Tunbridge and Repatriation Commission
[2008] AATA 370
•6 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 370
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500936
VETERANS' APPEALS DIVISION ) Re ROSS JEFFREY TUNBRIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date6 May 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E. A. Shanahan
Member
VETERANS’ AFFAIRS ‑ disability pension – operational service in Vietnam – claim for anxiety disorder, depression and alcohol abuse – severity of claimed stressors – identifiable traumatic event – multiple non-service related stressors – vulnerability – reliability of evidence – decision affirmed
Veterans’ Entitlement Act 1986
Statement of Principles
Instrument No 58 of 1998 concerning Depressive Disorder
Instrument No 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Instrument No 54 of 1999 concerning Post‑Traumatic Stress Disorder
Instrument No 1 of 2000 concerning Generalised Anxiety Disorder
Instrument No 101 of 2007 concerning Anxiety DisorderInstrument No 17 of 2007 concerning Depressive Disorder
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1998) 90 FCR 307
Delahunty v Repatriation Commission [2004] FCA 309
Meehan v Repatriation Commission [2003] FCA 1371
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McKenna (1999) 86 FCR 144
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
6 May 2008 Miss E.A. Shanahan, Member 1. Mr Tunbridge receives a disability pension at 20 per cent of the general rate for hearing impairment and tinnitus, a disability support pension from Centrelink and a Defence Force retirement benefit. On 19 March 2003 he applied to the Repatriation Commission for an increase in disability pension based on the claim that his anxiety disorder, depression and alcohol abuse were war-caused. Initially his claim was for post traumatic stress disorder (PTSD). This claim was rejected on 13 June 2003 by a delegate of the Repatriation Commission and that decision was affirmed by the Veterans’ Review Board (VRB) on 19 September 2005. Mr Tunbridge’s application for review of this decision by the Administrative Appeals Tribunal was received on 21 October 2005.
2. Mr Tunbridge was represented by Mr C. Moore of counsel instructed by Mr P. Liefman, solicitor and the Respondent by Ms Jean McCulloch an advocate with the Department of Veterans’ Affairs. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents). The parties tendered the following documents:
The Applicant:
·statement of the Applicant dated 20 June 2007 – Exhibit A1
·statement of Mrs Delma Tunbridge dated 1 October 2007 – Exhibit A2
·report of Dr J. Cooper dated 24 January 2007 – Exhibit A3
The Respondent:
·T-Documents – Exhibit R1
·West Gippsland Medical Clinic notes – Exhibit R2
·Writeway Research Report (Writeway) of 21 April 2007 – Exhibit R3
·a map of Vung Tau Harbour and Province – Exhibit R4
·Mr Tunbridge’s Defence Department psychological record pages 1 -15 –Exhibit R5
·the Report of Dr N. Strauss of 24 May 2007 – Exhibit R6
·the records of Allianz Australia Insurance Limited with a cover letter dated 27 November 2006 – Exhibit R7
·Mr Tunbridge’s Centrelink records Mr Tunbridge – Exhibit R8
·the Southern Rehabilitation medical notes – Exhibit R9
·the transcript of the VRB hearing of 19 September 2005 – Exhibit R10
·Mr Tunbridge’s medical records provided by Dr Q. Dinh – Exhibit R11
·Mr Tunbridge’s Personnel Naval file pages 1-9 – Exhibit R12
Mr Tunbridge, Mrs Tunbridge, Dr Cooper, Mr Hewitt and Dr Strauss gave evidence.
BACKGROUND TO THE APPLICATION
3. Mr Tunbridge enlisted in the Navy on 22 June 1971 at the age of 19. He enlisted for a period of 9 years. He declared his preference for training as a cook (Ex R12). Shortly after enlistment Mr Tunbridge underwent psychological assessment and was noted to be of a very nervous disposition (Ex R5, p15). The psychologist attributed the nervous disposition to Mr Tunbridge’s unhappy home background. Having completed basic training, Mr Tunbridge was posted to HMAS Sydney (the Sydney) on 10 September 1971 for common sea training (Ex R3). His evidence was that he worked eight hour shifts in the galley as well as participating in general training. The Sydney completed four visits to Vung Tau Harbour in late 1971 and early 1972, transporting Defence Personnel and equipment. These visits occurred when the Australian Defence Forces were withdrawing from Vietnam; the visit of 29 February 1972 being the ships second last voyage to Vietnam. The Sydney lay at anchor in the harbour on the following days and times:
Dates
Times
6 October 1971 to 7 October 1971
0700 to 0020
(17 hours 20 minutes)
6 November 1971 to 7 November 1971
0700 to 0001
(17 hours and 1 minute)
8 December 1971 to 9 December 1971
0645 to 0030
(17 hours and 45 minutes)
28 February 1972 to 28 February 1972
0700 to 2200
(15 hours) then spent the night outside the Harbour returning on
29 February 1972 to 29 February 1972
0900 to 1915 hours
(10 hours and 15 minutes)
4. Mr Tunbridge’s operational service relates to these visits but also includes the time of passage between Australia and Vietnam. The Sydney’s crew were provided with memoranda and operational orders outlining cargo handling procedures, ship safety and security and orders to divers and sentries. (Ex R3, p3). When in the harbour six sentries, two of whom where armed, were posted on the three decks immediately below the flight deck. When cargo operations where undertaken between 7.00pm and 12.00pm the ship was in darkness except for working lights on the flight deck. The Sydney anchored .9 nautical miles (1500 yards) from land and the nearest known enemy site was four to five kilometres from the ship at Cape Gau Rai. The Sydney’s Reports of Proceedings state that the ship was never attacked in any way and there were no reports of sniper fire (Ex R3). While in harbour the Sydney was loading and unloading as quickly as possible and the flight deck was very busy and noisy.
5. Mr Tunbridge’s claim is based on the general apprehension and fear attendant upon being in a war-zone and his experiences on sentry duty. One of the claimed severe psychosocial stressors was the hearing of a rifle shot during his performance of sentry duty at night on his first visit to Vung Tau Harbour (VRB transcript Ex R10). The explosions referred to throughout his evidence by Mr Tunbridge were clarified by the Tribunal as being the noise being made by scare charges dropped into the water around the Sydney. Mr Tunbridge has a very lengthy psychiatric history, commencing in 1973 and leading to his discharge from the Navy on 9 May 1978 as physically unfit for naval services. He required four admissions to hospital during his service, for anxiety, depression and panic attacks in response to conversionary reactions arising from relationship problems with his fiancé and then his wife. The panic attacks would also occur without a precipitating factor. In 1975, Dr Gill, a psychiatrist, suggested that Mr Tunbridge’s excessive anxiety/depression reaction to external stress could jeopardise his naval career (T‑Doc p91). Dr Gill documented the time of commencement of Mr Gill’s panic attacks as 1968. Mr Tunbridge was also diagnosed as having an immature personality (T-Doc p119). Since his discharge from the Navy Mr Tunbridge has undergone multiple psychiatric assessments.
