocked by HMAS Perth’s inability to help. Mr Colborne contended that the strength of Mr Taylor’s response is indicated by his being left with intrusive thoughts of the incident and his consumption of alcohol to calm him down because he felt like a “startled rabbit” and could not sleep. Such an experience is one of intense helplessness and horror, Mr Colborne concluded. Mr Colborne further noted that this was one of two incidents that Mr Taylor had been unable to talk about until he saw Dr Westerink.  While Dr Haik thought this strange, it is discussed in the Statements of Mr Taylor’s mother and sister.

64.     In relation to the mine incident, the records show that there was concern of mines and this lasted for three and a half hours.  Mr Colborne noted that Mr Taylor confirmed for the Tribunal that no mines were found and he had been confused about what had happened. It may have been that once he saw the information from the Department of Defence, it clarified his recollections.  However, there is no reason for the Tribunal to doubt that for three and a half hours, Mr Taylor had good reason to believe that there may have been mines attached to HMAS Perth, as did other members of the crew.  Mr Colborne submitted that this incident meets the DSM-IV criteria for a stressor.  Mr Taylor stated he was fearful for his life.  He thought his ship might sink or be badly damaged. Clearly the Captain of the ship thought there was a threat and got everyone to lifeboat stations and had the hull searched.  This was not a drill. Mr Colborne contended that there was nothing fanciful about this incident and Mr Taylor as a young sailor was traumatised.  It is clearly open to the Tribunal to conclude, Mr Colborne submitted, that Mr Taylor’s response involved intense fear, helplessness or horror.

65.     While Dr Haik had difficulty that Mr Taylor had not earlier told anyone he was nervous, felt helpless or was scared, this is not surprising, Mr Colborne submitted, because Mr Taylor was a young sailor who would not want to readily admit to being scared.  He drank to forget what had happened to him.  Mr Taylor noted that the other sailors thought it funny that he was scared.  It was not surprising therefore that he did not mention his feelings to the psychologist.

66.     Furthermore, Mr Colborne submitted that the Respondent is wrong to suggest that the finding in Re Budworth and Repatriation Commission (supra), as to what constitutes an extreme stressor, was endorsed by the Full Federal Court in Repatriation Commission v Budworth (2001) 116 FCR 200. That was not an issue before the Full Federal Court. Mr Colborne noted that it is true that, at first instance, the Federal Court found in Budworth v Repatriation Commission (2001) 63 ALD 422 that the Tribunal had not erred in law in its approach to what constitutes an extreme stressor. That in no way endorsed the Tribunal's finding as one the Court would have made any more than the Court endorsed the Tribunal's findings in Re Binding and Repatriation Commission (supra). The Respondent is confusing the difference between merits review and appeals limited to questions of law, Mr Colborne submitted.

67.     In Jones v Dunkel (1959) 101 CLR 298, a principle was established that when applied to this case, indicated that the Applicant's failure to call Dr Dinnen means the Tribunal may draw an inference favourable to the Respondent, for which there is already evidence. However, Mr Colborne submitted that the failure to call Dr Dinnen does not allow evidentiary gaps to be filled. Nor can it be inferred that Dr Dinnen's evidence would have been unfavourable to the Applicant. Mr Marsh is wrong, Mr Colborne contended, that Jones v Dunkel (supra) allows the Tribunal to draw the inference that Dr Dinnen "agrees" with Dr Haik's diagnosis.

68.     Mr Colborne referred to Dr Haik’s evidence in which he stated that he had never treated a patient with post traumatic stress disorder, did not know what discretion DSM-IV gave him to depart from its criteria and was unable to venture an opinion on the status of the text, Synopsis of Psychiatry, amongst psychiatrists. Dr Haik testified that he was bound as a clinician to apply the criteria in DSM-IV and that Mr Taylor had not experienced the required type of stressor. Later, he agreed with the statement in the Synopsis of Psychiatry, to the effect that what appeared mundane to most people could be a sufficient stressor to cause post traumatic stress disorder in those who were vulnerable. Mr Colborne contended that despite the Applicant's failure to call Dr Dinnen, the Tribunal will have extreme difficulty in accepting any of Dr Haik's opinions.

69.     Turning to the consideration of the possible diagnosis of Generalised Anxiety Disorder, Mr Colborne noted that there is a material difference between the Statements of Principles concerning Generalised Anxiety Disorder. Instrument Number 48 of 1994 as amended by Instrument Number 275 of 1995, requires a "stressful event" to be experienced which is defined as:

"stressful event" means an occurrence which evokes feelings of anxiety or stress.”

Instrument Number 1 of 2000 requires experiencing a "severe psychosocial stressor" which is defined as:

"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 ”

70.     Thus, Mr Colborne submitted that the applicable Statement of Principles for Generalised Anxiety Disorder is Instrument Number 48 of 1994 as amended by Instrument Number 275 of 1995. The Respondent is wrong, Mr Colborne further submitted, in claiming that there is nothing in the material to point to the features and signs of generalised anxiety disorder within two years of operational service, based on the definition of generalised anxiety disorder in DSM-IV at page 435:

“A.Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).

B.        The person finds difficult to control the worry.

C.The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the previous 6 months). Note: Only one item is required in children.

(1)     restlessness or feeling keyed up or on edge

(2)      being easily fatigued

(3)     difficulty concentrating or mind going blank

(4)       irritability

(5)      muscle tension

(6)sleep disturbance (difficulty falling or staying asleep, or restless  unsatisfying sleep)

D.The focus of the anxiety and worry is not confined to features of an Axis 1 disorder, eg the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.

E. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

F. The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medial condition ( e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.”

71.     Mr Colborne noted Mr Taylor’s evidence that following the first trip to the gun line, he stated that he increased his alcohol consumption to help him relax, sleep and forget because he felt like “a startled rabbit” all the time. Thus, the evidence of Mr Taylor's drinking to help him sleep following the first trip to Vietnam points to sleep disturbance within two years of the incidents in October 1970.  After his return from Vietnam, presumably in 1971, his mother noted that Mr Taylor appeared moody and withdrawn and would not talk about Vietnam. In May 1972, Mr Taylor failed a basic Signals Course because, amongst other things, he could not concentrate properly.  Mr Taylor’s evidence, which should be accepted, indicated that he also had intrusive thoughts and his mind wandered. He was referred to the Navy psychologist because he was underperforming.  Thus, Mr Taylor met three of the requisite criteria in category C. Dr Haik noted that there must have been serious problems for him to be referred to the psychologist. Mr Colborne referred to the Captain of HMAS Vampire writing on 16 October 1973 that Mr Taylor lacked calmness, quick reactions and clear headedness. Dr Westerink had opined that this was consistent with post traumatic stress disorder and Dr Haik had noted it was consistent with anxiety. What it is not consistent with, Mr Colborne submitted, is schizoid personality disorder. This material points to continual anxiety that was present while working and studying in the Navy and when he was with his family, Mr Colborne submitted. The evidence points to anxiety and worry suffered in the Navy that was general and not confined to any particular event or activity. This all occurred within two years of the incidents in October 1970, Mr Colborne contended.

72.     In relation to category D of the DSM-IV definition of generalised anxiety disorder, Mr Colborne noted that the Respondent asserts that the equivalent criterion in the Statement of Principles means that post traumatic stress disorder and generalised anxiety disorder are mutually exclusive. This would only be true if the Tribunal found that Mr Taylor's anxiety and worry occurred exclusively during post traumatic stress disorder.

73.     In relation to category E, Mr Colborne referred to the evidence pointing to Mr Taylor’s drinking to excess and having problems with sleep, study and with familial relationships within the two years of the incidents in 1970.  Mr Colborne noted that after Mr Taylor left the Navy, he moved back home. His mother noted constant bickering and disagreements.  Mr Taylor’s sister noted that her brother was anxious, edgy, irritable, grumpy and upset about small matters. Mr Taylor’s evidence was that he would come home inebriated and look for something to argue about and that it was this behaviour which led his mother to sell her unit in 1972, thus forcing Mr Taylor to live alone. These characteristics are not typical of a schizoid personality disorder, Mr Colborne submitted.

74.     Referring to Dr Kumar’s report and his list of the features of Mr Taylor’s symptoms, Mr Colborne noted that these are symptoms that have either been observed by the Tribunal or various other medical experts. There are independently observed features of anxiety, depression, restlessness, nervousness and an inability to follow a conversation. These indicate someone suffering from an anxiety state and not a personality disorder.

75.     Considering the Clinical Notes from St John of God Hospital, Mr Colborne submitted that there are various notations about Mr Taylor supporting Penrith Football Club, playing darts, having interpersonal relationships with his mother and mates at the club and having his third cousin Robert as his best friend. Evidence from Mr Taylor and family members is that now he is a gentle person who enjoys spending time with his nieces and nephews, but keeps things to himself.  These are not the characteristics of someone with a schizoid personality, Mr Colborne submitted.

76.     In relation to category F, Mr Colborne contended that this would only be relevant if the disturbance was due to alcohol abuse but Mr Taylor's evidence has consistently been that he drank because he was keyed up and to help him relax, sleep and forget. The anxiety led to the alcohol abuse and not the converse, Mr Colborne submitted.

77.      It is significant, Mr Colborne further submitted, that Mr Taylor's evidence about his anxiety and related symptoms is supported by his service history. In 1970, he successfully completed recruit training and was found suitable for the Communications Branch. There were no questions raised about his capacity or performance at that stage. In March 1973, he was referred to a psychologist because he was not performing to his capacity (T12, p74) and in October 1973, Mr Taylor’s Captain referred to Mr Taylor’s inadequacies for the position of a tactical operator (T12, p75). Dr Westerink testified that this description was consistent with post traumatic stress disorder. Dr Westerink considered that anxiety disorder is a concurrent diagnosis. Dr Haik testified that these were characteristics consistent with anxiety.

78.     In relation to a diagnosis of post traumatic stress disorder, Mr Colborne submitted that this diagnosis was made after Mr Taylor had been administered the CAPS on 6 October 1999.  Dr Westerink had noted that the Department of Veterans’ Affairs requires this schedule to be administered before funding Mr Taylor’s inpatient treatment. Some nine months later, Mr Taylor completed a three week closed program for post traumatic stress disorder at St John of God Hospital.  Mr Colborne submitted that despite being under very close scrutiny, there was never any suggestion that he was not suffering from post traumatic stress disorder and on the basis of the available evidence, Mr Colborne submitted that a diagnosis of post traumatic stress disorder could be made out. If there had been a personality disorder, this would have been readily apparent and Mr Taylor would have been removed from the program, Mr Colborne contended. Quite apart from Dr Westerink’s opinion, Mr Colborne submitted that from DSM-IV, the material before the Tribunal is sufficient to satisfy the requisite criteria for post traumatic stress disorder.  In so submitting, Mr Colborne stated that he did not retract from his position that you do not have to satisfy DSM-IV for a clinician to properly diagnose post traumatic stress disorder.

