Thorpe and Repatriation Commission
[2003] AATA 667
•15 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 667
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1392
VETERANS' APPEALS DIVISION ) Re PATRICK KENNETH RALPH THORPE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member, Dr M.E.C.Thorpe, Member Date 15 July 2003
PlaceSydney
Decision Decision under review set aside. In substitution the Tribunal decides that Mr Thorpe’s alcohol abuse and alcoholic liver damage were war-caused with effect from 20 April 1998. The matter is remitted to the Repatriation Commission for assessment.
(sgd) P. J. Lindsay
Senior Member
CATCHWORDS
Veterans Affairs – entitlement – whether post-traumatic stress disorder with alcohol abuse and alcoholic liver damage war-caused
Veterans’ Entitlements Act 1986
Repatriation Medical Authority Statement of Principles, Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Repatriation Commission v Deledio (1998) 49 ALD 193
Benjamin v Repatriation Commission (2001) 34 AAR 270
Re Budworth and Repatriation Commission [2000] AATA 127
East v Repatriation Commission (1987) 16 FCR 517
Stoddart v Repatriation Commission [2003] FCA 334REASONS FOR DECISION
P. J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member 1. This is an application under the Veterans’ Entitlements Act 1986 (the Act) by Patrick Thorpe (the applicant). Mr Thorpe seeks the review of a decision made on 17 April 1999 by the Repatriation Commission (the Commission) that refused his claim for acceptance of the conditions of post traumatic stress disorder with alcohol abuse, and alcoholic liver damage, as war-caused under the Act. The Veterans’ Review Board (the Board) affirmed the decision on 17 July 2001.
2. Mr N. Dawson, of counsel, appeared for Mr Thorpe at the Tribunal’s hearing. The Commission was represented by Ms P. Hook from the Department of Veterans’ Affairs (the Department). Mr Thorpe and Dr Dinnen, consultant psychiatrist, gave evidence at the hearing. The Tribunal had before it the documents (T documents) as lodged under s.37 of the Administrative Appeals Tribunal Act 1975 as well as supplementary documents (ST documents), and also the exhibits tendered during the hearing.
Background
3. Mr Thorpe was born on 9 September 1948 and served in the Royal Australian Navy from 6 January 1965 to 4 May 1987 (T3-9). He had the following periods of operational service in Vietnam: from 24 April 1966 to 18 May 1966 and from 25 May 1966 to 11 June 1966 (T3 p9-10). During these periods he served in HMAS Sydney as an ordinary seaman with electrical and mechanical duties. Mr Thorpe also had a period of eligible defence service from 7 December 1972 to 24 March 1987.
4. In 1994 Dr Collett, respiratory physician, diagnosed sleep apnoea and chronic liver disease as a result of Mr Thorpe’s heavy alcohol intake (T4-33).
5. In 1995 Mr Thorpe lodged a claim with the Department for a disability pension citing post traumatic stress disorder as his service-related illness (ST8-107). His claim stated:
I served on HMAS Sydney during the Vietnam War during my two tours we carried troops. In Vietnam waters grenades were thrown over the side of the ship. I believed my life was in danger. Also I feel guilty about the soldiers we took to Vietnam as I knew some would be killed in action. I have difficult [illegible] and still drink to excess. I am very unhappy.
6. The Department requested a report from Dr Pusic, a consultant psychiatrist, to whom the applicant had been referred by his G.P. Dr Clear. On 4 October 1996, Dr Pusic diagnosed chronic post traumatic stress disorder as a result of the applicant’s experiences while on service in Vietnam. Dr Pusic also diagnosed alcohol dependence (ST7).