6. Mr Tunbridge’s work history after his naval service is poor. He has experienced difficulties with authority’s figures and has been unable to cope with most of his jobs. He ceased all work in 1995 after he developed chronic back pain attributed to his work. There was no identifiable injury episode and his x-rays, CT scans and MRI show mild degenerative change (Ex R7). He has been diagnosed as having a chronic pain syndrome and secondary depression. For the chronic pain syndrome he takes analgesics including MS Contin (a morphine derivative) in the dose of 100 milligrams twice daily. He has undergone several rehabilitation courses with minimal benefit. More recently there have been two admissions to Heidelberg Austin Psychiatric Unit for alcohol and MS Contin abuse. Mr Tunbridge was in the middle of one such detoxification course at the time of the hearing.
7. Prior to his Navy enlistment Mr Tunbridge was a non-smoker and non-drinker. He commenced smoking and drinking in 1973 on the advice of a friend after he had suffered a panic attack (Ex R6, p7). By the mid 1970s Mr Tunbridge said he was smoking 50 cigarettes per day and drinking to excess. His alcohol intake appears to have varied over the years although he denies this. In his evidence he stated he was drinking to excess at the current time even though he was in the Austin undergoing a detoxification program. Mr Tunbridge has been convicted of drink driving and lost his licence for some time in the 1970s. During the same period he was banned from several clubs in Sydney (VRB transcript Ex R10, pp22 and 23). He said he was last involved in an alcohol fuelled fight in 2002 (Ex R10, p24).
8. Mr Tunbridge did not mention his Vietnam experiences to any of the psychiatrists he saw in relation to his back injury between 1993 and 1995. It was not until he read an article in 2003 regarding Vietnam veterans and their various psychiatric disorders that he connected his current psychiatric status to his naval service. Prior to that date he had accepted the naval psychiatrists’ opinions that his psychiatric disorder, whatever its diagnosis, was secondary to a personality disorder; or as he put it his own fault (Ex R10, p21).
9. Mr Tunbridge has very little recall of his Vietnam experiences other than his sentry duties which he insists occurred at night. He also insists that on each visit the Sydney remained overnight in Vung Tau Harbour. He has only recently, in the past two years, been able to tell his wife of the content of his dreams; these being explosions, shootings and the ship being blown up (transcript p12).
10. Mr Tunbridge had told the VRB that he spent two to three days in Vung Tau Harbour on each of the Sydney’s visits. Mr Tunbridge was in Darwin immediately after Cyclone Tracy devastated that city on Christmas Eve 1974.
11. Mr Tunbridge has always agreed that none of his perceived fears eventuated but he maintains he heard a shot or shots in the form of sniper fire during his first visit to Vung Tau Harbour (Ex R10, p16 transcript of 2007 p 10).
EVIDENCE BEFORE THE TRIBUNAL
Mr Ross Tunbridge
12. Mr Tunbridge’s evidence has been summarised in the Background to the application. In contrast to his evidence to the VRB Mr Tunbridge said he could not remember on which trip he heard the sound of rifle fire nor on how many trips it happened (transcript p 10). He said he was scared witless because he was worried the fire was being directed at him. He also believed he was more obvious to a sniper as, although the Sydney was in darkness, it was silhouetted by lights from an American warship in the harbour. After this episode he asked the Officer-in-Charge to be placed in a less illuminated area on any future sentry duties. Mr Tunbridge could not recall whether the Sydney had an escort ship but if it did he believed it was outside the harbour. He also stated that the explosion of scare charges had frightened me a bit because I wasn’t sure whether it was an actual attack or it was a precautionary charge. Under cross-examination Mr Tunbridge said he couldn’t recall which ship he was on at the time he heard the gunshots (transcripts p 20). He could not recall his several hospital admissions in the 1970s while in the Navy or that he took an overdose in a suicide attempt.
13. Mr Tunbridge regards his childhood as being a happy one, although the family shifted frequently between Western Australia, Northern Territory and Northern Queensland following job opportunities. His mother was married three times and Mr Tunbridge had believed that his first stepfather was in fact his biological father. He only became acquainted with the true status when his stepfather died. He denied, contrary to some psychiatric reports, that he was depressed after the death of his first stepfather. He said he left school at approximately 14 and then obtained an apprenticeship and lived in single quarters at his place at work as his mother had left the Northern Territory. He was sacked from this position when he took the boss’ car to visit his girlfriend who had telephoned him urgently and crashed it. (transcript p 16).
14. Mr Tunbridge has been married twice. His first marriage was from 1974 until 1980 and problems in that marriage were the source of several of his psychiatric admissions while in the Navy. He met his current wife in 1986 and they married in 1990. He has no biological children but Mrs Tunbridge has four. He acknowledged that there has been a problem with his stepdaughter-in-law over the last 10 to 15 years. She and her husband were drug addicts. Rather than have their children put into foster care, Mr and Mrs Tunbridge cared for the two children from December 1994 (when the children were aged one and a half and two and a half) until July 2004 and again from December 2004 to July 2005. Mr Tunbridge believes that on one occasion their mother stole his supply of MS Contin. The children are now in the care of their uncle and Mr and Mrs Tunbridge have monthly access plus care of the children for one week of the school holidays. He described having the children under his care as it put a hell of a mess on us (transcript p 68).
15. Mr Tunbridge had no memory of the psychiatrists he has seen over the past 20 years, including those he saw in Perth after his back injury.
16. Mr Tunbridge agreed that he started drinking in 1973 and built up his alcohol intake steadily until, in the early 1980s, he was drinking 48 cans of beer and half a bottle of spirits per day. He said he currently drinks 24 cans of beer, one to two bottles of spirits and half a bottle of Port per week.
17. Mr Tunbridge confirmed his statement (Ex A1) as being true in all its detail.
Mrs Delma Tunbridge
18. Mrs Tunbridge had provided a statement dated 1 October 2007 (Ex A2) wherein she confirmed that she had met Mr Tunbridge in 1986 and commenced cohabitating in 1987. They married in 1990. She had been astonished at how much he drank. She also noted he had terrible nightmares and thrashed about in his sleep, sweating, yelling out and crying. Mr Tunbridge had told her of the warnings they received prior to going to Vietnam and the fears he had when patrolling the ship at night. She recounted that he told her he had heard riffle fire which made him duck for safety. The statement concludes with the comment that her husband has had trouble sleeping as he spent many night hours at the helm.
19. In her evidence before the Tribunal Mrs Tunbridge confirmed that Mr Tunbridge drank 24 cans of beer and one or two bottles of spirits per week. In the early part of their marriage he had totally isolated himself from social events so she started going out by herself. When she took this action Mr Tunbridge’s drinking started to reduce slightly (transcript p 73). Mr Tunbridge had not discussed his Vietnam experience with her until about 2004 at which time he told her how frightened he was on his trips to Vietnam, particularly when he heard gunshots, screaming and charges exploding in the water. She confirmed Mr Tunbridge still suffered from panic attacks, although they were less frequent. The last had occurred three to four weeks previously. More recently Mr Tunbridge had told her the content of his nightmares and explained the episodes when he had hit her in bed as him fighting people off. Mrs Tunbridge had no idea how long Mr Tunbridge had actually spent in Vietnam.