79.     Mr Colborne noted that the Synopsis of Psychiatry refers to children and adolescents being more susceptible to developing post traumatic stress disorder. Mr Taylor was 18 when he went to Vietnam and his sister considered her brother to be mentally young when he joined the Navy.  Dr Westerink pointed out that Mr Taylor had a family isolated upbringing and that this may have made him more susceptible and feeling less support. Thus Mr Taylor was more vulnerable because he was young, single, immature, shy, lacked peer support and was inexperienced, Mr Colborne contended.

80.     Considering alcohol abuse or alcohol dependence, Mr Colborne noted that the relevant Statement of Principles concerning Alcohol Dependence or Alcohol Abuse is Instrument Number 76 of 1998. The Applicant relies on Factors 5(a) (b) and (c). Factor 5(b) requires experiencing a severe stressor within the two years immediately before the clinical onset. The Respondent asserts that there is no material pointing to clinical onset within that period. That is not correct, Mr Colborne submitted, noting that the material points to Mr Taylor’s alcohol consumption increasing dramatically in 1971 when he returned to Australia with him drinking a minimum of five schooners and sometimes 15 to 20 a day at that point. Mr Taylor stated: "On my return to Sydney I couldn't stop drinking" and in Mr Colborne’s submission this pointed to a maladaptive pattern of alcohol use.

81.     Mr Colborne referred the Tribunal to material also pointing to recurrent alcohol use resulting in a failure to fulfil major roles. Mr Taylor would rather go out and get drunk as drinking helped him to relax. In addition, there is material pointing to recurrent alcohol use in situations in which it was physically hazardous. Mr Taylor gave evidence that he had “written off” two cars when drink/driving and had been charged with drink/driving on another occasion. The first crash occurred when he was still in the Navy "in about 1973". It is unlikely that this was the first occasion that he drove when drunk, Mr Colborne contended, and it is reasonable to infer that this hazardous behaviour probably commenced in 1971 when Mr Taylor "couldn't stop drinking".

82.     Mr Colborne contended that Dr Haik’s argument in relation to there being no alcohol dependence or abuse is weak.  Mr Colborne submitted that Mr Taylor did not consume alcohol before joining the Navy. After enlistment he had the occasional Bacardi and Cola and he did not drink his beer ration at sea.  Mr Taylor started drinking heavily as a result of the first tour of duty to Vietnam.  After returning to Australia in 1971, he was drinking a minimum of five schooners and sometimes 15 to 20 schooners of beer.  Mr Taylor’s mother and sister referred to Mr Taylor’s heavy alcohol consumption whilst in the Navy.  At the time of his claim for Disability Pension, he was drinking a minimum of six to eight schooners of beer each day, he has had two motor vehicle accidents as a result of drinking, the first when he was in the Navy and the second in 1974.  Following the second accident he lost his driver’s licence for driving under the influence of alcohol and subsequently lost his licence for the same reason and was incarcerated for being drunk and disorderly.  There have been arguments with family members, loss of employment, time off work, problems with the law and placing himself in hazardous situations in driving or in fights, as a result of alcohol consumption, Mr Colborne contended.  It is clear that Mr Taylor suffers from alcohol abuse, Mr Colborne concluded, with a long history of recurrent alcohol abuse resulting in failure to fulfil major role obligations at work and home, with recurrent social and interpersonal problems.

83.     Turning to the diagnosis of schizoid personality disorder promulgated by Dr Haik, Mr Colborne submitted that this is not a tenable diagnosis.  Mr Taylor stated that he was a shy young man and a loner who did not fit in. Mr Colborne submitted that this has to be reconciled with what he did at the time and how others saw him before he joined the Navy.  Mr Taylor remained at school until Year 10 obtaining his School Certificate.  He had friends, did reasonably well at school, joined in sporting and social activities including the Church of England Boy’s Brigade and had a girlfriend. Mr Taylor went away on camps.  There was nothing present , Mr Colborne contended, to suggest a schizoid personality disorder.  Following enlistment in the Navy, Mr Taylor successfully completed four weeks recruit training and was found suitable to join the Communications Branch.

84.     Dr Haik had noted that schizoid personality disorder is not known to have any precipitant and is generally of insidious onset. Mr Colborne submitted that this did not describe the sudden change Mr Taylor described as having occurred to him as a result of the incidents on the gun line nor does the description fit easily with the evidence provided by Mr Taylor’s mother and sister about the changes in him following his service. Further, sufferers of personality disorder do not enjoy being part of a family, however Mr Taylor has regular contact with his sisters and mother and his evidence to the Tribunal and elsewhere, is that he drives to his mother’s place at Grenfell, despite the anxiety the drive causes him, Mr Colborne further submitted.    Mr Taylor enjoys the company of his nieces and nephews.  He does not almost always choose solitary activities, as is required for a diagnosis of schizoid personality disorder..  Rather than drink at home, he chooses to drink regularly with friends or associates at the club.  His closest friend is not a first degree relative but a third cousin.  Mr Colborne noted that a characteristic of schizoid personality is a difficulty or inability to express anger.  One of Mr Taylor’s features is his argumentative nature.  It led to his mother breaking up the family home and his mother reports that Mr Taylor is still argumentative, Mr Colborne submitted.

