Turnbull and Repatriation Commission
[2004] AATA 614
•18 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/585
VETERANS' APPEALS DIVISION ) Re DENNIS JOHN TURNBULL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs J.R. Dwyer, Senior Member
Mr C. Ermert, Member
Associate Professor J.H. Maynard, MemberDate18 June 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mr Turnbull’s generalised anxiety disorder is a “war-caused disease” under s 9 of the Veterans’ Entitlements Act 1986, with effect from 14 May 1997.
..............................................
Senior Member
VETERANS’ APPEALS – claim to have generalised anxiety disorder accepted as war-caused under s 9 of the Veterans’ Entitlements Act 1986 – operational service – hypothesis that condition suffered after veteran witnessed plane crash and incident on guard duty – minority reasons – evidence pointing to veteran experiencing a severe psychosocial stressor within the two years immediately before clinical onset of generalised anxiety disorder – reasonable hypothesis raised – Tribunal not satisfied that condition not war-caused – generalised anxiety disorder a war-caused disease – decision under review set aside.
Majority reasons – no evidence pointing to veteran experiencing a severe psychosocial stressor – reference to earlier relevant SoP – evidence pointing to veteran experiencing a stressful event within the two years immediately before clinical onset of generalised anxiety disorder – reasonable hypothesis raised – Tribunal not satisfied that condition not war-caused – generalised anxiety disorder a war-caused disease – decision under review set aside.
Veterans’ Entitlements Act 1986, ss 9, 120(1), 120(3), 175.
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stoddart (2003) FCAFC 300
Stoddart v Repatriation Commission (2003) FCA 334
Lees v Repatriation Commission (2002) 36 AAR 484
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Gosewinckel (1999) 59 ALD 690REASONS FOR DECISION
18 June 2004 Mrs J.R. Dwyer, Senior Member INTRODUCTION
1. This is an application under s 175 of the Veterans’ Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission (“the Commission”) made on 24 September 1998 and affirmed by the Veterans Review Board (“the Board”) on 24 April 2002. The Commission rejected Mr Turnbull’s claim to have generalised anxiety disorder (“GAD”) accepted as a “war-caused disease” under s 9 of the Act. It is not in dispute that Mr Turnbull suffers from GAD. The issue to be determined is whether his GAD is war-caused. It is Mr Turnbull’s claim that it dates back to a period from 28 January 1965 to 30 July 1965 when he rendered operational service in Ubon (Thailand). It is necessary for the Tribunal, in deciding this matter, to refer to the relevant Statement of Principles (“SoP”) for GAD.
2. Mr Chancellor of Counsel appeared for Mr Turnbull. Mr Herman, an advocate with the Department of Veterans’ Affairs, appeared for the respondent on the first day of hearing. When the hearing resumed, Mr Herman was overseas, and Mr Purcell of Counsel appeared for the respondent. Mr Turnbull and his wife gave evidence. Dr Cole, a psychiatrist, gave evidence by telephone on behalf of Mr Turnbull. Evidence for the respondent was given by Air Vice Marshal Rogers, who served at Ubon at the same time as Mr Turnbull, and by Dr Byrne, a psychologist. The Tribunal had before it the documents (the “T‑documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the voluminous exhibits tendered during the hearing.
3. After the conclusion of the hearing, the respondent forwarded to the Tribunal some photographs taken by Air Vice Marshal Rogers when he was at Ubon. With the consent of the applicant, those photographs have been taken into evidence and added to exhibit R22, which was a map of the base at Ubon, with annotations by Air Vice Marshal Rogers.
4. Mr Turnbull first lodged an informal claim to have conditions accepted as war‑caused under s 9 of the Act on 14 August 1997 (T4, p2). This was followed on 21 October 1997 by a formal claim for the acceptance of duodenal ulcer, severe weight loss and neck and shoulder pain as war or defence caused disabilities. In that form (T5, p7) Mr Turnbull explained that his severe weight loss was caused, or contributed to, by service because, “Whilst serving in Thailand I suffered a severe & sudden weight loss of approx 5 stone in 6 months, I have never regained my original weight & still suffer from side effects.”
5. In the decision of 24 September 1998 a delegate of the Commission determined that the diagnoses for the claimed conditions were GAD and depression, peptic ulcer disease and fractured vertebrae C6-C7, and refused the claims.
6. At the commencement of the hearing, Mr Chancellor advised the Tribunal that Mr Turnbull was pursuing only his claim in respect of GAD. His other claims were withdrawn.
RELEVANT LEGISLATIVE PROVISIONS
7.Section 9 of the Act, so far as is relevant, provides as follows:
War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
. . .
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
8. Mr Turnbull was born on 2 December 1944 and served in the Royal Australian Air Force (the “RAAF”) from 25 July 1963 to 24 July 1975. It is not in dispute that the period he served in Thailand from 28 January 1965 to 30 July 1965 was “operational service” as defined in s 6 of the Act, and thus that the relevant standard of proof is that found in s 120(1) and (3) of the Act. Those subsections provide:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
. . .
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
9. As Mr Turnbull’s claim was lodged after 1 June 1994, s 120A(3) of the Act is relevant. It provides, so far as is relevant:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran; ….
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
…
that upholds the hypothesis. …
10. In Repatriation Commission v Gorton (2001) 65 ALD 609, the Full Court of the Federal Court held that the relevant SoP is that which is in force at the time of review, but that if the veteran would not succeed on the current SoP, there is an accrued right to rely on the SoP which was in force at the time the claim was lodged or at the time of the decision of the Commission. In this matter, the current relevant SoP for GAD is Instrument No. 1 of 2000, which was in force at the time of this hearing. If the application does not succeed using the current SoP, it would be appropriate to refer to SoP No. 48 of 1994, as amended by No. 275 of 1995, which was in force when the claim was lodged and when the decision of the Commission was made.