Mr John Hewett
20. Mr Hewett is employed by Writeway Research Services (Writeway) to conduct historical research. Mr Hewett is a retired naval Captain, having spent 39 years in the Royal Australian Navy. He served on the Sydney and HMAS Melbourne (the Melbourne), although he was not on the Sydney at the same time as the veteran. He had provided historical research relating to Mr Tunbridge’s service in HMAS Sydney in Vietnam (Ex R3). Most of Mr Hewett’s evidence has been covered under Background to the Application. Mr Hewett confirmed that the various logs and Reports of Proceedings record that the Sydney never stayed overnight in Vung Tau Harbour but frequently left around midnight. He said unloading activities would occupy all the daylight hours and following nightfall the Sydney had embarked troops and equipment to bring back to Australia. During these activities the flight deck of the Sydney would be lit. The activities were noisy with many personnel and cranes working on the flight deck and large barges moving between the shore and the ship.
21. Mr Hewett confirmed the anchorage sites of the Sydney and their distance from land and that the Sydney’s crew were provided with written and oral details of the precautions to be taken prior to arrival in the harbour. There is no record of the Sydney ever having been under sniper fire or air attacks. Mr Hewett said the enemy in southern Vietnam did not possess aircraft. The sentry duty consisted of six sailors, usually Leading Seaman or Able Seaman, on each of the three decks manned, with two of these sentries being armed. Most of the decks were fairly well enclosed except for one or two spaces underneath the sponson. Mr Hewett did not think that a fully lit American ship would have any significance in terms of silhouetting the Sydney as the Sydney’s flight deck was illuminated.
22. With respect to hearing rifle shots from land, Mr Hewett was of the opinion that it might be possible in a very quiet environment. The ship was .9 of a nautical mile from shore and the nearest known enemy site was four to five kilometres distant. Mr Hewett also explained the use of scare charges. Scare charges were designed to explode at depths of six or seven metres under the sea and frighten away any divers seeking to sabotage the ship. At the distance at which these were normally exploded, approximately 500 metres from the ship when dropped from a cutter, or 20 to 30 metres when thrown overboard, a dull thump may have been heard aboard the ship. The Tribunal asked Mr Hewett what sort of a surface disruption occurred after the explosion of a scare charge and he described it as a ripple and a roiling of the surface (transcript p57). The Tribunal notes that the term roiling relates to the creation of turbidity in water.
23. Under cross-examination by Mr Moore, Mr Hewett agreed that naval personnel were repeatedly acquainted with the importance of remaining vigilant. While there was never an actual attack on the Sydney, there was a risk. Mr Hewett was not able to absolutely rule out the possibility of sniper fire but he put it as a possibility, not a probability. Nor could Mr Hewett say that Mr Tunbridge had not performed sentry duty. He said that it would not be possible to mistake a scare charge exploded by the Sydney crew as a deterrent for an explosive device aimed at the ship.
Dr John Cooper
24. Dr Cooper, psychiatrist, saw Mr Tunbridge on two occasions, on 28 August 2006 and on 19 October 2006, in order to provide a medico-legal report. He obtained a history of the onset of nervous attacks in 1973, shortly after Mr Tunbridge’s service in Vietnam. Since that time Mr Tunbridge said he had suffered from anxiety of fluctuating severity, depression and panic attacks approximately twice a month. He described sleeping difficulties and both nightmares and daymares. Mr Tunbridge described an inability to handle pressure and stress and coped poorly with responsibility.
25. Mr Tunbridge described his nightmares as experiencing explosions, warfare, sharks and being shot at. He was however clear that none of these events had happened. Additionally he had a very patchy memory of his operational service but did recall it was dark when he was in Vung Tau harbour. He did remember patrolling decks of the ship at night and hearing shots fired.
26. Mr Tunbridge told Dr Cooper that he had read an article describing some of the activities that had gone on around the ship including the dropping of scare charges. Having read the article he understood the content of his dreams. Until that time Mr Tunbridge had tried to bury his experiences in the navy by drinking alcohol to excess and working seven days a week. Mr Tunbridge described the presence of the United States naval vessel behind the Sydney illuminating the Sydney in silhouette making it an easier target. At the time of the consultation, Dr Cooper estimated that Mr Tunbridge was drinking 8 to 12 standard drinks per day. This was described as a significant improvement over earlier years.
27. Dr Cooper obtained a limited history of Mr Tunbridge’s childhood, said to be happy. He told Dr Cooper he left school at 13 in order to work and was severely distressed by the death of his first stepfather, saying it was if his brain exploded.
28. Dr Cooper described Mr Tunbridge’s mood as normal with no evidence of prominent depressive themes in his thinking or any suicidal ideation.
29. Dr Cooper made a diagnosis of a chronic syndrome of mixed depression and anxiety and an alcohol abuse disorder. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (DSM IV) the appropriate nomenclature for Mr Tunbridge’s conditions was dysthymic disorder and a chronic anxiety disorder not otherwise specified but with features of panic attacks and generalised anxiety. Dr Cooper found that Mr Tunbridge’s symptoms met the DSM IV symptoms for these conditions and the Statement of Principles (SoP) criteria. Dr Cooper described Mr Tunbridge as being more vulnerable to mental health problems as a result of his childhood experiences.
30. The stressors Mr Tunbridge described were, in Dr Cooper’s opinion, at the milder end of the severity spectrum and it was likely that other factors had contributed to his mental health problems, including his immature personality and difficulties in relationships. Events such as exposure to Cyclone Tracy, his back injury and the ongoing effects of alcohol abuse have compounded and exacerbated his problems. However, his Vietnam war experiences were a significant part of a series of difficult events that had a deleterious affect on Mr Tunbridge’s mental health.
31. Dr Cooper confirmed his report as true and correct. He had no reason to doubt the truthfulness of the history given by Mr Tunbridge.
32. Under cross-examination by Ms McCulloch, it became apparent that Dr Cooper was not fully aware of all of Mr Tunbridge’s childhood and teenage experiences, that he had several step-siblings or that he had taken his boss’s car to visit his girlfriend and crashed the car when he was 16. Dr Cooper agreed that in the earlier psychiatric reports Mr Tunbridge never referred to his Vietnam service and in fact did not mention this until 2003, after he had read the article describing the experiences of other naval personnel in Vietnam. Dr Cooper disagreed with the opinions of Dr Strauss and Dr Thacore and while acknowledging that Mr Tunbridge had only spoken of his Vietnam experiences since 2003 he saw his role as to assess the veteran’s mental state at the time of consultation and then determine if a causal relationship could exist.
DR NIGEL STRAUSS
33. Dr Strauss saw the veteran on 16 May 2007 at the request of the Department of Veterans’ Affairs and provided a report on the same date (Ex R6). Dr Strauss obtained a very detailed history of Mr Tunbridge’s childhood and teenage years. Dr Strauss wrote:
Mr Tunbridge told me that he was born in Perth but he left there as an infant and he said he lived in various parts of northern Australia with his mother and stepfather.
When I asked him why the family moved he said his stepfather had different jobs and the family had to move with him.
As a consequence he said he went to many schools and at times he was “beaten up” and he said the reason for this was that “new kids always got beaten up”.
He said he first went to school in Darwin and completed his schooling at Port Headland.
He also did some home schooling and was educated through School of the Air.
He said his natural parents separated when he was a baby and from the age of about 2 to the age of 14 his mother lived with his stepfather.