85.     Finally, Mr Colborne noted that a person with schizoid personality would not join the Navy or later wish to remain in that environment with enforced association and contact with others.  Consistent with Dr Haik’s diagnosis, Mr Colborne contended that Dr Haik has to hypothesise that Mr Taylor might have been keen to escape the Navy, but there is no evidence that this was the case.  Mr Taylor’s  sister’s  and his own evidence is to the opposite effect.  Mr Colborne submitted that a diagnosis of schizoid personality disorder is not consistent with all of the material and fails to address the symptoms of anxiety.

86.     In conclusion, Mr Colborne submitted that the Tribunal should be satisfied that Mr Taylor has a generalised anxiety state and his claim can be dealt with on that basis alone.  In the alternative, the diagnosis could be post traumatic stress disorder.  There is certainly no doubt, Mr Colborne submitted, that Mr Taylor suffers from alcohol abuse.

87.     Mr Colborne submitted that once the Tribunal reaches a diagnosis to its reasonable satisfaction, there must then be an examination of whether a reasonable hypothesis is raised and if so, whether or not there are sufficient facts present to support the raised reasonable hypotheses.

88.     Mr Colborne submitted that the material before the Tribunal points to the following facts:

(a)Mr Taylor was a reasonably well adjusted adolescent before he joined the Navy but shy and immature.

(b)             Mr Taylor exhibited no problems during recruit training and was found to be competent for the Communications Branch.

(c) Mr Taylor did not drink prior to joining the Navy and after enlistment had the occasional drink.

(d)Mr Taylor witnessed a grounded minesweeper under sustained small arms fire for 10 to 20 minutes.

(e)Mr Taylor was shocked and horrified by what he saw and the inability of HMAS Perth to help.

(f)After going off watch he was in a daze, felt nauseous, was preoccupied by thoughts of those on the minesweeper being shot, hurt or killed and was unable to sleep for some hours.

(g)Two days after the minesweeper incident, the crew of HMAS Perth saw what they thought was an enemy diver.

(h) An alarm was sounded requiring the crew to go to lifeboat stations where they remained for some three hours.

(i)Mr Taylor was extremely scared and feared for his life and thought HMAS Perth was going to be sunk or badly damaged.

(j) As a result of one of both of these incidents Mr Taylor felt like a startled rabbit all the time.

(k)Once HMAS Perth left the gun line, Mr Taylor started drinking to help him relax, sleep and forget what happened and he started having recurring thoughts and images of the minesweeper.

(l)By the time he returned to Australia, Mr Taylor was moody, withdrawn and would not talk bout Vietnam and was drinking heavily on a daily basis.

(m)By May 1972, Mr Taylor was unable to concentrate properly when studying his basic signals course and after he finally passed the course, he could not do his work because his mind used to wander.

(n)Since leaving the Navy Mr Taylor has: drunk to excess on an almost daily basis to help him relax and sleep and forget what happened in Vietnam; he has been irritable and argumentative; he has suffered from nightmares about the minesweeper incident; he has had trouble with concentration; and, he has avoided speaking of his experiences in Vietnam. 

(o)Since leaving the Navy Mr Taylor has been a loner although he still enjoys social contact with his mother, sister, nieces and nephews, a third cousin, who is his one really close friend, and men at the local RSL club with whom he drinks on an almost daily basis.

(p) Mr Taylor’s drinking has led to two car crashes, the loss of his licence on two occasions, being locked up for being drunk and disorderly, the loss of employment, excessive absenteeism, problems with his family and fights at work and hotels.

89.     On the assumption that these facts are true, Mr Colborne submitted, then the following hypotheses are reasonable:

(a)If Mr Taylor has an anxiety state - there is no Statement of Principles and the hypothesis will be reasonable because, on the raised facts, it arose out of or is attributable to his reaction to the incidents he witnessed on operational service.

(b)If Mr Taylor has post traumatic stress disorder of a sort that meets the definition of post traumatic stress disorder in Paragraph 2 of the Statement of Principles - the hypothesis will be reasonable because, on the raised facts, the stressor is one that occurred during operational service.

(c) If My Taylor has post traumatic stress disorder but the stressor was not of the sort which the Statement of Principles requires to be met in order for it to apply - the hypothesis will be reasonable because, on the raised facts, the stressor is one that occurred during operational service.

(d)If Mr Taylor has generalised anxiety disorder - the hypothesis will be reasonable because, on the raised facts, the stressor occurred during operational service and clinical onset occurred within two years of the stressor (ie he had excessive anxiety all the time, felt keyed up all of the time and had difficult sleeping and concentration with two year of the stressor).   

(e) If Mr Taylor has alcohol abuse or dependence - the hypothesis will be reasonable because, on the raised facts, Mr Taylor suffered a psychiatric disorder at the time of onset of which occurred within two years of him suffering a severe stressor.

90.     Mr Colborne submitted that an hypothesis, based on the raised facts, will not be reasonable if it does not fit the template of a relevant Statement of Principles or is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.  There is nothing fanciful about any of the above hypotheses, Mr Colborne submitted.

91. Mr Colborne submitted that a claim will fail under subsection 120(1) of the Act if the Tribunal is satisfied, beyond reasonable doubt, that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis [Bushell v Repatriation Commission (1992) 175 CLR 416]. There is no material before the Tribunal that disproves beyond reasonable doubt any of the raised facts, Mr Colborne submitted. Nor is any fact inconsistent with any of the hypotheses established, beyond reasonable doubt.