METHOD OF APPLYING SECTIONS 120(1) AND 120(3) OF THE ACT
11. It is now well established that the procedure to be adopted by the Tribunal in applying ss 120(1) and 120(3) of the Act, where there is a relevant SoP, is explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206. 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). . . . .
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.
STEP (1) WHETHER THE MATERIAL RAISES A HYPOTHESIS
12. As explained by the Full Court, the Tribunal must consider all of the material which is before it and determine whether that material raises or points to a hypothesis connecting Mr Turnbull’s GAD with the circumstances of his service in Ubon. The Tribunal had before it a statement from Mr Turnbull (A1), in which he stated:
ANXIETY AND DEPRESSION
Prior to service in Ubon I suffered no anxiety or depression. I regarded myself as calm, sociable and easygoing. By the time of my return from Ubon I was introverted, anxious, irritable, depressed. I avoided social situations. I also commenced smoking and drinking within a month of return to Australia from Ubon and I took up these habits as a way of calming my nerves. I found that smoking and drinking did help to relax me. I had never previously smoked or drank alcohol. I quickly achieved a habit of 20 cigarettes per day and about 6 pots (10oz.) of beer per day. Sometimes I drank spirits. I also was aware of a significant weight loss on my return to Australia. Prior to my service in Ubon I weighed approximately 11 stone. Soon after my return to Australia my weight had gone down to about 6 stone.
. . .
Soon after my return to Australia from Ubon (and whilst I was based at Wagga) I saw Dr. N. Brandt for treatment. Dr. Brandt was a civilian doctor and to the best of my recollection he practiced in Gurwood Street, Wagga. I saw Dr. Brandt on 3 or 4 occasions and did so out of concern for my weight loss and the anxiety and depression which I was suffering. I had previously seen a RAAF doctor following my return to Australia from Ubon. The RAAF doctors did not treat my complaints with the attention that I thought necessary and I went to Dr. Brandt in desperation even though I was aware that strictly I should not be seeking treatment from a civilian doctor. I was dissatisfied with the treatment that I was receiving from the RAAF doctors. In fact my Superior Officer, Flight Sergeant Harry Brown, informally told me to simply see a civilian doctor because he was also concerned about my health.
Dr. Brandt diagnosed me as suffering anxiety and depression. He also took my weight and was taken aback by my weight loss. He asked me where I had been serving and when I told him about my experiences in Ubon he indicated that he believed that all of my complaints were related to service there. I saw Dr. Brandt from approximately mid to late August 1965. He put me on anti-depressant medication. He also provided me with some medication which was supposed to increase my appetite. I did gradually regain weight after being treated by Dr. Brandt although my weight has fluctuated ever since.
I served as a Clerk in Ubon. I was not combat trained and had only undergone routine weapons training. There were approximately 300 Australians on the base at Ubon. There were US Personnel on the other side of the air strip at Ubon.
We were told by authorities whilst we were in Ubon that insurgents were in the area. I never saw actual action but I nonetheless was anxious.
I did have to take part in Guard Duty which involved patrolling the perimeter of our base. We were issued with rifles for Guard Duty. The base was surrounded by jungle terrain. When guarding at night the lights around the perimeter shone in such a way as to make it difficult to observe the jungle area. I would patrol with 2 other men but we would be spread out so that in fact there would be a gap of about 100 yards between us. I was very anxious on the patrols and frequently heard (or imagined that I heard) noises. On one occasion I saw 2 people climbing the perimeter fence. It transpired that they were 2 Commissioned Officers who had broken curfew and were trying to enter the base undetected. This incident gave me an awful fright.
I performed Guard Duty 2 or 3 times per week for about 2 months. I never in fact saw action or had to fire my weapon. Nonetheless I was very frightened during these patrols. A patrol lasted approximately 4 hours and was always at night.
Additionally, there was a specific incident when I witnessed a Thai Trainer Plane crash. Apparently the Pilot was supposed to undertake a low level pass over the airfield. He attempted a roll-over in the course of doing so. He lost power and the plane plunged cockpit first into the airfield. The plane broke up and exploded and debris damaged other aircrafts. At the time I was inside the payroll office approximately 100 metres from the scene of the crash. I saw the crash through the window of my building. The roar of the engine of the plane immediately before the crash was different to normal and I believe that that is what had attracted my attention initially.
I was very shaken by the crash. I felt sick in the stomach. It was obvious to me that the Pilot had been killed. Fire trucks and crash crew attended the scene but I was not involved in this operation although I watched events unfold. I felt grief for the Pilot and I felt sickened by the incident. I suffered nightmares and flashbacks about the incident and also felt anxious and depressed.
13. Mr Turnbull, in his evidence, confirmed that his statement was correct. His evidence was consistent with what he had said in the statement. He described the stressors of performing guard duty and witnessing the plane crash.
14. Mr Turnbull explained that when he was posted to Ubon in 1965, at age 21, there was no general expectation of any war-like occurrences. They were told it was a normal posting. He was a paymaster and he was expecting to do only clerical work. He had enlisted into the accountant branch (R13, p210; trans, p84) and he said you can only go into the “mustering” in which you enlist. He said about half way through the period he was at Ubon, he was told that there was rebel activity in the area and that guard duties would have to be mounted (trans, p21). The WriteWay Report (R4, p2) confirms that in early 1965 there was a perception of threat at the base. It states:
There was always an assessed threat of terrorist attack on Ubon from the time of its establishment in May 1962 until its disbandment in August 1968. It was routine procedure for RAAF personnel of all musterings to stand guard duty, especially in times of heightened alert. There are no records of attacks on the base but there were a number of alerts. One intelligence assessment at about the period of Mr Turnbull’s service was that there were about 1200 insurgents in North-East Thailand. The United States began a large build up of forces with the arrival of over 60 F-4 Phantom aircraft at Ubon in early 1965 to carry out round the clock bombing missions into Laos and North Vietnam. This raised the threat of Ubon becoming a target for insurgents and was one of the reasons for the establishment of the Airfield Defence Guard mustering and its deployment to Ubon. [emphasis added]
15. Mr Turnbull said that prior to leaving for Ubon he did not drink or smoke. He described himself as “stable, outgoing, sociable and extroverted”. He said that he weighed 10 ½ to 11 stone. He said he had had only limited weapons training. During his 3 months of basic training he had been trained in the use of a self loading rifle only. He said that he had failed some of the weapons training. This is confirmed in the service records which show he failed the weapons training component of a course which ran from August to October 1963 (R13, p195).