He said that his stepfather was not a very good husband and his mother and stepfather were not very close. He said that his own mother got sick of putting up with his stepfather and he said that his stepfather was a heavy drinker and he was violent toward his mother but rarely toward Mr Tunbridge. He admitted that it was not a happy home particularly when his stepfather was drunk.
…
He said that at the age of 16 he in fact made contact with his natural father but this was an unsuccessful meeting. He said that his father told him that he was not his son and yet Mr Tunbridge said that he noticed that his father had a picture of him. Nevertheless he said his father did not want to see him again and he said that he is not sure if and when his natural father died.
He said that when his natural parents separated his father took his two older sisters with him and he said that one of them did not want to know him and he did see the other for a brief period but eventually stoped contact with her.
He is unsure whether there is any family history of psychiatric illness.
He said that his mother had a son with his stepfather but he has lost contact with his half brother.
He said that his stepfather died not long after his mother and stepfather separated but he was unable to get to his stepfather’s funeral and he said he was upset about this for a while.
He said that he had a reasonable relationship with his own mother until he found out about his stepfather not being his natural father at the age of about 14. He said after that their relationship deteriorated because he realised that his mother had often been untruthful. For example, she apparently told him that he had many relatives but in fact they did not exist. He said his mother was not violent but she was a drinker and she only meted out physical punishment when she was not drunk. However Mr Tunbridge insisted that he got tired of his mother’s lies and said that she left the family when he was 15 because she met another man. She took his younger half brother with her and he said that he moved into the single mans quarters at his place of work at that time.
He said that he left school at the age of 14 and he obtained an apprenticeship in Port Headland as a motor mechanic.
He said he made contact later with his mother in Sydney and he lived with her off and on until he joined the Navy but his relationship was not close he said. He eventually lost contact with his mother and he is not sure of what happened to her.
He said he did not finish the apprenticeship. He said he was in a relationship as a teenager and he said that his girlfriend insisted that he visit her on a particular occasion when she was upset and so inappropriately he took a company car and drove it at the age of 15 and had an accident. When the boss found out he said he was sacked.
He then moved to Perth where he worked in a sheet metal factory and then he followed his mother to Sydney and worked in the Railways there for a while but there were trips back to the Northern Territory where he did other work. He said that one job ended prematurely after he had an argument with the foreman. He had a job driving heavy machinery as well.
34. Mr Tunbridge also described several relationships that caused him distress. At the age of 21 he became involved in a relationship with a married woman. She was separated from her husband and had several children. This relationship lasted several months. Mr Tunbridge married in 1974 and this marriage broke up in 1980. As a consequence, he lost his home and was left with significant financial problems. During this six year period he said he was working long hours and drinking heavily.
35. A further relationship lasted two years (1981 to 1983). Dr Strauss records that Mr Tunbridge fathered a daughter from this relationship. (Tribunal note: Mr Tunbridge indicated in his evidence that the woman concerned was already pregnant when they met). Mr Tunbridge has not had anything to do with this child. Mr Tunbridge met his wife Delma in 1986 and told Dr Strauss they married in 1988.
36. Mr Tunbridge’s work history was recorded in detail – he had many short term jobs, the termination of which appeared to relate to his continued heavy drinking. In 1995 Mr Tunbridge injured his back at work and has not worked since. Dr Strauss noted that Mr Tunbridge takes a good deal of analgesics, Valium up to 30 milligrams per day and Lexapro for depression. When seen by Dr Strauss, Mr Tunbridge had ceased all psychiatric and psychological treatment and counselling. Mr Tunbridge was working as a volunteer with Vision Australia, driving a bus and cleaning their basket room. Mr Tunbridge had joined the Vietnam Veterans’ Association and the RSL three years previously and had made a few friends. He however preferred to drink at home by himself.
37. The stressors described by Mr Tunbridge to Dr Strauss were as already reported. Mr Tunbridge also told Dr Strauss that while he was at cooking school at HMAS Cerberus in 1972 he had a disagreement with the Petty Officer in charge and complained to the authorities about the Petty Officer’s behaviour. The officer was moved. Mr Tunbridge said he was subsequently beaten up on several occasions by friends of the Petty Officer.
38. Mr Tunbridge’s first panic attack was said to occur in late 1972 when he was cooking at HMAS Harman (a land base in Canberra). On the advice of a colleague he commenced drinking alcohol and smoking cigarettes to calm him down. Mr Tunbridge was, when seen by Dr Strauss, drinking 24 cans of beer, at least one bottle of spirits and two bottles of port per week.
39. Mr Tunbridge gave a history of going to Darwin after Cyclone Tracy as part of his Navy duties. He became anxious because of his wife’s illness and the destruction he saw in Darwin and was sent home.
40. Mr Tunbridge’s current symptoms were described as poor sleep, bad dreams relating to war, fighting, explosions and death, flashbacks involving hearing explosions and rifle fire, panic attacks, anger, worry and fleeting suicidal thoughts.
41. Dr Strauss had been provided with the reports of other psychiatrists which he summarised as:
·Dr Thacore, the treating psychiatrist, found the relationship of Mr Tunbridge psychiatric disorder to his naval service to be tenuous.
·Dr Jackson could not link Mr Tunbridge’s service to his current anxiety.
·Dr Kaplan in 1992 had diagnosed a dependant personality disorder with fragile mood, rendering Mr Tunbridge prone to depression and panic attacks even when subjected to minimal stress.
·Dr Degotardi in 1979 had diagnosed the severe personality disorder of a dependant type with neurotic episodes whenever his dependency was threatened.
42. Dr Strauss emphasised the fact that none of the pre-2003 reports referred to Mr Tunbridge’s Vietnam experience and all referred to difficulties he experienced in interpersonal relationships.
43. Dr Strauss diagnosed a generalised anxiety disorder, long-standing dependant personality disorder and alcohol abuse with fluctuating levels of depression. He regarding Mr Tunbridge’s prognosis as poor and doubted that further psychiatric treatment would be of benefit. In Dr Strauss’ opinion Mr Tunbridge’s psychiatric problems are not directly linked to his service experience although this man firmly believes that they are. Dr Strauss acknowledged that Mr Tunbridge would have been frightened while in Vietnam aboard the Sydney but was not convinced that his experiences constituted a severe psychosocial stressor. Given Mr Tunbridge’s volunteer work with Vision Australia, Dr Strauss concluded that Mr Tunbridge could work part-time for more than 20 hours per week.
44. In his evidence before the Tribunal, Dr Strauss explained the need for the detail regarding Mr Tunbridge’s, or anyone for that matter, childhood and teen years as the effect of early experiences determined subsequent behaviour. When asked if the diagnosis of a dependant personality disorder was subjective or objective, Dr Strauss pointed out that all psychiatric assessments were subjective. People with such a personality disorder only presented when things get really bad – usually interpersonal relations. Dr Strauss said that repeated themes were apparent in Mr Tunbridge’s behaviour and responses over the years and his dependant traits were demonstrated by alcohol, cigarette and opiate abuse, reliance on the medical profession, pensions and his extreme dependence on his wife. Dr Strauss placed the onset of Mr Tunbridge’s anxiety disorder as 1973.