7. Mr Thorpe withdrew his claim in 1996 (ST6) but in July 1998 lodged a new claim with the Department (T4). In this claim, Mr Thorpe cited a number of disabilities including post traumatic stress disorder and anxiety, alcoholism, liver damage, back problems, and loss of hearing. In the claim form he explained why he thought his service caused, contributed to or aggravated his post traumatic stress disorder and anxiety, alcoholism and liver damage:
I suffered a stressful experience unloading ammunition below the water line over an 18 hour period in Vietnam waters whilst ‘scare charges’ (grenades) were being dropped all around HMAS Sydney to deter and defeat any enemy activity. (T4-22)
He stated that his alcoholism was “Causally related to an addicted drinking habit in self-treatment of PTSD (ANXIETY) symptoms”, and that his liver damage was “causally related to addicted service related excessive drinking habit of over 30 years”.
8. On referral by Dr Prasad, a G.P, the applicant was examined by Dr Altman, another consultant psychiatrist. Dr Altman’s diagnosis of 10 November 1998 was that, as a result of his experience in Vietnam, Mr Thorpe suffered from chronic post traumatic stress disorder with an associated major depression and alcohol dependence (T5).
9. On 17 April 1999 the Commission refused Mr Thorpe’s claim for disability pension in respect of post traumatic stress disorder with alcohol abuse (T2). The Commission considered that Mr Thorpe had not experienced a stressor, which was a requirement for diagnosis of that condition. The Commission found that the evidence did not raise a reasonable hypothesis connecting his operational service with the post traumatic stress disorder with alcohol abuse. Further, the Commission was satisfied that the condition was not caused by eligible defence service. The Commission also maintained that there had not been a service related aggravation of the condition because Mr Thorpe’s condition had developed after his period of service. In addition, the Commission refused Mr Thorpe’s claim in respect of alcoholic liver damage from his use of alcohol in self treatment of post traumatic stress disorder. As the Commission had determined that Mr Thorpe’s post traumatic stress disorder was not service related, it concluded that there was not a reasonable hypothesis connecting this disability with either operational service or eligible defence service.
10. In opening Mr Dawson informed the Tribunal that the applicant’s case was that he suffered from psychoactive substance abuse involving alcohol, a condition which was said to be war-caused. Mr Dawson said the claim extended to alcoholic liver damage, arising from the alcohol abuse. The Commission’s statement of facts and contentions accepted that Mr Thorpe suffers from alcohol abuse or alcohol dependence, with onset after his first period of operational service. The Commission contended, however, that Mr Thorpe’s condition of alcohol abuse or alcohol dependence was not war-caused. Nevertheless, par 6 of the Commission’s statement of facts and contentions accepts that “ … should alcohol abuse or dependence be determined war-caused, alcoholic liver damage should also be accepted as a consequence of that condition if the Tribunal is reasonably satisfied that the Applicant currently suffers from it.”
evidence
11. Mr Thorpe joined the Navy on 6 January 1965, when he was almost 16 and a half years of age. He served in the Navy for over 20 years.
12. Mr Thorpe had training in HMAS Leeuwin for approximately 12 months. He was then posted to HMAS Sydney in January 1966. The Sydney sailed for Vietnam on 22 April 1966. He was 17 at the time. Mr Thorpe said that he had received a lot of in-depth training before going to Vietnam. Although he had been told what to expect and about the associated dangers, he remembers feeling full of apprehension.
13. On arrival in Vung Tau harbour, Mr Thorpe was assigned to the D ammunition party. Together with two others, a leading hand and an ordinary seaman, he had to unload the ammunition that the Sydney transported for the Army. Mr Thorpe said they worked in the ship’s magazine which was situated below the water line. He had never been in a magazine previously. There was an access hatch into the magazine, as well as a vertical shaft used for operating a lift. The lift was around three foot by three foot, just big enough to carry the ammunition boxes that they were unloading. While they were working. Mr Thorpe said they were locked in the magazine, a room he described as being about 60 feet long by about 30 feet wide with a ceiling of 10 feet. There was little space in which to work as the magazine was full to capacity. In order to get out they had to go back through the access hatch. The leading hand told him that the magazine was the prime target for enemy forces.