16. Mr Turnbull said that it was only part way during the posting to Ubon that he and others were told they would have to do guard duty, with a self loading rifle and a full magazine. It was his recollection that he did guard duty for 2-3 months on a rotating shift basis which included an 8pm to midnight shift. He said the camp was illuminated at night but the area outside was scrub and jungle and it was in darkness. He said that when he was on guard duty he felt, “very nervous, very jumpy, nerve jumping inside, very anxious” (trans, p22). Mr Turnbull said he had a genuine fear for his safety when on guard duty.
17. Mr Turnbull described the incident when the officers came back after curfew. He said that although he or someone else in the guard patrol gave the command to stop, the men continued climbing the fence. They did not identify themselves until the command was given a second time. He said he did not know until then whether the base was under attack, or whether it was just people coming back late.
18. In cross examination, Mr Herman suggested that when the men were climbing the fence, they would have been clearly visible as the fence was well lit. He asked why Mr Turnbull was afraid, as it would have been easy to see that they were not Vietnamese. Mr Turnbull said that he was not scared once he saw the men, but he had heard them before they came into the light and that was when he was scared.
19. As to the plane crash, Mr Turnbull said he was in the clerical office at the time. He looked up because he heard something different about the sound of the engine. He said (trans, p24):
The first thing I heard, the engine in that was different. Looked out the window and saw the aircraft crash into the, cockpit first into the runway and explode. And I felt immediately quite sick in the stomach. Then saw the aftermath where the fire tenders were heading for the – that came to the crash site. I felt sorry for the pilots, pilot or pilots. There was wreckage over the runway. And I felt generally anxious for them, sorry, quite sick in the pit of the stomach.
Now how did you feel in the days and nights following that incident? --- I found it very hard to sleep. I could close my eyes and see the aircraft crash again. Quite a few nightmares about the aircraft crash.
20. Mr Herman, in cross examination, asked Mr Turnbull whether he recollected any other aircraft around the runway at the time of the Thai aircraft crash. He said he did not. Mr Herman pointed out that Air Commodore Owens, in the WriteWay report of 22 September 2002, had confirmed the crash, but had stated that there were two F-4’s landing at the time (R4, p4). Mr Turnbull said that he did not recall seeing the F-4’s.
21. Mr Turnbull said that, from memory, he thought the Thai aircraft crash was about half way through his time in Ubon, and that he improved after it, until he started guard duties. However, the WriteWay Report of 22 September 2002 states that the crash occurred on 25 June 1965 which was only about a month before Mr Turnbull left Ubon. Mr Turnbull said that he had given a history to Dr Byrne which was correct to the best of his recollection but it may not have been accurate in all details. He also said, and he had told his psychiatrist Dr Athey, that he believed American aircraft crashed at Ubon while he was there. Mr Herman pointed out that a WriteWay Report of 12 May 2003 (R5) stated that there were no American F4 crashes at Ubon while Mr Turnbull was there.
22. Mr Turnbull said that he started to drink alcohol very shortly before or after he left Ubon. He said that at that time his weight was not more than seven stone. He was weighed on his return to Australia, at Base Squadron Wagga. He said that he was told to attend at the Base Medical Centre because his superiors, including Flight Sergeant Harry Brown, were concerned that he had lost so much weight and wanted to find out what was causing it. He said his winter uniform was hanging off him. He recalled being sent to the tailoring section, but he did not remember whether his uniform was altered or whether he was issued with a replacement uniform.
23. There was an issue about Mr Turnbull’s description of his weight loss. The Tribunal asked if Flight Sergeant Harry Brown was able to be located, but he was not called by either party. The Tribunal also raised the question of whether Mr Turnbull may have had any photographs which could have resolved the issues. After the lunch adjournment, he produced some photographs (A3). They show that Mr Turnbull had clearly lost a significant amount of weight between the time just before his enlistment, when he had quite a round face, and his wedding which was on 6 August 1966 about a year after his return from Ubon. In the wedding photos he looks very much lighter.
24. In cross examination Mr Herman showed Mr Turnbull his RAAF uniform issue record (R20, p167). It shows one shirt and two pairs of summer trousers were issued to or returned by Mr Turnbull on 18 November 1965. As we only had a photocopy we could not tell whether the entry was in red for a return, or black for an issue, of uniform.
25. Mr Herman produced the only RAAF records that he could find with any reference to Mr Turnbull’s weight. They showed that on 12 June 1963 his weight was 147 lbs or 10 ½ stone (66.82 kgs) and the Medical Officer commented “A somewhat flabby young man – exercise will correct this” (R20, p82). On 15 December 1964 his weight had reduced to 130 lbs or 9 stone 4 lbs (59.09 kgs).
26. On 15 December 1964 Mr Turnbull was referred by the RAAF Medical Officer to a Dr Collins at Wagga for an opinion about a soft liver edge below the rib margin, which was detected at routine examination. The referral to Dr Collins stated (T24, p140):
He told me he had lost some weight recently but doesn’t complain of anything.
Dr Collins reported (T24, p140):
He attributes his weight loss to pressure of exam periods and is gaining it once more.
27. There was no record of any medical examination after Mr Turnbull returned from Ubon. There is not even a record of his regular annual medical examination. As was pointed out by the Tribunal, some records were clearly missing. There is a note dated 24 February 1969 on one of his medical records which refers to Mr Turnbull being concerned about not being able to get a re‑engagement because he was not medically fit (R13 p81). However, there is no record of him being found not to be medically fit, although that must have happened before 24 February 1969.