45. Under cross-examination Dr Strauss expressed concern regarding the truthfulness of the history and evidence given by Mr Tunbridge in the past and in the present, particularly as his Vietnam memories were so vague. However, he did not challenge Mr Tunbridge’s veracity. Dr Strauss agreed with Mr Moore that alcohol impaired the memory and that Mr Tunbridge was a vulnerable individual. Thus, Dr Strauss could not absolutely exclude Mr Tunbridge’s Vietnam experiences as contributing to his psychiatric disorders although the absence of any complaints about his Vietnam experiences by Mr Tunbridge prior to 2003 was of great concern to Dr Strauss.
DOCUMENTARY EVIDENCE
Medical Evidence
46. Between 1973 and 1998 Mr Tunbridge was seen by eight psychiatrists and on no occasion described a severe psychosocial stressor experienced during his operational service in Vietnam. The history given to Dr Jackson (T8) in 2003 mentioned general apprehension of being in a war-zone. Mr Tunbridge specifically denied any traumatic events. In the course of Mr Tunbridge’s Workers’ Compensation claim he was assessed by two psychiatrists with respect to his chronic pain syndrome. He told one psychiatrist (Dr Mustac) that he had served in the Navy but did not provide any details with respect to Vietnam (Ex R7). Dr Mustac diagnosed malingering. Dr Kostov diagnosed a chronic pain syndrome with a depressive disorder controlled by anti-depressants (Ex R7). Several pain management specialists also diagnosed depression associated with the chronic back pain. There was little objective (radiological) evidence to explain Mr Tunbridge’s back pain hence the diagnoses of chronic pain syndrome which has a DSM classification (Ex R7). Plain x-rays of the lumbar spine had been reported as being normal except for the presence of Schmorl’s nodes, a congenital condition, and the MRI of the spine showed very mild degenerative changes.
47. Dr Cooper and Dr Strauss had assessed the veteran in late 2006 and May 2007 respectively and their evidence has been dealt with above. Dr Strauss summarised the earlier reports but had no knowledge of the Workers’ Compensation assessment in Perth between 1995 and 1998. While the Tribunal has examined all the reports in detail, Dr Strauss’ summary is accurate with respect to the final diagnosis reached by these experts. Mr Tunbridge did not mention his chronic pain syndrome, except in passing, to either Dr Strauss or Dr Cooper.
48. Mr Tunbridge was seen by Dr Seabridge in November 2004 at the request of Mr Tunbridge’s treating general practitioner and Mr Wayne Bell, Mr Tunbridge’s RSL Advocate. Dr Seabridge provided a very short report prior to the VRB hearing. Dr Seabridge stated that having interviewed Mr Tunbridge and considered all the documentation there was no evidence of any meaningful association existing between Mr Tunbridge’s operational service and the event which occurred during his naval service and his stated complaints.
THE WEST GIPPSLAND MEDICAL CENTRE
49. Mr Tunbridge attended this clinic from mid-1995 until 18 January 2006 on approximately a monthly basis. He attended essentially for repeat prescriptions of analgesics, narcotics and sleeping pills. The history summary provided in these notes refers to a history of alcohol problems, resolved PTSD, panic attacks and a back injury in 1995. A panic attack associated with chest pain was described on 3 July 2004. Reference is made to a referral to the PTSD clinic on 20 May 2004, an episode of renal colic on 26 April 2004 and a visit on 1 September 2004 when Mr Tunbridge was described as being in crisis and crying. The clinic referred Mr Tunbridge to the Pain Management Clinic at Caulfield Hospital where he was assessed in 2003. Following a detailed evaluation of Mr Tunbridge, Dr Teh, consultant in rehabilitation medicine, determined that the Pain Management Clinic had nothing to offer him in the way of new treatment. Over the period of Mr Tunbridge’s attendance at the West Gippsland Medical Clinic he had undergone numerous investigations, all of which are normal except for the presence of a small calcified granuloma in his left lung and elevated serum cholesterol and triglyceride levels.
Dr Q. Dinh, Clinical Notes (Ex R11)
50. It would appear that between 25 September 2002 and 10 July 2003 Mr Tunbridge attended Dr Dinh. The entries relate to repeat prescriptions for MS Contin, Valium and Tramal and visits took place every two to three weeks. On 13 March 2003 Dr Dinh records that Mr Tunbridge had been depressed and anxious since being in the Army. The only other reference to any psychiatric condition was Mr Tunbridge advising Dr Dinh that he did not drink water as he had a phobia regarding fish faeces in water. This phobia was also mentioned in the VRB transcript.
Southern Rehabilitation Clinic (Ex R9)
51. Mr Tunbridge was referred to this clinic in Fremantle for rehabilitation in relation to his back injury. All treatment failed. The failure was attributed to pre‑existing psychiatric factors and depression secondary to his chronic back pain. Suicidal ideation was noted. The specialists in this clinic commented that on physical grounds Mr Tunbridge’s back pain should have completely resolved. An MRI performed on 27 February 1996 showed very mild degenerative changes in the discs and the CT of the back showed no bony lesions other than Schmorl’s nodes.
Defence Forces Psychological Record (Ex R5)
52. The content of this report has been included in the Background to the application.
Naval Personnel File (Ex R12)
53. There are no relevant entries in this file that have not already been covered in the Writeway Report.
Centrelink Records regarding Mr Tunbridge (Ex R8)
54. Centrelink advised that Mr Tunbridge has been in receipt of a disability support pension since 23 October 2000. The only medical condition mentioned in the file is chronic pain syndrome and back pain.
Mr Tunbridge’s current income
55. In January 1999, by Consent Judgement, Mr Tunbridge was awarded $85,000 exclusive of all previous Workers’ Compensation payments plus legal costs of $10,000 in settlement of his claim against W.A. Flick & Co Pty Limited. He has been receiving a disability support pension since 23 October 2000, a Veterans’ Disability Pension (at 20 percent of the general rate) since 4 June 2003 and a Defence Forces Retirement Benefit from May 1978. In August of 2005 Mr Tunbridge obtained reports from Dr Stephen Hall from West Gippsland Medical Clinic in support of a claim for early access to his superannuation. (Ex R2, p 3) The outcome of this application is not known.
THE RELEVANT LEGISLATION
56. As Mr Tunbridge rendered operational service s120(1) and s120(3) of the Veterans’ Entitlement Act 1986 (the Act) are attracted. These state:
(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.
57. Section 120A (introduced on 1 June 1994) requires the Tribunal to apply any relevant SoPs. The parties appear to have agreed that the relevant SoPs are Instrument No 1 of 2000, concerning generalised anxiety disorder, Instrument No 58 of 1998, concerning depression and Instrument No 76 of 1998, concerning alcohol abuse. While new SoPs regarding anxiety disorder and depression have been introduced in 2007 the applicant has exercised his accrued right to have the determination made under the earlier SoPs in accordance with the decision in Repatriation Commission v Keeley (2000) 98 FCR 108.
58. Mr Tunbridge relied on a Factor 5(a)(ii) in Instrument No 1 of 2000 concerning generalised anxiety disorder. Factor 5(a)(ii) states:
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
59. Within the SoP concerning depressive disorder, Instrument No 58 of 1998, Mr Tunbridge relied on Factor 5(b) which is the same for generalised anxiety disorder.