92.     Accordingly, Mr Colborne concluded that if the Tribunal found that Mr Taylor has an anxiety state, there is no Statement of Principles and the hypothesis will be reasonable because on the raised facts, it arose out of or is attributable to his reaction to the incidents he witnessed on operational service. If Mr Taylor has post traumatic stress disorder that meets the definition of this disorder contained in Paragraph 2 of the relevant Statement of Principles, then the hypothesis will be reasonable because in the raised facts, the stressor is one which occurred during operational service. If however Mr Taylor has post traumatic stress disorder but the stressor is not of the sort that the Statement of Principles requires to admit in order for it to apply, the hypothesis will be reasonable, Mr Colborne submitted, because on the raised facts, the stressor is one which occurred during operational service (Transcript, 24 February 2003, p65).

116.   Mr Marsh submitted that It should be stressed that an inability to characterise a hypothesis by use of one or more of the negative adjectives listed in East v Repatriation Commission (1987) 16 FCR 517, that is, fanciful, too tenuous, absurd or ridiculous, does not thereby render that hypothesis reasonable. There must still be something in the material that points to each element of the hypothesis before it could be elevated to the status of being reasonable.

117.   In relation to the Applicant’s submission concerning alcohol dependence or alcohol abuse, Mr Marsh submitted that this disease is caught up in the same diagnostic dilemma that attends the other suggested diagnoses. Again, the Respondent invokes the principle in Jones v Dunkel (supra) and submits that on balance, the weight of psychiatric evidence is against this diagnosis. If Dr Dinnen had supported it in his report, that would be before the Tribunal. The Respondent submitted that the diagnosis cannot be made on the balance of probabilities. Moreover, the relevant Statement of Principles, Instrument Number 76 of 1998, contains a similar time limit factor as that for anxiety disorder. The Applicant must have experienced a severe stressor within the two years immediately before the clinical onset of the disease. This means there must be material pointing to clinical onset of alcohol dependence or abuse by October 1972.

118.    For the same reasons expressed above in relation to anxiety disorder, the Respondent submitted that there is nothing in the material that would allow a clinician to say that the necessary symptoms contained in the Statement of Principles definition of alcohol dependence or abuse were present as early as October 1972 and in particular, the service medical records are silent on the issue. Additionally, for the same reasons enunciated in relation to post traumatic stress disorder, Mr Marsh submitted that the Applicant did not experience a severe stressor within the meaning of that in Statement of Principles  Instrument Number 76 of 1998, the definition of which is identical to that in the Statement of Principles for post traumatic stress disorder.

119.   Finally, in relation to the diagnosis of personality disorder, the Respondent submitted that the Tribunal can draw the inference that Dr Dinnen supports Dr Haik and that the appropriate diagnosis, on balance, is that of personality disorder and that there is neither claim nor evidence that any factor in Instrument Number 143 of 1995 (as amended) is raised by the material.

120.   Mr Marsh submitted that to the extent that the diagnosis of personality disorder is predicated on a history of symptoms obtained from Mr Taylor, the Respondent draws attention to the Applicant's own statement dated 3 June 1999, wherein he provides a detailed picture of his personal relationships that is entirely consistent with that diagnosis (T8, pp 42,46).

121.   The Respondent submitted that the decision under review be varied by amending the diagnosis to read personality disorder, and that the decision under review, as amended, be affirmed.

FINDINGS

122.   The Tribunal has reached a decision in this matter, taking into account the evidence, the submissions, the legislation and the case law.

123.   The Tribunal sees its first task to determine to its reasonable satisfaction the correct diagnosis of any psychiatric conditions suffered by Mr Taylor as reflected in his claim. Once diagnosis is determined, the Tribunal must turn to consider whether or not the correctly diagnosed condition(s) is/are war-caused.

124.   There are a number of diagnoses being proposed for Mr Taylor's psychiatric condition.  The Tribunal considers first the diagnosis proposed of generalised anxiety disorder.  This is a diagnosis proposed by the Applicant and considered appropriate by Dr Westerink, along with the alternate diagnosis of post traumatic stress disorder.  There are Statements of Principles concerning Generalised Anxiety Disorder and also concerning Anxiety Disorder which encompasses generalised anxiety disorder.  The Tribunal notes that the diagnostic criteria for generalised anxiety disorder are essentially the same in the earlier Statement of Principles concerning Generalised Anxiety Disorder, and the later Statement of Principles concerning Anxiety Disorder which are relevant to the claim.  It is the Factors which must be considered within the different Statements of Principles for the purposes of causation which are significantly different.

125.   Dealing with the diagnosis, which the Tribunal must determine to its reasonable satisfaction as concluded in the Full Federal Court decision in Benjamin v Repatriation Commission (supra) and upheld in Fogarty v Repatriation Commission [2003] FCAFC 136, the Tribunal will deal, for ease of reference at this point and noting the diagnostic criteria are essentially the same, with the earliest Statement of Principles, Instrument Number 48 of 1994 as amended concerning Generalised Anxiety Disorder. The Tribunal is of the view, noting the Full Federal Court decision in Woodward v Repatriation Commission [2003] FCAFC 160, that in My Taylor’s case, if any of his experiences were occurrences within the meaning of subsection 9(1)(a), the question of whether the diseases which he contracted were war-caused requires the Tribunal to consider whether those diseases were caused or resulted from those experiences. The question can only be resolved by reference to subsection 120(1), 120(3) and section 120A of the Act. [See Woodward v Repatriation Commission (supra) at paragraph 105] Furthermore, it is the intent of the legislation, as also noted in Woodward v Repatriation Commission (supra) at paragraph 89, “to ensure that all future claims involving matters of medical-scientific opinion, as to which an SoP was in force, would have to meet the requirements of that SoP”, which the Tribunal considers includes diagnostic criteria. As was further discussed in Woodward v Repatriation Commission (supra) “Once an SoP is determined in relation to a particular condition, it covers the field in relation to that condition” [at paragraph 100].  The Full Federal Court noted that the Statement of Principles have been developed by an expert medical panel and need to be interpreted against that background.  This is particularly so when the Statements of Principles adopt a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialities. The Full Federal Court noted that this is what the relevant Statement of Principles does in its express reference to DSM-IV and the relevant ICD Code [at paragraph 113].