28. Mr Turnbull said that when he got back to Australia he was still anxious. He discribed how he was feeling (trans, p29):
quite withdrawn, very jumpy, quite irritable, very cranky, very worried about what was going on, why the weight had come off, not knowing what was going on at all.
29. Mr Turnbull said that he was given a bottle of vitamin tonic as treatment from the RAAF doctors, but he continued to lose weight, and his weight fell to 6 stone. At that stage Flight Sergeant Brown suggested he see a Dr Brandt in Wagga. Dr Brandt attributed the weight loss to an anxiety state which he said had occurred while Mr Turnbull was overseas. Mr Turnbull said Dr Brandt gave him an anti‑depressant or something similar and vitamin pills, and his weight improved.
30. Mr Turnbull said his symptoms improved slightly but he remained introverted and unsociable, and his drinking increased. He said he used alcohol for self-medication. He also suffered from nightmares about guard duties with people climbing over fences with rifles and flashbacks of the plane crash. He said he would wake from the nightmares in a cold sweat and shaking.
31. Mr Turnbull said anxiety medication was prescribed for him when he was at Amberley in 1968. He had developed an ulcer at the time. The medical records show Amytal was prescribed on 30 April, 3 May, 31 May and 3 October 1968 (T24, p151-152). The note for 31 May 1968 reads:
for 2/52 Ulcer was quiescent Now pains again. Is on Kalantyl gel & Tabs. Probanthinetid Amytal 50mg. Is sticking to diet. Amytal not slowing him down at all. Is quite a worrier. Gets “in a flap” easily and frequently. R Amytal 150 mg tid.
32. When the Tribunal asked what symptoms would have required “slowing down” in May 1968, Mr Turnbull said (trans, p83):
I was very anxious, very edgy, very much on edge, always had to get everything done on the spot, nothing could wait till tomorrow, plus I had to, after Thailand, with the anxiety and everything else, I felt that I had to prove myself.
And when you say you thought you had to prove yourself, do you mean because you felt you hadn’t handled the guard duties well or what? ---- Well, I hadn’t handled the guard duties, the stress levels very well, I thought I had to push myself harder and harder.
33. Mr Turnbull said he continued to consume alcohol during his service. His anxiety and stress levels remained quite high. He explained (trans, p29):
I did become very withdrawn socially, introverted, I found it very hard to make friends, I found it very hard to trust people, hard to talk to people, the nightmares were still there, the flashbacks were there, they would come and go. Sometimes I think they would be gone, then all of a sudden they would come back again, and they still come to this date, a bit more infrequently, but they still come when you least expect them.
34. Mr Turnbull said that his weight continued to fluctuate with his anxiety state throughout his time in the RAAF, although it was never as severe a problem as it had been on his return from Ubon.
35. After discharge, Mr Turnbull became an assistant accountant with Email and then worked at MMI on workers’ compensation claims from 1976 to 1983. During that period his alcohol consumption was increasing, and he felt he had high anxiety and stress levels.
36. Some time in the early 1980s, Mr Turnbull began seeing Dr Bankier, a psychiatrist. Dr Bankier arranged for Mr Turnbull to be admitted to a de-toxification unit for treatment of alcohol abuse. The treatment was successful in that Mr Turnbull gave up drinking alcohol and has not resumed since then. However, Mr Turnbull continued attending Dr Bankier for treatment for anxiety until Dr Bankier’s death in 1992. He was prescribed medication for anxiety and depression during that period. Since then Mr Turnbull has been treated by Dr Athey, who is also a psychiatrist. In 1995, Dr Athey felt it was important to withdraw the psychotropic medication and admitted Mr Turnbull to a psychiatric hospital for that purpose. Dr Athey wrote that Mr Turnbull continued to require supportive psychotherapy.
37. In 1985, Mr Turnbull began working at the Motor Accident Board, which later became the Transport Accident Commission (“the TAC”). He retired in 1994 on the grounds of ill-health. At the time he was under stress at work. He described his reaction to that stress (trans, p31):
Cutting off from all social contact, increasing medication intake, trying to work my way out of it, internalising all the problems.
And you were referred to a wide range of specialists in relation to your diarrhoea, bowel, internal problems? --- Correct, that is correct.
38. Mr Turnbull said he was not given any specific diagnosis, but the specialists told him his problems were “possibly anxiety related”.
39. Mr Turnbull said that he likes to think that his condition is improving, but he is still quite emotional, anxious and depressed at times. He says his sleep also fluctuates. He still has nightmares of people coming at him with weapons, or he sees a low flying aircraft and a crash. He says he may have frequent nightmares for, perhaps, three to four weeks and then may not have any for a month or two.
40. Mr Turnbull agreed that he had no problem with the performance of his service duties after Ubon and that his conduct was rated as good or even “exemplary” (R20 p130). He said that he was not as sociable or as happy as he had been in the service but, “I kept to myself, I kept problems to myself.”
41. Mr Turnbull said that he did not attract criticism in his work until he began at the TAC. He said the problem was that he was not an outgoing personality (trans, p64):
I was very introverted, all I wanted to do was sit down and do my work, be left alone, do what I had to do and just in general get the job done.
42. Mr Herman drew our attention to a report from the TAC to Dr Bankier (R20 p102) which reported that Mr Turnbull tended to “over-exert himself and places many unnecessary stresses on his own performance levels”. Mr Turnbull pointed out that he had worked in the same way when in the RAAF. That is consistent with a RAAF report where his diligence is described as “outstanding” (R20 p130A).
43. Mr Herman referred Mr Turnbull to a note in Dr Athey’s records on 29 July 1993. Dr Athey wrote (R19, p64):
Claims all his problems started 7 years ago (ie: 1986) when his adopted daughter left home age 21.
44. As the Tribunal pointed out, that could not be correct. The medical records before us establish that Mr Turnbull had been attending Dr Bankier for psychiatric treatment in 1983, and that he was having Amytal prescribed as early as April 1968.