60. In respect of alcohol abuse, Mr Tunbridge relied on Factor 5(a) in Instrument No 76 of 1998, which states:
suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or …
In the alternative, he relied on Factor 5(b), which states:
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse or …
61. The SoP concerning generalised anxiety disorder and a depressive disorder define a psychosocial stressor in similar terms. The definition of a severe psychosocial stressor in the SoP concerning general anxiety disorder states:
“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;
62. Finally, the Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 relating to the reasonable hypothesis onus of proof. At 97 the Full Court said:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
SUBMISSIONS
The Applicant
63. Mr Moore submitted that a reasonable hypothesis had been raised: that Mr Tunbridge’s exposure to events in Vung Tau Harbour had been perceived by him to be life-threatening and gave rise to each of the claimed medical disabilities. And that Mr Tunbridge should be accepted as a witness of truth and consistency, despite not telling all of his story until March of 2003. When he did speak of his Vietnam experiences, the history given was consistent and supported by the evidence of Mrs Tunbridge.
64. Mr Moore contended that the diagnosis was chronic anxiety, alcohol abuse and depression and relied on the reports of Dr Cooper and Dr Strauss, although the later had made a diagnosis of an anxiety disorder with depression and alcohol abuse. Both Doctors Cooper and Strauss had based the onset of the conditions in early 1973.
65. Mr Moore addressed the four steps of Deledio submitting that Mr Tunbridge met the first three requirements of these steps in the positive and that in the fourth step the Tribunal could not be satisfied beyond reasonable doubt that Mr Tunbridge’s incapacity did not arise from a war-caused injury.
66. Mr Moore considered Instrument No 101 of 2007 (concerning anxiety disorder) and Instrument No 17 of 2007 (regarding a depressive disorder) but exercised Mr Tunbridge’s right to have the matter determined on the basis of the earlier SoP. The severe psychosocial stressor relied upon was Mr Tunbridge hearing a rifle shot while on deck on the Sydney in Vung Tau Harbour. Mr Tunbridge had perceived this as a threat to his life and his reaction to this event was to be scared witless.
67. Mr Moore submitted that while there was no objective threat to Mr Tunbridge his perception of that threat was reasonable. He relied upon the decisions in Stoddart v Repatriation Commission (2003) 197 ALR 283, Delahunty v Repatriation Commission [2004] FCA 309 and Woodward v Repatriation Commission (2003) 200 ALR 332 and their consideration of the definition of a severe psychosocial stressor and its objective and subjective limbs in relation to PTSD. Similar arguments were raised with respect to Mr Tunbridge’s depressive disorder. Mr Tunbridge’s claim in relation to alcohol abuse (Factors 5(a) and 5(b) of Instrument No 76 of 1998) followed from the development of a psychiatric disorder secondary to experiencing a severe psychosocial stressor.
68. Mr Moore contended that the Tribunal ought not to be satisfied beyond reasonable doubt that Mr Tunbridge’s incapacity did not arise from a war-caused injury. Dr Cooper had provided an explanation as to why Mr Tunbridge had not mentioned his Vietnam experiences until 31 years after their claimed occurrence, stating that such delays were common in Vietnam veterans. Dr Strauss had been unable to rule out Mr Tunbridge’s Vietnam experiences being causally related to the development of his psychiatric disorders, particularly as Mr Tunbridge was a very vulnerable individual.
The Respondent
69. Ms McCulloch did not dispute that Mr Tunbridge suffered from several psychiatric disorders. However, she maintained that these were not war‑caused within the meaning of the Act. She relied primarily on the evidence before the Tribunal which indicated that Mr Tunbridge spent a very limited time in Vung Tau Harbour and never stayed overnight. He had no memory of events occurring during the daytime, only those in the dark. The four trips of the Sydney covered a total of five days in harbour and on four of these days the ship was at anchorage for, at the most, five to five and a half hours at night. Given Mr Tunbridge’s age and lowly naval rating it was unlikely that he did sentry duty and more unlikely that he was issued with a rifle, given that only two of six sentries on each deck carried arms and these were usually senior personnel. During the hours of darkness when in harbour the Sydney was busy loading men and equipment. The flight deck was lit, busy and noisy. Mr Tunbridge claimed the shot or shots he heard were from a rifle and had come from the land, the closest point being .9 of a nautical mile (approximately 1500 yards) from the Sydney. Mr Tunbridge did not see anyone shooting. Ms McCulloch contended that while he may have been frightened as a result of hearing the shot, he did not experience substantial distress. The historical evidence provided by Writeway confirmed that there was no sniper fire or aircraft attacks on the Sydney on any of its many visits to Vung Tau Harbour.
70. In contrast to Mr Tunbridge’s claim of traumatic events in Vung Tau Harbour, there is evidence of a substantial history of stressors throughout his life, commencing in his childhood and occurring after several breakdowns in his personal relations. He had been admitted to naval hospitals on four or five occasions. He was also extremely upset when he failed to obtain a posting he sought on HMAS Supply during his eligible service.
71. From 1973 to 1998 Mr Tunbridge had been seen by numerous psychiatrists, in the navy and in private practice, and they all had diagnosed a dependant personality disorder. It was not until 2003, having read an article on Vietnam experiences, that Mr Tunbridge reported the stressor relating to hearing rifle shots. Dr Jackson, who saw him at that time, determined the events were insufficient to equate to a severe psychosocial stressor. On the psychiatric evidence before the Tribunal, only Dr Cooper feels that the events described by Mr Tunbridge meet the requirements of DSM IV with respect to a severe psycho-social stressor.
72. During the medical and legal processing of Mr Tunbridge’s Workers’ Compensation claim in Perth between 1995 and 1998 or thereabouts, Mr Tunbridge was seen by at least two psychiatrists and on no occasion did he mention his Vietnam experiences. At that time he was diagnosed with a chronic pain syndrome and an associated depressive disorder.
73. Ms McCulloch submitted that Mr Tunbridge’s claim failed at step 3 of the Deledio process in that the hypothesis raised was not consistent with the template to be found in the SoP. There was no event equating to a severe psychosocial stressor.
THE TRIBUNAL’S REASONING
Summary of the Evidence
74. The medical evidence supports the diagnosis that Mr Tunbridge has a dependant personality disorder, with recurrent stressful events related to interpersonal relationships, resulting in a panic disorder and anxiety. Panic attacks were documented from 1973 and resulted in his discharge from the Navy in 1978. Dr Gill had recorded in 1973 that these panic attacks commenced when Mr Tunbridge was 16. Mr Tunbridge required several admissions to naval hospitals for the treatment of these disorders. He was seen by many psychiatrists during this period and their diagnoses were always the same. Throughout this early period, from 1973 to 1978, he did not raise any stressful incidents occurring during his Vietnam service. His alcohol and cigarette abuse commenced in late 1972 or early 1973, after he suffered a severe panic attack, and continued throughout his life. He subsequently developed further substance abuse, of narcotics and analgesics, when these were prescribed for his chronic pain syndrome in 1996 or thereabouts. While he states he had nightmares and daymares during this period, he did not connect them to his Vietnam service until he read an article in 2003 describing the experiences of Vietnam veterans.