126.   The Tribunal notes that from the material, Mr Taylor has suffered from anxiety and worries for at least six months such as occurring in his study during service in the Navy, in his work both during and post Navy service and that he increasingly found it difficult to contend with [Paragraph 4(a)(i) of Statement of Principles Instrument Number 48 of 1994 as amended concerning Generalised Anxiety Disorder]. The Tribunal also notes that in the Navy and afterwards, Mr Taylor described feelings of restlessness [Paragraph 4(a)(ii)(A)].  Mr Taylor described being easily fatigued in the Navy and subsequently [Paragraph 4(a)(ii)(B)].  Mr Taylor described concentration difficulties in his naval service, which lasted for more then six months in the Navy and post service [Paragraph 4(a)(ii)(C)].  Furthermore, the material from Mr Taylor and his mother and sister indicates irritability for greater then six months in the Navy and post service [Paragraph 4(a)(ii)(D)].  Mr Taylor also described sleep disturbance for a period of greater then six months and continuing [Paragraph 4(a)(ii)(F)].  Thus, Mr Taylor satisfies five criteria, only being required to satisfy three criteria contained within Paragraph 4(a)(ii) of the Statement of Principles.

127.   In relation to Paragraph 4(a)(iii), the focus of Mr Taylor’s disorder is not confined to the features of an Axis 1 disorder and is not about: a panic disorder; social phobia; obsessive-compulsive disorder; separation anxiety disorder; anorexia nervosa; somatization disorder; or, hypochondriasis.

128.   In relation to Paragraph 4(a)(iv), the Tribunal is not reasonably satisfied that post traumatic stress disorder is the appropriate diagnosis because the preponderance of Mr Taylor's symptoms, on a consideration of the diagnostic criteria contained within the Statements of Principles Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder are not satisfied in Criteria A, B, C, D, E and F to the requisite levels.  While Mr Taylor may have some of features of post traumatic stress disorder, the Tribunal is reasonably satisfied that generalised anxiety disorder is a better fit when all the symptoms are considered.  A consideration of the diagnostic criteria of post traumatic stress disorder contained within the relevant Statement of Principles and derived from DSM-IV, which the Tribunal finds it must apply, are not fully satisfied to the Tribunal's reasonable satisfaction.

129.   Similarly, the Tribunal is reasonably satisfied that personality disorder is not the appropriate diagnosis as in the amending Statement of Principles, Instrument Number 13 of 1997 concerning Personality Disorder, Paragraph 2(d) requires that the pattern of a disorder is stable and of long duration and has an onset in adolescence or early adulthood. The material points to changes in Mr Taylor's case following exposure to incidents in the Navy although causation is not being considered at this stage.  Furthermore, the Tribunal is satisfied that the enduring pattern of Mr Taylor’s disorder is better accounted for as a manifestation consequence of another mental disorder that is generalised anxiety disorder [Paragraph 2(e) of the amending Statement of Principles concerning Personality Disorder, Instrument Number 13 of 1997].

130.   The Tribunal is also reasonably satisfied that in relation to Paragraph 4(a)(v) of the Statement of Principles Instrument Number 48 of 1994 as amended concerning Generalised Anxiety Disorder, that Mr Taylor's anxiety or worry caused clinically significant disturbance in his work in the Navy and post service and that the anxiety is not due to the direct physiological effects of drug abuse, medications or a general medical condition [Paragraph 4(b)].  The Tribunal is further reasonably satisfied that in relation to Paragraph 4(c) of the Statement of Principles for Generalised Anxiety Disorder, the anxiety did not occur exclusively during a mood disorder, psychotic disorder or pervasive developmental disorder.  Accordingly, the Tribunal is reasonably satisfied that the correct diagnosis of Mr Taylor's psychiatric condition is generalised anxiety disorder as he satisfies the requisite diagnostic criteria.

131.   Having determined that the correct diagnosis is generalised anxiety disorder, the Tribunal turns to consider the issue of the causation of this condition. There are two Statements of Principles, Instrument Number 48 of 1994 as amended concerning Generalised Anxiety Disorder and Instrument Number 1 of 2000 concerning Anxiety Disorder.  The earlier Statement of Principles Instrument Number 48 of 1994 as amended has as a Factor reference to experiencing a stressful event [Factor 1(b)].  The later Statement of Principles Instrument Number 1 of 2000 has a Factor which requires experiencing a severe psychosocial stressor [Factor 5(a)(ii)].  Applying the principles outlined in the Full Federal Court decision in Repatriation Commission v Gorton (supra) [at paragraph 44], if the later Statement of Principles current at the time of the Commission’s decision or in this case, the Tribunal’s decision, would lead to an unfavourable result for the Applicant then an earlier Statement of Principles applying at the time of the claim which was more favourable should be applied.  This is, in the Tribunal’s view, the circumstances operating in Mr Taylor’s case and hence the Statement of Principles Instrument Number 48 of 1994 as amended is applied.  Applying the earlier Statement of Principles, Factor 1(b), requires that Mr Taylor experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder, where the stressful event is defined as an occurrence which evokes feelings of anxiety or stress.