45. There is some support for Mr Turnbull’s evidence as to his anxiety and weight loss in Thailand, in Dr O’Connor’s clinical notes, which cover the period from 8 October 1992 to 6 July 1993. That was before Mr Turnbull had lodged any claim to have conditions accepted as war-caused. Dr O’Connor was a treating medical practitioner. He took a history, when he first saw Mr Turnbull, that he had lost weight down to 7 ½ stone while in Thailand (R20 p185). Dr O’Connor also noted in the history taken on 8 October 1992 that Mr Turnbull suffered anxiety in Thailand.
46. Mr Turnbull said that he had started drinking to control his anxiety. He said he had not seen “the necessity” to take it up earlier. When he did, it was to sort out his problems without “annoying” medical staff. When the Tribunal asked Mr Turnbull to give examples of what he did when he was irritable, he said he would be very short and snap at people who asked him questions. He said he did not trust people and so he was wary of them and would almost withdraw from them.
47. Mr Turnbull lost his licence due to drink driving in 1982. At the time, he gave up drinking, as his drinking was causing domestic problems.
48. Mrs Turnbull said that she had first met Mr Turnbull in January 1964 at Wagga. She said she had known him for 12 months before he went to Ubon. She said (trans, p75):
He was in very good health, happy go lucky, like all teenagers I guess. We used to enjoy sort of going out dancing, to tennis and picnics, all of those things with our friends.
49. Mrs Turnbull said that the main thing she recalled about her husband’s return from Ubon, in late July 1965, was her shock at the fact he had lost four stone. She said that it shocked not only her, but also their families and friends. She said that, emotionally, he was more withdrawn than he had been prior to going to Ubon, but that her main concern at the time was his dramatic weight loss.
50. Mrs Turnbull said that prior to going to Ubon Mr Turnbull never drank nor smoked. After his return she said that “he did drink some”. She recalled that his drinking habits gradually got worse. Mrs Turnbull said that after their marriage she noticed that Mr Turnbull did not sleep as well as she did, and that he had nightmares.
51. Mrs Turnbull pointed out that in the wedding photos, Mr Turnbull had already put on some weight on in the year he had been back from Ubon, while being treated by Dr Brandt. In answer to a question from the Tribunal, Mrs Turnbull said that her husband’s nightmares did wake her up because of the movements he made when he became afraid during the nightmare. She said her husband had always had nightmares from when they were married. She said that Mr Turnbull was sometimes irritable after his return from Ubon, and he no longer seemed to enjoy activities like dancing, tennis and picnics, as he had done before the posting to Ubon.
52. It was Mrs Turnbull’s recollection that it took about 2 years for Mr Turnbull to regain his weight. She said that he kept his usual weight of about 11 stone and it would stay the same, “except, sort of, in very stressful situations” when “the weight would just fall off him” (trans p77).
53. Mrs Turnbull confirmed that Mr Turnbull had gone to see Dr Brandt in Wagga on the recommendation of his Flight Sergeant. She said that with Dr Brandt’s treatment, Mr Turnbull gradually got back to normal.
54. Dr Cole, a psychiatrist, gave evidence for Mr Turnbull. He said that weight loss could be a symptom of GAD, because people with the disorder eat less and also burn off more energy. He said that is especially likely in a case like this, where the documents before the Tribunal show no medical cause for the weight-loss was found.
55. The T documents at T5 include reports from Mr Tjandra, a colorectal surgeon who had seen Mr Turnbull in 1996, who noted “a complex medical history” with the main problems being “general weight-loss, lethargy and depression”.
56. Dr Wall, a gastro-enterologist physician, had also been consulted in 1996, in regard to Mr Turnbull’s symptoms of diarrhoea and weight-loss as far back as 1965. Dr Wall wrote (T5, p15):
There is no doubt that he has a personality different from the usual one which is encountered, and this makes one do a double take on assessing his symptoms. He seems extraordinarily high strung, tense and even jumpy, and yet in short bursts is very focussed in his ability to provide information.
57. Dr Wall concluded, after setting out a history of attempts to treat Mr Turnbull so as to achieve weight gain (T5, p16):
There were a few things that had not yet been tried with Mr Turnbull but only a few. An attempt to control his diarrhoea and digestive disturbance was made by giving him Sucralfate, followed by Prepulsid, followed by Periactin. None of these caused any benefit. He had previously failed with Imodium, Lomotil and Kaolin. His initial weight gain in my office was 52.5Kg., and this had risen to 56.5Kg. over a 3 month period, possibly under the influence of the Periactin, a non specific assistance for weight gain, and possibly because I re-ordered pancreatic enzymes and his diarrhoea cut down quite a lot. However he is now gaining no further weight, and indicates that he is sleeping perhaps 2 hours at night, that he still doesn’t have a full appetite, and that he has a short attention span with a very rapid depletion of energy. Looking at him I believe that these statements are not deceptive, and that he has a major disability at a physical and probably emotional level which is so bad as to make him unemployable.
58. Dr Wall suggested a working diagnosis of severe irritable bowel syndrome would be appropriate, but he said that would be “only touching the surface of his problems”.
59. Dr Metz, who is also a gastroenterologist, saw Mr Turnbull on 9 April 1996 for the purpose of providing a report, but had seen him as a treating doctor ten years earlier, and in June 1995. He wrote (R20, p57):
My conclusion ten years ago was that he had a markedly irritable bowel with associated diarrhoea and that at the time, he was grossly overweight. No other diagnoses were made at the time, despite numerous investigations. He clearly also had a problem of anxiety, alcoholism, and difficulty coping in the workplace.
60. Dr Metz concluded (R20, p59):
I should add the comment that in reviewing the various opinions on his file, including those from Dr Heath, Dr Gilbert and Dr Sargeant, it is repeatedly stated that he has Crohn’s disease, pancreatic insufficiency, and a malabsorbtion syndrome. To my knowledge, none of these diagnoses has ever been confirmed. When I specifically asked Mr Turnbull about these, he indeed gave his opinion that he understood that the diagnosis had not been confirmed. This brings me back to my original comment that I think it is most likely that he has anxiety, depression, alcoholism (although not currently drinking), and a severely irritable bowel and that the other diagnoses have been postulated but never confirmed, despite intensive investigations.