14. Mr Thorpe said that he worked in the magazine for 18 hours. It was his only shift because he said the idea was to unload the ammunition as quickly as possible. Meals were passed down the lift and they stopped for breaks. He was given salt tablets to keep going. Communication with other parts of the ship was undertaken only by the leading seaman.
15. While he was inside the magazine Mr Thorpe said he was extremely frightened and scared, and feared for his life. He heard scare charges being dropped and felt them vibrate the wall of the magazine. They were set off without warning. Mr Thorpe asked the leading seaman what was going on and was told that scare charges were being dropped, but he did not become used to the noise because he never knew when it was coming. He could not tell whether the explosion, when it occurred, was a scare charge, or whether it was a bomb or other explosive coming through. He was constantly scared that the bulk head would open up at any minute, that water would come pouring in and that he would have nowhere to go because they were locked in the magazine. Mr Thorpe said he did not hear a scare charge during his training or at any time before he arrived in Vung Tau.
16. In answer to Ms Hook, the applicant said the scare charges were the most frightening thing about being in the magazine because he was working in a very dangerous part of the ship. Mr Thorpe conceded, however, that no one was killed while the Sydney was in Vung Tau harbour.
17. He had some time off when he returned to Sydney. During this time he spent the first few days drinking in the pub to recuperate. He thinks it was only a couple of weeks before the ship returned to Vietnam.
18. Mr Thorpe described his second period of operational service as being free of incident. Subsequently Mr Thorpe qualified as an electrician and served for many, mainly uneventful, years as a navy submariner. There were, however, a couple of incidents that scared him. One occurred while the submarine was involved in a deep dive exercise. On another occasion he was on a submarine when one of the crew fell over the side into rough seas but was rescued.
19. He said that since his service in Vietnam, he has become frightened of loud noises. In a statement dated 8 April 2002, that was admitted in evidence as Exhibit A4, Mr Thorpe said:
After that terrible day of sheer terror in Vung Tau harbour on the first trip to Vietnam, I looked to something to give me the will and means to keep going, I was facing the fact that we were going back for a second time. I know I wasn’t alone but it felt that way, a lot of our feelings were released when we got together over a beer issue. I found the alcohol gave me a great comfort and an inner strength to deal with the day to day issues, moreover as time went on I developed a need for this comfort. … it is the first trip that haunts me and tears at my mind. The nightmares are always about being in that magazine, explosions, trapped, water pouring in and no escape. I always wake in a sweat, I sometimes find myself on the floor, … I need the alcohol to get me to sleep, I drink till I wipe myself out. This need for comfort has got me into a fair share of trouble over my naval career and my life as a civilian, my marriage has been to hell and back and I don’t think I‘ve been a good father. …
20. Mr Thorpe said he did not drink alcohol was before joining the Navy. After he left Vung Tau Harbour, despite being under 18, he managed to obtain cans of beer from the beer issue. He said he found a lot of comfort in alcohol. He had trouble with sleeping but alcohol relaxed him. Mr Thorpe said he now drinks every day, between two and fifteen schooners on week-days and up to twenty five on the weekend. He said he drinks until he wipes himself out. He has tried to stop drinking but has lasted only a day.
21. A consultation was arranged with Dr Pusic because Mr Thorpe had been having trouble sleeping due to nightmares. The history that Dr Pusic obtained referred to the applicant being apprehensive about the Sydney being attacked while he was unloading the ammunition. In a report dated 4 October 1996 (ST7) Dr Pusic recorded that Mr Thorpe described significant alcohol abuse. Dr Pusic diagnosed alcohol dependence and noted that the applicant was “ … at risk of developing physical complications of alcohol abuse.” Dr Pusic wanted the applicant to give up drinking and then return for a consultation. Mr Thorpe said he had trouble doing so and did not go back to see Dr Pusic. He said that, since his problems did not go away, he attended the Vietnam Veterans association who referred him to Dr Altman. He has been consulting Dr Altman for about three or four years and sees him on a monthly basis. On 10 November 1998, Dr Altman wrote to the applicant’s G.P., Dr Prasad (T5). Dr Altman reported that the applicant avoids thoughts about his war experiences and consequently turns to alcohol which also helps him to sleep.