75. In 2003 Dr Jackson found the claimed stressors did not meet the requirements of a severe psychosocial stressor. Dr Seabridge in 2004 could see no causal relationship between Mr Tunbridge’s psychiatric disorders and his Vietnam service. In 2006, Dr Cooper diagnosed a general anxiety disorder, a depressive disorder and alcohol abuse and attributed these to Mr Tunbridge’s Vietnam experiences, which in his opinion equated to severe psychosocial stressors. Dr Strauss made the same diagnosis superimposed on a dependant personality disorder and doubted a causal relationship between his service and symptoms; although he could not categorically exclude such a relationship.
76. Mr Tunbridge’s evidence before this Tribunal and the VRB reveal very little memory of the events in Vung Tau Harbour other than the hearing of a shot or shots fired from land 1500 yards away and being frightened by the sound of scare charges exploding. His description of the exploding of scare charges as a loud noise with disruption of the water does not correlate with the description given by Mr Hewett, who also served on the Sydney and has 39 years experience in the Navy. Mr Hewett described the explosion of a scare charge as a dull thud resulting in a ripple and roiling of the water. Mr Tunbridge could not remember any events that occurred, or even what he did, during daylight hours in Vung Tau Harbour. He had told his wife that his long-standing sleep disturbance and insomnia resulted from spending hours at the helm of the Sydney. Mr Tunbridge’s duties aboard the Sydney were those of an assistant in the galley, where he worked during the day on an eight‑hour shift, preparatory to his later training as a cook. It is possible, but extremely unlikely, that he was required to perform sentry duty given his junior position aboard the Sydney and his lack of experience.
77. Mr Tunbridge told the Tribunal he could not recall on which of the Sydney’s trips he heard the shot or shots fired. He told the VRB it occurred on his first visit to Vung Tau Harbour.
78. Mr and Mrs Tunbridge cared for two of Mrs Tunbridge’s grandchildren between December 1994 and July 2004 and again for seven months between December 2004 and July 2005. He described this as put a hell of a mess on us actually both of us I didn’t realise exactly how much pressure was putting on us until it was gone. Then it was a case of glad that’s over.
79. At the time of the hearing Mr Tunbridge was an inpatient at the Heidelberg Repatriation Hospital where he was undergoing group counselling, anger management and a detoxification regime aimed predominantly at his analgesic abuse of Tramadol. His analgesics and narcotic medication had been prescribed for the chronic pain syndrome.
80. Mrs Tunbridge’s evidence supported that of her husband, which is to be expected, given that her information derives from what he had told her. However, she had noted from the time she first met him that he drank to excess and she was able to confirm the quantities that he drank in 1987 and the subsequent reduction in this amount since he attended the Psychiatric Unit at the Heidelberg Repatriation Hospital. She described his restlessness in bed, his thrashing around waking her up and his panic attacks. She had only learned of the content of Mr Tunbridge’s dreams in the last three or so years.
81. The Tribunal finds that the current diagnoses, of general anxiety disorder, alcohol abuse and a depressive disorder, are the appropriate diagnoses and have been made to the Tribunal’s reasonable satisfaction (Cooke v Repatriation Commission (1998) 90 FCR 307). The date of onset of these conditions is not completely clear. The Tribunal is satisfied that Mr Tunbridge’s alcohol abuse commenced in late 1972 or early 1973. Panic attacks can be a symptom of general anxiety disorder and there is documented evidence that these commenced in 1968 when Mr Tunbridge was 16 years of age. His anxiety has fluctuated, increasing when subjected to minor external stress. His anxiety now appears to be constant and established. An established depressive disorder, as separate from intermittent symptoms of depression of a reactive nature or associated with an anxiety state, does not appear to have become firmly established until after the Mr Tunbridge’s onset of back pain which lead to a chronic pain syndrome (Ex R7). The additional diagnosis of a personality disorder (in some psychiatrists’ opinions a dependant personality disorder) is supported by all of the psychiatrists who saw Mr Tunbridge up to (and including) 2003 and by Dr Strauss in 2006 Dr Cooper is the only psychiatrist who has not made such a diagnosis. Dependent personality disorder is a DSM IV diagnosis.
82. Mr Tunbridge’s original claim that he was suffering from PTSD appears to have been abandoned as no evidence was presented to support such a diagnosis other than Dr Thacore’s original diagnosis in 2003. In his report of 5 January 2005 (T15 p134), Dr Thacore stated it appears to me that the relationship of his condition to his service is somewhat tenuous.
APPLICATION OF THE STEPS OF DELEDIO
83. The Tribunal, having examined all the material before it, finds that a hypothesis has been raised. The hypothesis has been stated as:
·That as result of his exposure to traumatic events while serving aboard the Sydney in Vung Tau Harbour in Vietnam, Mr Tunbridge developed an anxiety disorder, alcohol abuse and a depressive disorder with onset in 1973. The events described as severe psychosocial stressors by Mr Tunbridge were hearing a rifle shot or shots and hearing scare charges exploding while in Vung Tau harbour. While the Tribunal has already expressed its doubts regarding the date of clinical onset of the depressive disorder, this finding of fact is not attracted at this stage.
Step 1 of Deledio is satisfied.
84. Statement of Principles exist for the claimed conditions as outlined earlier in paragraphs 53 – 57, satisfying step 2 of Deledio.
85. Step 3 of Deledio requires the Tribunal, having identified that there is a SoP in force, to determine whether the hypothesis raised is a reasonable one. To be reasonable the hypothesis must be consistent with the template provided by the SoP.
86. The Applicant has relied on Factor 5(a)(ii) of Instrument No 1 of 2000 concerning anxiety disorder. Factor 5(a)(ii) provides:
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
and a 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.
87. The Tribunal has accepted Mr Tunbridge’s evidence at face value without making any findings of fact. Panic attacks can be a symptom of an anxiety disorder (DSM IV) and have, on the medical history given by Mr Tunbridge to Dr Gill in 1974, been occurring since 1968 and thus pre-existed his naval service. However, Instrument 1 of 2000 only addresses panic attacks under the heading of anxiety due to a general medical condition and does not include panic attacks under the definition of generalised anxiety disorder or anxiety disorder not otherwise specified. It is not clear to the Tribunal why the Repatriation Medical Authority has limited the symptom of panic attacks to the definition of anxiety due to a general medical condition. Given this limitation, however, the onset of Mr Tunbridge’s panic attacks at the age of 16 are not relevant to the template of the SoP.
88. Turning to the definition of a severe psychosocial stressor the Tribunal finds that the hearing of a shot or shots during loading of the Sydney in Vung Tau Harbour does not meet the requirements of an identifiable occurrence that evokes feeling of substantial distress in an individual. Mr Tunbridge denied seeing a shot and denied being shot at or shooting at anyone himself. He stated he responded to the hearing of the shot by hitting the deck and being scared witless, actually, because I was a bit worried at me he was firing at. (transcript p 10) The phrase a bit worried does not seem to meet the requirement of substantial distress. Likewise, he described his feeling when scare charges went off as well they did frighten me a bit. (transcript p11)
89. The Applicant relied on Instrument No 58 of 1998 concerning depressive disorder and in particular Factor 5(b). Factor 5(b) is in the same terms as 5(a) for GAD and the definition of a psychosocial stressor is the same as that for GAD. Thus the same reasoning applies to the claim for depressive disorder as for GAD. The hypothesis is not reasonable as it does not fit the template provided by the SoP.