61. Dr Cole referred to that history, and also to the fact that the service medical records (T24, p140) show that Mr Turnbull had lost weight prior to going to Ubon and that he attributed that weight loss to exam pressure. Dr Cole said that suggested that Mr Turnbull is the sort of person who loses appetite and loses weight due to anxiety.
62. It was put to Dr Cole that Mr Turnbull had a number of other stressors which could be productive of anxiety, such as his gastro-oesophageal problem, which Dr Cole said could cause or be symptomatic of anxiety, and also the family situation when his adopted daughter left home. Dr Cole said, in his opinion, the anxiety disorder was evident on Mr Turnbull’s return from Ubon. He acknowledged that Mr Turnbull may have had nervous symptoms at an earlier time, but he said he would not say of any stage earlier than Mr Turnbull’s time in Ubon, that there were symptoms upon which it would be appropriate to diagnose GAD.
63. The respondent called Air Vice Marshal Rogers, who served at Ubon, and was there from 20 May to 16 July 1965, which covers the date when the Thai plane crashed. Air Vice Marshal Rogers said he did not see the accident, but he heard a “thump” and as he left the pay section building, he looked to his left and saw a lot of smoke. He said that prior to that “thump”, the sounds around were of normal activity due to phantoms, and no unusual engine sounds had attracted his attention until he heard the “thump”. Air Vice Marshal Rogers was at the time a 21 year old Pilot Officer. He said that the reason for Australian presence at the Thai Air Force base at Ubon was to provide air defence, not ground defence. He said that the area around the base became more active after August/September 1965, but Mr Turnbull had returned to Australia by then.
64. Air Vice Marshal Rogers agreed that a request had come from the pilot of the Thai aircraft which crashed, for permission to tiger the strip, and that tigering the strip would cause more noise than if a plane had simply come in to land.
65. Dr Byrne, a psychologist who gave evidence for the Commission, accepted that Mr Turnbull suffered from GAD. He said that if the Tribunal accepted Mr Turnbull’s evidence, that he had anxiety symptoms on his return from Thailand, then he would agree that the experience of being in Ubon played some role in the causation of Mr Turnbull’s GAD. He said that if the medical notes show that Mr Turnbull was prescribed Amytal in 1968 and Valium and Mogadon in 1970 and 1974, it is very likely that he was suffering from anxiety at that time. He also agreed that weight loss can be a symptom of anxiety and depression, and that the experiences in Ubon could be stressful, particularly to a man with a nervous type of disposition.
66. Mr Chancellor submitted that the evidence of Mr and Mrs Turnbull pointed to Mr Turnbull suffering the symptoms of GAD on his return from Ubon. He submitted further that the material in the gastro-enterological medical reports before the Tribunal pointed to Mr Turnbull’s severe weight loss, as to which evidence was given by him and by Mrs Turnbull, being a symptom of anxiety. He submitted that their evidence as to social withdrawal and a change in personality on Mr Turnbull’s return from Ubon was evidence pointing to symptoms of anxiety at that time.
67. Mr Chancellor submitted that although Air Vice Marshal Rogers gave evidence that the base at Ubon was a fairly benign environment, we should consider how Mr Turnbull perceived that environment.
68. The hypothesis relied on by Mr Turnbull is that he developed GAD as a result of his experiences in Ubon in 1965, when he witnessed the crash of the Thai aircraft at Ubon Air Strip, and when he was obliged to carry out guard duty, carrying a loaded rifle, although he had expected only to be engaged in accountant clerk activities as he had been in Australia. He relied in particular on one occasion when he had to intercept people climbing the fence, who turned out to be Australian Officers returning after curfew, but who he thought at first might have been enemy attempting to enter the base.
69. We find that the material before us points to a hypothesis connecting Mr Turnbull’s GAD with his operational service in Ubon.
STEP(2) THE RELEVANT STATEMENTS OF PRINCIPLE
70. The Repatriation Medical Authority has formulated a SoP for GAD. At the time of the hearing, the relevant SoP was Instrument No. 1 of 2000. As discussed in paragraph 10 above, the SoP in force at the time the claim was lodged, or at the time the decision of the Commission was made, may also be relevant. The SoP in force at the time Mr Turnbull made his informal claim for disability pension for conditions including severe weight loss, on 14 August 1997, and his formal claim for severe weight loss, was No. 48 of 1994, as amended by No. 275 of 1995. They were still in force when the Commission made its decision of 24 September 1998.
STEP (3) WHETHER THE HYPOTHESIS IS REASONABLE
71. As the Full Federal Court said in Deledio, the hypothesis will be reasonable if it “is consistent with the "template" to be found in the SoP”. First it must be tested against the SoP current at the date of hearing, namely Instrument No. 1 of 2000. That SoP recognises the following relevant factor as raising a reasonable hypothesis connecting anxiety disorder with the circumstances of a person’s service:
5(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
72. Clause 4 requires that the relevant factor must be related to relevant service. Clause 8 contains the following definition of “severe psychosocial stressor”:
“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;
73. The description of a “severe psychosocial stressor” in Instrument No. 1 of 2000 requires that the occurrence evoke feelings of “substantial distress in an individual”, and the examples given are of an individual being shot at, or 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. In this case, there were two major stressors, on Mr Turnbull’s evidence. The first was witnessing the plane crash, which was an “identifiable occurrence” which evoked “feelings of substantial distress” in Mr Turnbull, even though it did not happen to him or a close friend or relative. The second was the experience of having to go on guard duty. In one particular incident Mr Turnbull perceived himself to be at risk of being shot at or otherwise attacked by an enemy, causing him to suffer feelings of “substantial distress”.