132.   The principles outlined in Repatriation Commission v Deledio (supra) require that the Tribunal must first apply subsection 120(3) of the Act to ascertain whether or not the material points to a reasonable hypothesis. There are no findings of fact to be made at this stage. The general hypothesis is that Mr Taylor experienced feelings of anxiety and stress at seeing a grounded minesweeper being fired upon while Mr Taylor was present in HMAS Perth and his ship was unable to assist the minesweeper.. Furthermore, it is contended that Mr Taylor experienced feelings of anxiety and stress when faced with the threat of a mine having been attached to HMAS Perth’s hull. In considering the requirement of meeting Factor 1(b) of experiencing a stressful event, the Tribunal notes Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334. While that case was required to consider the condition of post traumatic stress disorder, where the Factor under consideration required “experiencing a severe stressor”, the principles asserted by Mansfield J are instructive in Mr Taylor’s case.  Mansfield J concluded at paragraph 54:

“54 Consequently, I consider the Tribunal erred in law in its understanding of the expression "experiencing a severe stressor" in each of the SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances, to the applicant's (or another person's) physical integrity before the minimum factors in each SoP could be met.

55 In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”

133.   In Woodward v Repatriation Commission (supra), the Full Federal Court in considering the definition of “experiencing a severe stressor” in the relevant Statement of Principles concerning Post Traumatic Stress Disorder, noted and accepted Mansfield J’s reasoning in Stoddart v Repatriation Commission (supra) which applied to Ms Woodward’s circumstances would have left it open for the Tribunal in Woodward to find that that material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable.  It would also have been open to that Tribunal to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat.  It would be open to conclude that there were one or more ‘events’ which precipitated the perception and that the events were real in the sense that they had an objective existence.

134.   Hence the Tribunal considers that in Mr Taylor’s case, the material points to the events of the attack on the minesweeper and the threat of a mine being attached to HMAS Perth as events which have an objective existence to which Mr Taylor reacted with feelings of fear, anxiety and stress. Although a mine was not found on HMAS Perth and Mr Taylor did not witness the results of the firing on the minesweeper, applying Stoddart v Repatriation Commission (supra) and Woodward v Repatriation Commission (supra) it is open to the Tribunal to find in Mr Taylor’s circumstances that Factor 1(b) is met in relation to experiencing a stressful event.  

135.   Mr Taylor described fearing for the safety of those aboard the minesweeper and felt helpless that his ship was not able to assist. The anxiety he expressed arising from this situation is not fanciful or beyond the realm of possibility. Furthermore, in relation to another event of there being the possibility of a mine being attached by the enemy to the hull of HMAS Perth, Mr Taylor felt extreme fear for his safety.  He was anxious and stressed when the ship's crew was alerted to go to the lifeboats and investigations were undertaken over the period of three and a half hours to ascertain whether there was a mine threatening HMAS Perth.  The Tribunal is of the view that this second incident as described, also caused Mr Taylor stress and anxiety. This is not fanciful.

136. The second element of Factor 1(b) is that the stressful event must be experienced not more than two years before the clinical onset of generalised anxiety disorder. The material points to Mr Taylor experiencing anxiety following those events in 1970. Mr Taylor described having sleep disturbances and drinking excessive quantities of alcohol when he had not previously consumed alcohol. He came to the attention of the Navy psychologist at this time. Furthermore, Mr Taylor described lacking concentration, clear headedness and he had problems with his ocupational pursuits within the Navy and continuing past 1972. The material accordingly points to an onset of generalised anxiety disorder within the two years of experiencing the stressful event, that is, by 1972. The Tribunal finds that Factor 1(b) of the relevant Statement of Principles is met and the material raises a reasonable hypothesis pursuant to subsection 120(3) of the Act, that Mr Taylor experienced a stressful event, and in this instance two stressful events, which point to the onset of generalised anxiety disorder within the two years required.. The Tribunal further finds that either event alone would meet the requirements of Factor 1(b).

137. Considering subsection 120(1) of the Act, the Tribunal must next determine whether or not there are sufficient facts to support the raised reasonable hypothesis to the satisfaction of the Tribunal beyond reasonable doubt.

138.   The Tribunal finds that the historical material and expert evidence supports the accounts of the minesweeper being fired upon and also that there was a fear spanning some three and a half hours that there was a mine attached to the hull of HMAS Perth. The Tribunal notes that Mr Taylor did not initially reveal the stressful events to the psychologist and that it was not until later when he consulted Dr Westerink that such details emerged. Mr Taylor is not a psychologist nor psychiatrist. He is not an expert in identifying the cause of his anxiety and stress. Once he felt confident in his feelings with Dr Westerink, he described the event which occurred on his first gun line trip  in HMAS Perth.  Furthermore, the Tribunal considers that any differences in estimation by Mr Taylor concerning the distance between the minesweeper and HMAS Perth, are not, in the Tribunal's view, demonstrative of a lack of credit, but rather a reflection of the distortion of memory over time and the consequences of generalised anxiety disorder and its symptoms.  The Tribunal also is of the view that Mr Taylor was hardly likely while in the Navy to further discuss his fear when he had been laughed at by other sailors when they saw he was scared. While other sailors may not have found the events described by Mr Taylor as stressful, for Mr Taylor in his late adolescence, he may have been more vulnerable to such experiences.