22. Mr Thorpe works full time for the Department of Defence as a clerk. He said that he has missed a few days work on stress leave and alcohol leave.
23. Mr Thorpe said he began having sleeping problems after he returned from Vietnam. He said he has been diagnosed with sleep apnoea. He also suffers from recurring nightmares that he said began straight after his return from Vietnam and are based on his fears of being in the magazine. He dreams that while he is in the magazine a hole opens up, water begins pouring and he cannot get out. He has this dream three times a week. He has also had trouble concentrating for about the last ten years and his mind goes blank from time to time. He said that he gets very cranky, which he blames on alcohol.
24. On 14 January 1999, Dr Prasad completed a medical impairment assessment of pathological substance abuse (T6-41). Dr Prasad noted that Mr Thorpe drank “10-15 stubbies / beers per day”, that he had difficulties with mood depression, sleep, concentration, interpersonal relationships and pleasurable activities, and that he neglected his personal care and eating. Dr Prasad advised that Mr Thorpe was taking 20mg Lovan every morning for his psychiatric condition. It was noted that Mr Thorpe had taken part in counselling for alcoholism and had consulted a psychiatrist for his substance abuse.
25. Dr Dinnen, consultant psychiatrist, provided the applicant’s solicitors with a report dated 19 December 2001 (Exhibit A1). Dr Dinnen observed that the history given to him was similar to that recorded by Dr Altman and Dr Pusic, other than for the applicant’s account of being traumatised in childhood by his violent father. Mr Thorpe told Dr Dinnen that while he was unloading the magazine he dropped a case of ammunition, for which he was severely rebuked by the leading hand seaman. Dr Dinnen felt there was an obvious comparison between the applicant's relationship with his father and the harassment he received from the leading hand while the Sydney was in Vung Tau Harbour. Unlike Dr Pusic and Dr Altman, Dr Dinnen did not diagnose post-traumatic stress disorder preferring a diagnosis of depressive disorder, which he thought was unconnected with service. Dr Dinnen diagnosed psychoactive substance abuse and expressed his opinion as follows:
I believe that the most appropriate diagnosis therefore is psychoactive substance abuse and it appears that this dates from the time that he served in Vietnam as a teenager. He was pre-disposed to his emotional disturbance by an abusive family of origin.
The relevant Statement of Principles for Psychoactive Substance Abuse or Dependence defines alcohol abuse in a manner which I believe applies to this patient, and with regard to relevance to service requires, in factor 5(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse” and I believe the pattern of alcohol use described by the patient, where he would drink to ‘wipe out’ satisfies that requirement. Accordingly, I believe that the condition, psychoactive substance abuse is a war-caused disability.
…
The patient does suffer from psychoactive substance abuse which dates from service in Vietnam and would satisfy the Statement of Principles if that 18 hours in the magazine in HMAS SYDNEY satisfied the definition of ‘severe stressor’.
26. The respondent referred the applicant to Dr Walden, consultant psychiatrist, for assessment on 6 February 2002. In a report dated 7 February 2002 (Exhibit R4), Dr Walden recorded that the applicant did not consume alcohol at all prior to his time in Vietnam. He said he started to drink because of anxieties he experienced while unloading ammunition in the magazine during an 18 hour shift. He told Dr Walden that his level of consumption, which could be 20 to 25 schooners on a weekend and 15 on a work day, had been steady ever since he started his drinking. Dr Walden diagnosed alcohol dependence but not post-traumatic stress disorder. In Dr Walden’s opinion, the applicant did not fulfil the criteria for alcohol dependence in SoP 76 of 1998 concerning psychoactive substance abuse or dependence. Dr Walden felt that, while there was some danger in unloading live ammunition from a magazine below the water line, and Mr Thorpe was frightened by the experience, it did not objectively qualify as a severe stressor. Dr Walden stated that there is a requirement that the event “ … objectively fulfils the criteria of actual or threatened death or serious injury rather than there being only a subjective belief that an event could cause this.”