74. I consider that witnessing a plane crash, in which a pilot dies, or even witnessing the immediate aftermath of such a plane crash, can be a “severe psychosocial stressor”, such as to meet the definition in the SoP, even when the pilot was not known to the individual observing the crash. It is not in dispute that a pilot was killed when the Thai plane crashed at Ubon airfield. Mr Turnbull said that occurrence evoked feelings of substantial distress in him.
75. The important requirement of the definition in my view is that the identifiable occurrence must evoke “feelings of substantial distress” in the individual. Mr Turnbull’s evidence was that the plane crash did evoke feelings of substantial distress in him. I consider that the examples in the definition of “severe psychosocial stressor” are no more than examples. They are there to give some idea of the sorts of stressors which might be expected to evoke “feelings of substantial distress in an individual”. They do not mean that, if there is evidence pointing to a similar but somewhat lessor service-related stressor evoking feelings of “substantial distress” in an individual, that cannot satisfy the requirements of the SoP so as to raise a reasonable hypothesis.
76. Similarly, I consider that an incident which causes fear of being shot at or otherwise attacked also meets the definition, even if the fear was really misplaced. That is established by the decision of the Full Court of the Federal Court in Repatriation Commission v Stoddart (2003) FCAFC 300. The Full Court dismissed an appeal from the decision of Mansfield J in Stoddart v Repatriation Commission (2003) FCA 334. Mansfield J held that it is not appropriate to judge the objective validity of a threat of injury or death unrelated to the knowledge of the person experiencing, witnessing or being confronted with the threat.
77. As the men trying to climb the fence at Ubon were Australian officers, there was no danger to Mr Turnbull. In fact, it was apparent as soon as Mr Turnbull saw them in the light that they were Australian. But Mr Turnbull was a high strung and immature individual. He was in a situation in which he had not expected to find himself, when he enlisted as an accounts clerk. He said guard duty made him very nervous, jumpy and anxious, and the incident made him scared and gave him “an awful fright”. I bear in mind the description of him by Dr Wall as a “tense and even jumpy individual” (T5, p15), and by his Commanding Officer at Ubon as “immature and having a personality deficiency” (R13, p186-9).
78. The next issue is whether there is evidence pointing to Mr Turnbull having the clinical onset of GAD within 2 years of leaving Ubon. Mr and Mrs Turnbull both described the onset of symptoms which Dr Cole said are symptoms of GAD. Mr Turnbull said that he worried a lot, particularly about his severe weight loss, and that he self-medicated with alcohol from about the time of his return from Ubon. He said, as set out in paragraph 28 of these reasons, that when he came back to Australia, he was (trans, p29):
quite withdrawn, very jumpy, quite irritable, very cranky, very worried about what was going on, why the weight had come off, not knowing what was going on at all.
79. Mr Turnbull also said that he was introverted and unsociable. He said he suffered nightmares about performing guard duty and flashbacks of the plane crash. Mrs Turnbull confirmed that Mr Turnbull suffered nightmares from the time of their marriage a year after his return from Ubon, and that he was emotionally withdrawn and irritable, and no longer seemed to enjoy activities he had enjoyed before going to Ubon.
80. The concept of "clinical onset" of a disease has been considered in a number of decisions. In Lees v Repatriation Commission (2002) 36 AAR 484, the Full Court of the Federal Court considered the concept of clinical onset of a generalised anxiety disorder. The Full Court referred to Repatriation Commission v Cornelius [2002] FCA 750 where Branson J adopted the approach of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, namely:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…
81. The Full Court also referred, with approval, to Repatriation Commission v Gosewinckel (1999) 59 ALD 690 where Weinberg J (at paragraph 64) said:
[64] The SoP requires the presence of a number of distinct symptoms, of which “clinically significant distress” and “restlessness or feeling keyed up or on edge” are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A)–(F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
82. In this matter, the definition of GAD in SoP No. 1 of 2000 is as follows:
“generalised anxiety disorder” means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
83. Dr Cole said that on the history given to him, he was of the opinion that Mr Turnbull had the clinical onset of anxiety disorder on his return from Ubon. I find that there is evidence pointing to the clinical onset of GAD within two years after Mr Turnbull’s return from Ubon.
84. There is evidence of excessive anxiety and worry which commenced in Ubon and continued afterwards and, in fact, still continues. There is evidence that Mr Turnbull found it difficult to control that anxiety and worry and saw Dr Brandt for help with the weight loss which resulted from the anxiety and worry, and that Dr Brandt gave him medication for that purpose. He also used alcohol for self-medication to control the anxiety and worry. There is evidence that Mr Turnbull’s anxiety and worry when he returned from Ubon was associated with restlessness and feeling keyed up or on edge. He described himself as being “jumpy”. He and Mrs Turnbull both said he suffered from irritability and from nightmares which resulted in restless, unsatisfying sleep.
85. As to criterion D, listed in paragraph 82 above, there is no evidence pointing to the focus of the anxiety and worry being confined to features of any other Axis I disorder. As to criterion C, there is evidence of clinically significant distress in relation to the severe weight loss attributable to the anxiety. There is evidence of Mr Turnbull seeking medical treatment for his severe weight loss during the two years immediately after his return from service and his weight loss being successfully treated by Dr Brandt, who told him it was due to an anxiety state, and prescribed an anti-depressant or something similar, as well as vitamin pills. There is also evidence of Mr Turnbull being treated with anti-anxiety medication by RAAF treating doctors from April 1968 (T24, pp151-2).
86. There is also evidence of social withdrawal and worry. Mrs Turnbull commented on Mr Turnbull’s social withdrawal after he returned from Ubon, saying that he no longer enjoyed normal social activities he had before Ubon. As discussed in paragraph 33 above, Mr Turnbull said that he became socially introverted and found it hard to make friends, trust and talk to people. A RAAF medical officer noted in May 1968 that Mr Turnbull was “quite a worrier” and “’gets in a flap’ easily and frequently” (T24, p151).