90. There is no disagreement that Mr Tunbridge suffers from alcohol abuse. He has stated in his evidence before the Tribunal that he commenced drinking in either late 1972 or 1973, on the advice of a naval colleague after he had had an anxiety attack (transcript p 13). The Tribunal assumes Mr Tunbridge was describing a panic attack, which he terms an anxiety attack.
91. The Applicant relied on Factor 5(a), or in the alternative Factor 5(b), of Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse. Factor 5(a) states:
suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or…
and Factor 5(b):
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or…
92. As Mr Tunbridge’s hypothesis did not meet the requirements for GAD or a depressive disorder it cannot be said that he was suffering from a war-caused psychiatric disorder at the time of clinical onset of alcohol abuse.
93. The definition of experiencing a severe stressor differs from that for GAD and a depressive disorder stating:
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. [emphasis added]
94. The Tribunal finds that the hearing of a shot and the hearing of exploding scare charges while in bed at night is not an event or events that involve actual or threat of death or serious injury. While the hearing of these noises frightened Mr Tunbridge and the hearing of scare charges exploding interfered with his sleep he did not state that he experienced intense fear, helplessness or horror. Thus the sub‑hypothesis regarding alcohol abuse does not fit the template enunciated in the SoP.
95. Counsel for Mr Tunbridge relied upon the Federal Court decisions in Stoddart, Woodward and Delahunty, all of which addressed the phrase experiencing a severe psychosocial stressor at length in the setting of a diagnosis of Post Traumatic Stress Disorder. In Stoddart, Mansfield J at paragraph 50 said:
[50] … The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word “threat” a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. … I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of “sound medical-scientific evidence” in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted.
Mansfield J identified both an objective and subjective component to the expression experiencing a severe stressor.
96. In Woodward, the Full Court considered that the reasoning of Mansfield J in Stoddard is persuasive and that it should be followed. However, they stated that:
[141] … In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
97. The Full Court in Woodward stressed:
[77] the “experience” had to be based on an “event”. It was also accepted that a figment of the imagination, such as might arise through “paranoid ideation” would not be sufficient to meet this requirement.
98. In Delahunty, Tamberlin J (paragraph 27) following the decision in Woodward noted that:
[27] … in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. …
He went on to say:
… This indicates that the definition must be approached in a manner which is not unduly restrictive.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.
99. In White, having considered both Stoddart and Woodward, Spender J. said at 28:
The reference to an “identifiable occurrence is objective”….In my opinion ,the ordinary language of the definition makes it clear that the examples given are of “identifiable occurences” contemplated, not of “substantial distress”. The examples are of “occurences” not emotions.
And at 32 he said:
Such a submission, that any occurrence no matter how trivial or innocuous it is, can be a “severe psycho-social stressor”, means that the examples given in the definition of “severe psycho-social stressor” would be not only irrelevant and devoid of utility, but positively misleading.
This approach is supported by the issuing of new Statements of Principle by the Repatriation Medical Authority in 2007 and 2008 concerning Anxiety Disorder, Depression and Post-Traumatic Stress Disorder, wherein the definitions of Category 1A and 1B psycho-social stressors is prescriptive and requires the Veteran to actually experience a life-threatening event; be actually threatened; be the subject of a kidnap, torture etc; or in the case of a 1B stressor, be an eye‑witness to such events.
100. While taking into account the abovementioned authorities, the Tribunal is not satisfied that hearing a rifle shot or shots and hearing the explosion of a scare charge is an objectively severe traumatic event or psycho-social stressor as contemplated by the SoP. Mr Tunbridge’s subjective response was described as being frightened witless and hitting the deck (when the shot or shots were fired) and being frightened and unable to sleep because of the noise generated by the scare charge. The Tribunal finds that the hypothesis fails to fit within the template and is therefore unreasonable. Mr Tunbridge’s claim fails at Step 3.
101. Had the Tribunal found otherwise and proceeded to Step 4 of Deledio and the finding of facts, the Tribunal would have been satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s120(1) of the Act).
102. The Tribunal accepts the beneficial nature of the Act, that there is no onus of proof on either party and that the passage of time, associated with deterioration in memory, impacts on the veteran’s evidence. Similarly, a long history of alcohol abuse may have impacted on his memory.
103. The major points that would have led the Tribunal to reject Mr Tunbridge’s claim at Step 4 of the Deledio blueprint were:
(a)Mr Tunbridge’s denial of an unhappy or unsettled childhood despite evidence to the contrary (T8,page 53; Exhibit’s R6 and R5 and Exhibit A3)
(b)Mr Tunbridge did not make any mention of the specific stressors relied upon until after he read an article in 2003, which out-lined the experiences of veterans in Vietnamese waters.
(c)Mr Tunbridge’s failure to disclose or to do so in any detail, his back injury, chronic pain syndrome and consequent depression to any psychiatrist including Dr Cooper in 2006 and Dr Strauss in 2007.
(d)Mr Tunbridge was unable to recall the content of his nightmares until 2005 (Mrs Tunbridge’s evidence).
(e)The Sydney was never in Vung Tau Harbour overnight. The longest stays during Mr Tunbridge’s time of operational service were to midnight and 12.30 am and in the hours of darkness the Sydney was loading troops and equipment on a well-lit and noisy upper flight deck.
(f)Hearing a shot or shots fired from a distance of 0.9 nautical miles or greater in such a setting would be a far too remote possibility.
(g)Contrary to the history given to several psychiatrists, Mr Tunbridge did not spend 2 to 4 days in Vung Tau harbour on each visit, the maximum being less than 2 days, with the intervening night spent at anchor in the South China Sea.
(h)The Sydney was never attacked or fired upon.
(i)Mr Tunbridge attributed his insomnia to having spent many hours at the helm of the Sydney (Ex A2) despite his official role as a galley assistant.
(j)In his application to Centrelink for a disability support pension dated 23 October 2000, there is no mention of PTSD, GAD or chronic depression. The only disclosed medical conditions were back pain and a chronic pain syndrome.
(k)Mr Tunbridge’s recall of events is unreliable.
104. In light of the contemporaneous psychological report of August 1971 and the psychiatric evidence between 1973 and 1978, combined with the treating psychiatrist’s revised opinion of 2004 (T15, p 134) that any relationship between Mr Tunbridge’s psychiatric disorders and his operational service was tenuous; the 31 year absence of any reference to traumatic events experienced in Vietnam waters and the diagnosis of chronic depression secondary to a chronic pain syndrome in 1996-97 (Ex R7), the Tribunal is satisfied beyond reasonable doubt that Mr Tunbridge’s disorders, including alcohol abuse, are not war-caused.
105. The raised hypothesis fails at Steps three and four of Delidio.
DECISION
106. The Tribunal affirms the decision under review.
I certify that the one hundred and six [106] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 30 October 2007 and 12 December 2007
Date of decision: 6 May 2008Counsel for applicant: Mr Gary Moore
Solicitor for applicant: Mr Peter J. Liefman
Solicitor for respondent: Ms Jean McCulloch, Department of Veterans’ Affairs
0
13
0