27. A report of Dr Prasad dated 24 June 2002 was received in evidence (Exhibit A6) which stated that “Mr Thorpe does suffer from Alcoholism / Alcohol Abuse. … Ultrascan of the liver done on 3.12.98 showed fatty infiltration of the liver which is most likely due to Alcohol.”
28. Two historical reports by Commodore P.M.Mulcare were taken into evidence. Mr Dawson tendered a report dated 11 November 2000 prepared by Commodore Mulcare for the Department in relation to another veteran (Exhibit A5). The report incorporated a note by Captain D. Dalton, who was the Sydney’s Engineering Officer from March 1968 to September 1970, describing his experiences while in Vung Tau harbour. Specifically in relation to the use and impact of scare charges, Captain Dalton stated:
4. The use of earmuffs or ear plugs to protect the ears in these machinery spaces, with the temperatures prevalent, was not encouraged by management because of the possibility of serious ear infections and tropical ulcers which could have permanent effects on the person.
5. Scare charges were always dropped during my time on board whilst Sydney was at anchor at Vung Tau. …
7. Dropping the charges from the motor cutters caused only muffled explosions which although quite significant when heard in the machinery spaces, was an acceptable noise in the circumstances. Charges dropped over the side by sentries sounded similar to a rawhide whip crack through the ship’s hull, which I would estimate at about 1100db, above the noise level that could do permanent damage to hearing senses. It could be quite frightening if there was no warning, …
29. Commodore Mulcare prepared a report dated 26 June 2002 (Exhibit R5) for the Department in relation to Mr Thorpe’s claim. Commodore Mulcare noted that during Mr Thorpe’s first period of operational service the Sydney had barges alongside both sides of the ship day and night. He reported that “personnel who served in SYDNEY in 1965/1966 recall that scare charges were only thrown from ship’s boats … ” due to safety concerns. As to their noise Commodore Mulcare noted that “Depending on the distance of the motor cutters from SYDNEY, the sound of scare charges explosions would have ranged from a loud thud … They were probably not all ’deafening’ but some may well have been that loud.” According to Commodore Mulcare’s research there were no shifts of 18 hours continuous work. Par 11 of Commodore Mulcare’s report stated that “The Ordinary Seamen would also have heard a myriad of ‘war stories’ from those who had already been to Vung Tau, and they would have been keyed up on arrival.”
consideration
30. Since Mr Thorpe’s claim for pension relates to his operational service, the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. Pursuant to s.120(1) a decision-maker will determine the applicant’s claimed condition to be war-caused, unless the decision-maker is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination. The decision-maker will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting that condition with the circumstances of Mr Thorpe’s service: s.120(3). As his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the decision-maker is to assess the reasonableness of the hypothesis in accordance with the relevant Statement of Principle (SoP) issued by the Repatriation Medical Authority (RMA).
31. There is a divergence of expert opinion concerning the diagnosis of Mr Thorpe’s conditions. The diagnosis of post traumatic stress disorder was made by Dr Pusic and Dr Altman, both of whom also diagnosed alcohol dependence. For Dr Pusic, intrusive and recurrent dreams were a significant indicator of post traumatic stress disorder. The diagnosis of Dr Altman was made on a global basis. Dr Dinnen, however, thought those psychiatrists did not take a history of the applicant’s childhood when he was traumatised and subjected to abuse. The childhood experience, in Dr Dinnen’s view, predisposed the applicant to emotional disturbance and he felt post traumatic stress disorder formed but a small part of the clinical picture overall. Further, Dr Dinnen noted that the applicant did not satisfy the diagnostic criteria for post traumatic stress disorder. Although Dr Dinnen found the applicant to suffer from depressive disorder, in his opinion it was not connected to service. In oral evidence Dr Dinnen said he did not consider that the applicant could be diagnosed as suffering from generalised anxiety disorder because the history did not suggest onset of such a condition within two years of operational service as required by the relevant SoP. Dr Walden, who also rejected a diagnosis of post traumatic stress disorder, thought the applicant’s long career in the Navy, especially his lengthy service as a submariner, suggested that he did not exhibit the avoidance behaviour necessary for a diagnosis of post traumatic stress disorder.