87. I find that the hypothesis raised on behalf of Mr Turnbull does contain material pointing to the satisfaction of factor 5(a)(ii) of SoP No. 1 of 2000.
STEP (4) WHETHER I AM SATISFIED BEYOND REASONABLE DOUBT THAT GENERALISED ANXIETY DISORDER IS NOT WAR-CAUSED
88. Having found that the hypothesis raised does contain material pointing to the factors required in SoP No. 1 of 2000, I must consider whether I am satisfied beyond reasonable doubt that Mr Turnbull’s incapacity from GAD does not arise from a war-caused disease. I have concluded that I am not so satisfied. I consider that there is no material establishing that Mr Turnbull did not suffer a “severe psychosocial stressor” whilst in Ubon. The fact that Air Vice Marshal Rogers did not find his time at Ubon stressful, cannot satisfy me that Mr Turnbull did not find the occurrences he described to be “severe psychosocial stressor[s]”. Air Vice Marshal Rogers acknowledged that Mr Turnbull may have perceived a real threat once the United States build up of over 60 F-4 Phantom aircraft began, and Mr Turnbull had to perform guard duties. The fact that Mr Turnbull did not recall that there were two US F-4’s landing on the runway at the time of the crash of the Thai aircraft in 1965 does not cast doubt on the genuineness of his recollection. It simply establishes that memory can be incomplete, particularly almost 40 years after the event.
89. Dr Byrne’s evidence did not satisfy me beyond reasonable doubt that Mr Turnbull did not suffer the clinical onset of GAD within two years of his service at Ubon. Dr Byrne accepted the diagnosis of GAD. He obtained a history from Mr Turnbull that he had symptoms on his return from Thailand. It was his opinion that Mr Turnbull’s GAD was caused by a combination of early childhood problems and health difficulties, but he said that if Mr Turnbull had symptoms on his return from Ubon, then he would agree that his time in Ubon played some role in the causation of Mr Turnbull’s GAD. As I have explained, there is evidence pointing to Mr Turnbull having symptoms of GAD on his return from Ubon.
90. There is no evidence that satisfies me beyond reasonable doubt that Mr Turnbull’s incapacity from generalised anxiety disorder does not arise from a war-caused disease.
91. I would set aside the decision under review. In substitution, I would decide that Mr Turnbull’s generalised anxiety disorder is a “war-caused disease” with effect from 14 May 1997.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: ....................................................................................
AssociateDate/s of Hearing 15 July 2003 & 29 September 2003
Date of Decision 18 June 2004
Counsel for the Applicant Mr Chancellor
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr Purcell
Advocate for the Respondent Mr Herman
REASONS FOR DECISION
18 June 2004 Mr C Ermert, Member
Associate Professor Maynard, Member1. We agree with the reasons of Senior Member Dwyer as far as and including paragraph 72. However, we cannot agree that witnessing a plane crash in which a pilot, who was not known to the applicant, dies, is a “severe psychosocial stressor” as described in SoP No. 1 of 2000. Nor do we consider that the incident described by Mr Turnbull, when he was on guard duty, meets the definition in the SoP. We consider that the events described by Mr Turnbull do not have the character of the examples given in the definition of “severe psychosocial stressor” in clause 8 of SoP No. 1 of 2000.
2. Thus, we consider that the material before the Tribunal does not raise a reasonable hypothesis recognised by SoP No. 1 of 2000. Therefore, we must, as discussed in paragraph 10 of the reasons of Senior Member Dwyer, refer to SoP No. 48 of 1994, as amended by Instrument No. 275 of 1995. In accordance with the decision of the Federal Court in Gorton, Mr Turnbull is entitled to rely on that SoP.
3. Instrument No. 48 of 1994 as amended by No. 275 of 1995 (“as amended”), in paragraph 1(b) recognises as a factor raising a reasonable hypothesis “experiencing a stressful event, not more than 2 years before the clinical onset of Generalised Anxiety Disorder”. The definition of “stressful event” in the SoP is:
“stressful event” means an occurrence which evokes feelings of anxiety or stress.
4. That is a much easier definition to satisfy than that of a “severe psychosocial stressor”. We consider that there is evidence pointing to the two events described by Mr Turnbull evoking feelings of anxiety and stress in him, and therefore to those events being “stressful events” as defined in SoP No. 48 of 1994 as amended.
5. Like factor 5(a)(ii) in SoP No. 1 of 2000, factor 1(b) of SoP No. 48 of 1994, as amended, requires that the relevant events are experienced in the 2 years before the “clinical onset” of Generalised Anxiety Disorder. Although we note that the definition of GAD in SoP No. 1 of 2000, as set out in paragraph 82 of the reasons of Senior Member Dwyer, has some differences from that contained in SoP No. 48 of 1994, as amended, the definitions are similar in all material respects. We agree with the reasons of Senior Member Dwyer in paragraphs 78 – 86, and likewise conclude on that basis that there is evidence pointing to Mr Turnbull having the clinical onset of GAD within 2 years of returning from Ubon.
6. We find that there is evidence pointing to Mr Turnbull having experienced “stressful event[s] not more than 2 years before the clinical onset of Generalised Anxiety Disorder”. Factor 1(b) of SoP No. 48 of 1994, as amended, is satisfied.
7. Finally, we must consider whether we are satisfied beyond reasonable doubt that Mr Turnbull’s incapacity from GAD does not arise from a war-caused disease. We agree with the reasons of Senior Member Dwyer contained in paragraphs 88 – 91 and similarly conclude that we are not so satisfied.
8. We agree that the decision under review should be set aside and that, in substitution, the Tribunal should decide that Mr Turnbull’s generalised anxiety disorder is a war-caused disease with effect from 14 May 1997.
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C. Ermert, Member
Associate Professor J.H. Maynard, Member.Signed: ....................................................................................
AssociateDate/s of Hearing 15 July 2003 & 29 September 2003
Date of Decision 18 June 2004
Counsel for the Applicant Mr Chancellor
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr Purcell
Advocate for the Respondent Mr Herman
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