139.   The Tribunal also does not consider a lack of credit in Mr Taylor telling Dr Westerink that a mine was found when in fact one was not. The Tribunal accepts Mr Colborne's submission that Mr Taylor learned of the real situation concerning the mine, once appraised of the historical material.

140.   Considering whether the facts support an onset of generalised anxiety disorder within two years, contemporary service documents record that Mr Taylor was having difficulty concentrating, he was shown to lack clear headedness and was referred to the Navy psychologist. There is no material to disprove beyond reasonable doubt that Mr Taylor's stress and anxiety led him to increase his alcohol consumption on service and subsequently.  Absence of service records of increased alcohol consumption, given the availability of other material, does not disprove in the Tribunal’s view that Mr Taylor’s alcohol consumption increased, as a manifestation of anxiety within two years.  Furthermore, there is nothing to dispute Mr Taylor's evidence that he experienced sleep disturbance, worry, anxiety and lack of concentration following the first gun line trip.

141.   In all of the circumstances, the Tribunal determines that there are sufficient facts present therefore to support the raised reasonable hypothesis beyond reasonable doubt and that each incident in its own right satisfies the reasonable hypothesis that Mr Taylor suffered a stressful event not more than two years before the onset of generalised anxiety disorder.  Accordingly, the Tribunal finds that Mr Taylor suffers from a war-caused generalised anxiety disorder and Disability Pension is payable in respect of this condition with effect from and including 2 November 1998. The assessment of the correct rate of Disability Pension for generalised anxiety disorder is remitted to the Respondent.

142.   There is a further submission by the Applicant that Mr Taylor suffers from a war-caused alcohol abuse or dependence condition.

143.   The relevant Statement of Principles is Instrument Number 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.  Considering the diagnostic criteria, the Tribunal is reasonably satisfied given the material that Mr Taylor satisfies the diagnostic criteria for alcohol abuse in that he has a maladaptive pattern of alcohol use leading to a clinically significant impairment or distress as manifested in a 12 month period and the use of alcohol resulted in a failure to fulfil major role obligations at work.  In this regard, the Tribunal notes that Mr Taylor was drinking at work and that this was physically hazardous, as was the drinking and then driving. There have been alcohol-related legal problems such as loss of his driver’s licence and incarceration for alcohol-related fighting. The alcohol use continued despite persistent social and interpersonal problems including at work and with Mr Taylor's family. The Tribunal considers that on the available material, there is no evidence of tolerance and hence the alcohol dependence criteria are not met. Thus, taking all of the evidence contained within material, the Tribunal is reasonably satisfied that Mr Taylor suffers from alcohol abuse.

144.   Turning to the issue of causation, Factor 5(a) of the relevant Statement of Principles requires suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.

145. The Tribunal has already found that Mr Taylor suffers from generalised anxiety disorder having its onset during his service in the Navy and by 1972. Considering subsection 120(3) of the Act, concerning whether or not a reasonable hypothesis is raised, the Tribunal is of the view that the material points to a continued use to abusive level of alcohol by the end of the first year after service and hence, the material points to alcohol abuse. The material indicates that Mr Taylor was in trouble in the Navy.. Post Navy, Mr Taylor had alcohol-related legal problems including losing his driver's licence and had two alcohol-related motor vehicle accidents. The material thus points to a number of significant interpersonal and ocupational problems as a result of alcohol abuse. There is nothing fanciful or implausible about the apparent consequences of this level of alcohol use and hence a reasonable hypothesis of alcohol abuse as a result of generalised anxiety disorder is raised. Pursuant to subsection 120(3) of the Act, the Tribunal considers that a reasonable hypothesis has been raised.

146. Turning to subsection 120(1) of the Act, the Tribunal must determine beyond reasonable doubt whether or not there are sufficient facts raised to support the reasonable hypothesis.. The Tribunal has already made a determination that Mr Taylor suffers from a war-caused generalised anxiety disorder. The Tribunal further finds there has been no material produced to dispute that Mr Taylor had two motor vehicle accidents as a result of alcohol abuse, had lost his driver’s licence, was incarcerated as a result of alcohol-related arguments and fighting and that Mr Taylor had been absent at work because of his alcohol abuse. The drinking to abusive levels is supported by evidence not only from Mr Taylor but also from his mother and sister. The fact that the service documents do not contain material concerning Mr Taylor's level of alcohol use is not determinative of lack of proof of the alcohol abuse when one considers the evidence as a whole. In such circumstances, the Tribunal finds that the raised reasonable hypothesis is not disproved beyond reasonable doubt. For the purposes of subsection 120(1) of the Act therefore, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Taylor’s alcohol abuse was war-caused. Accordingly, the Tribunal finds that Mr Taylor has a war-caused condition of alcohol abuse with effect from and including 2 November 1998. The assessment of the correct rate of Disability Pension for alcohol abuse is remitted to the Commission.

147. In all of the circumstances pursuant to section 43 of the Administrative Appeals Tribunal Act1975 that for the reasons expressed above, the Tribunal sets aside the decision under review and in substitution therefore decides that:

(i)Mr Taylor suffers from the war-caused conditions of generalised anxiety disorder and alcohol abuse with effect from and including 2 November 1998; and

(ii)The assessment of the correct rate of Disability Pension is remitted to the Respondent.

I certify that the 147 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member

Signed:         .......................................................................................
  Associate

Dates of Hearing  5 November 2002; 24 February 2003
Date of Decision  15 August 2003
Representative for the Applicant               Mr C Colborne of Counsel 
Representative for the Respondent        Mr J Marsh, Departmental Advocate