32. The overriding pathology that Dr Dinnen identified was the psychoactive substance abuse. Both Dr Dinnen and Dr Walden diagnosed psychoactive substance abuse and noted that there is an interaction between that condition and depressive illness. On balance, the Tribunal finds that the applicant’s symptoms may be diagnosed as psychoactive substance abuse (Benjamin v Repatriation Commission (2001) 34 AAR 270, 283).
33. On the basis of the reports of Dr Collett, who wrote that Mr Thorpe’s “heavy alcohol intake … is causing chronic liver disease”, and Dr Prasad, the Tribunal is satisfied that the applicant also suffers from alcoholic liver damage.
34. In reviewing the decision made by the Commission on 17 April 1999, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
35. The hypothesis put forward by Mr Dawson was that the applicant’s first period of operational service in Vung Tau harbour, while he was still a youth and an inexperienced sailor, exposed him to stressors. The applicant’s reaction to the stressors was to find relief by consuming alcohol. He submitted that heavy consumption of alcohol by the applicant meets the diagnostic criteria for psychoactive substance abuse. The applicant’s alcoholic liver damage has arisen out of his abuse of aclohol.
36. Under step 1 of Deledio, the Tribunal has to take into account all of the material before it. Based on the applicant’s evidence, which the Tribunal observes was given in a frank and open manner, and the report of Dr Dinnen, the Tribunal finds that the material raises a hypothesis connecting his psychoactive substance abuse and alcoholic liver damage with his period of operational service from 24 April 1966 to 18 May 1966. The Tribunal notes the respondent’s concession that the applicant suffers from psychoactive substance abuse, with its onset being after that period of service. Further, the respondent conceded that if psychoactive substance abuse was determined to be war-caused, then it would accept that the alcoholic liver damage was a consequence of that condition. The Tribunal accepts Dr Dinnen’s diagnosis of the relevant condition as alcohol abuse, as opposed to alcohol dependence.
37. As to step 2, the Tribunal notes that at the time of the Commission’s decision, the relevant SoP concerning psychoactive substance abuse was Instrument No. 76 of 1998, the preamble to which stated that it was concerned with alcohol dependence or alcohol abuse. Clause 1 of that SoP, states that it revokes SoP 5 of 1994 concerning psychoactive substance abuse or dependence. Under SoP 76 of 1998, one of the factors set out therein must be related to the veteran's operational service for the condition to be regarded as war‑caused.
38. As to step 3, it was submitted that the hypothesis is consistent with factor 5(b) of the template in the SoP which reads:
5. The factors that must as a minimum exist before it can be said that reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
Clause 8 of the SoP sets out the following definition:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
39. The Tribunal must form an opinion as to the reasonableness of the hypothesis. The Tribunal is mindful of the approach it should follow, as outlined in East v Repatriation Commission (1987) 16 FCR 517 (at 533) “A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.” Mr Dawson submitted that there is material that supports the hypothesis. In relation to identifying a stressor, he referred to Mr Thorpe’s experience unloading ammunition in the magazine, being confined for 18 hours in a locked space below the waterline. The leading hand had warned him that they were doing most dangerous work. Mr Thorpe’s evidence was that the scare charges were dropped without warning, and they vibrated the ship and scared him. Mr Dawson noted from Captain Dalton’s statement (Exhibit A5) that scare charges could be as loud as 110db and quite frightening if they were dropped without warning. Reference was made to the applicant’s reactions to having to work through such a stressor. Against the background of Mr Thorpe’s stern upbringing, his youth and inexperience, Dr Dinnen could understand the applicant’s reaction, which Dr Dinnen said was relayed to him in a way that could be described as very terrifying and traumatic. Thus Dr Dinnen was able to relate the applicant’s reactions to the leading hand’s warning and the reprimand given when the applicant dropped a box of ammunition. Dr Dinnen said that if the applicant had given him a truthful account of his feelings at the time, then the experience was certainly a severe stressor. Mr Dawson emphasised the applicant’s youth, only 17 at the time, and the effect that stories of the older sailors could have on the younger sailors. He submitted that the Tribunal should take into account the applicant’s subjective reaction to his experience in the magazine.
40. Ms Hook acknowledged that the only issue to be determined was whether Mr Thorpe experienced a severe stressor while unloading ammunition from the magazine. She submitted that there was both an objective and subjective element to experiencing a severe stressor and referred to the Tribunal’s decision in Re Budworth and Repatriation Commission [2000] AATA 127. In Ms Hook’s submission the objective existence of a severe stressor was missing. Ms Hook referred to Dr Walden’s opinion to that effect and the answer by Dr Dinnen in cross-examination that, objectively evaluated, the events that occurred in the magazine were not severe stressors. In summary, Ms Hook said that the events did not involve actual or threat of death or serious injury or threat to one’s personal integrity.
41. Mansfield J recently considered the meaning of the expression ‘experiencing a severe stressor’ in Stoddart v Repatriation Commission [2003] FCA 334 in the context of SoP 76 of 1998 as follows:
[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.
42. Dr Dinnen’s opinion was that the applicant’s experience of the events in the magazine “certainly subjectively qualify as a severe stressor” (Exhibit A1). Having regard to the applicant’s age, his being a relatively recent recruit and consequently inexperienced, and the Sydney’s climate of apprehension fed by the ‘war stories’ of the older sailors, the Tribunal considers him to have been more vulnerable than others who did similar work in magazines or had like experiences in Vung Tau harbour. Dr Dinnen had also identified the applicant’s predisposition to emotional disturbance by an abusive family of origin. Judged objectively from the perspective of a reasonable person with the applicant’s background, the Tribunal considers his experience in the magazine below the water line, that is his confinement for 18 hours under the direction of a dominating superior, handling live ammunition and most notably the impact of the scare charges, were capable of and did convey to him a risk of death or serious injury. Accordingly, the Tribunal finds that the hypothesis is not obviously fanciful or untenable and has been raised by the material before the Tribunal.
43. As to step 4, the question is whether the Tribunal is satisfied beyond reasonable doubt as to the inaccuracy of Mr Thorpe’s evidence. In a matter of this kind, the Tribunal does not make findings on the balance of probabilities. Mr Thorpe will succeed unless the Tribunal is satisfied beyond reasonable doubt, that it should not accept his evidence about experiencing events that involved actual or threat of death or serious injury, evoking intense fear or helplessness. The Tribunal is not satisfied beyond reasonable doubt that the facts necessary to sustain the hypothesis, including the applicant’s assertions that he was locked into the magazine and there worked an 18 hour shift, have been negatived beyond reasonable doubt. Therefore, the Tribunal finds that the fourth step is satisfied and, in accordance with s.9 of the Act, that the veteran’s disease of alcohol abuse, and his alcoholic liver damage, were war-caused.
44. The decision should be set aside and in substitution the Tribunal decides that Mr Thorpe’s alcohol abuse and alcoholic liver damage were war-caused with effect from 20 April 1998. The matter is remitted to the Commission for assessment.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr M.E.C. Thorpe, Member:
Signed: .......................................................................................
AssociateDate of Hearing 1 July 2002
Date of Decision 15 July 2003
Counsel for the applicant Mr N. DawsonRespondent’s representative Ms P. Hook, Dep’t of Veterans’ Affairs
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