Wakefield and Repatriation Commission
[2005] AATA 593
•17 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 593
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/103
VETERANS' APPEALS DIVISION ) Re WAYNE EDWARD WAKEFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date17 June 2005
PlaceHobart
Decision The Tribunal sets aside the decision of the Veterans' Review Board of 23 July 2002, and in substitution therefore decides that the applicant presently suffers from anxiety disorder, depressive disorder and alcohol dependence and that each of those conditions is a war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986 (“the Act”), with effect from and including 21 June 2001.
The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant.
[Sgd The Hon R J Groom]
Deputy President
CATCHWORDS
Veterans’ Affairs – disability pension – applicant rendered operational service in Royal Australian Navy in 1971 – whether applicant suffering anxiety disorder, depressive disorder and alcohol dependence – whether a reasonable hypothesis connecting conditions to operational service – whether satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s conditions are war caused – decision of VRB set aside.
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Colin Mack Cooke (1998) 171 FCA.
East v Repatriation Commission (1987) 16 FCR 653
Repatriation Commission v Bey (1999) 79 FCR 364
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Hill (2002) 64 ALD 582
Veterans’ Entitlements Act 1986 – ss9, 20(1)(3),120(1)(b), 177(2), 196B(2)
REASONS FOR DECISION
17 June 2005 The Hon R J Groom (Deputy President) 1. This is an application to review a decision of the Veterans’ Review Board (“the VRB”) dated 23 July 2002. That decision affirmed a decision of the Repatriation Commission of 5 April 2002 refusing the applicant’s claim that he is suffering service-related conditions of anxiety disorder, depressive disorder and alcohol dependence.
2. The hearing was held in Hobart on 8 April 2005. The applicant was represented by Mr Bruce McTaggart and the respondent by Mr Michael Castle. Oral evidence was given by the applicant and Dr Jacob Mathew. Several documents were tendered in evidence including the “T” documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, a witness statement by the applicant dated 6 April 2005,additional medical reports by Dr Mathew dated 12 January 1998, 18 November 2004 and 7 December 2004 and a letter written by Dr Graham Scarr dated 14 July 1995
3. The applicant served in the Royal Australian Navy (RAN) from 12 July 1970 to 19 May 1974. His eligible war service, which is also operational service, was on HMAS Sydney from 20 September 1971 to 16 October 1971, from 26 October 1971 to 18 November 1971 and from 24 November 1971 to 17 December 1971. In addition to his periods of operational service, the applicant also rendered eligible service during the period 7 December 1972 to 19 May 1974.
4. It became clear in the course of the hearing that the applicant relied on his periods of operational service. The standard of proof is therefore governed by s120 of the Veterans’ Entitlements Act 1986 (“the Act”) applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at pages 96 – 97.
5. The first issue to be decided by the Tribunal is whether the applicant suffers the claimed conditions. This issue is to be determined to the Tribunal’s “reasonable satisfaction” which is the ordinary civil standard of proof. See s120(4) of the Act and Benjamin v Repatriation Commission (2001) 70 ALD 622 and Repatriation Commission v Colin Mack Cooke (1998) 171 FCA.
6. In the course of the hearing, Mr Castle for the respondent conceded that the applicant does in fact suffer from the claimed conditions of anxiety disorder, depressive disorder and alcohol dependence (see Transcript pp31 and 32). On the basis of that concession but also the medical evidence before it, the Tribunal is satisfied to the required standard of reasonable satisfaction that the applicant does suffer from the claimed conditions.
7. The next issue for the Tribunal to determine is whether there is a sufficient link connecting the conditions suffered by the applicant and his operational service with the RAN.
8. In order to establish that link the Tribunal must first be satisfied on all of the material before it that an hypothesis has been raised connecting the applicant’s conditions to the relevant circumstances of his operational service.
9. The applicant confirmed in evidence that he had made a written statement dated 6 April 2005 and he verified the contents of that statement. That statement reads as follows:
1.I served in the Royal Australian Navy from 12 July 1970 to 19 May 1974. I joined when I was 15 years of age. I left school to serve.
2.I served in Vietnam onboard the HMAS Sydney in 1971 during three deployments. I was sixteen years of age during my first deployment.
3.I have no family history of depression, anxiety state or any other psychiatric disorder. Before my first deployment I was in excellent health. I did not consume alcohol other than on a rare occasion during junior recruit school when I would have a stubbie.
4.My first posting was to HMAS Leeuwin a base situated in Fremantle WA. As a junior recruit. This posting lasted 12 months. I passed the training course and had a passing out parade.
5.My first draft was to HMAS Melbourne at aged 16. Shortly after the Melbourne was to sail to the USA. I was happy to be going there.
6.However, my stay on HMAS Melbourne was short before I was drafted to HMAS Sydney. Shortly thereafter I was told the HMAS Sydney was being deployed to Vietnam to start bringing home troops. I was very anxious. I didn’t think I should be going due to my age.
7.On the way to Vietnam there was a stop over in Singapore for 48 hours. I was 16 years old and was thinking about Vietnam. It was at this stage I started smoking cigarettes. I became very anxious and wished that I had been transferred as I have previously requested of the CO.
8.On the way to Vietnam we practiced action stations i.e. readiness for war which made me anxious. On the radio through the PA I heard messages like “Aussie Ned Kelly bastards are going to die”. Some of the other soldiers told me it was Saigon Rose. This frightened me. On the way into Vang Tau the order to darken ship was given. I was on flight deck patrol as the darkened ship entered the harbour. I was extremely anxious as I didn’t know what to expect or where we were going. I patrolled the Flight Deck Guard with a loaded SLR rifle, with instructions to shoot first and watch the enemy. It was at this time I fully realised the danger and responsibility I had been given. This was a frightening and unbearable experience. I was petrified. I thought I could die. When I was relieved I ran downstairs.
9.My first day in Vang Tau Harbour I remember seeing a dead body floating in the sea. I was on the deck under the flight deck approximately 15 feet above the water level when I saw the body. This was my first experience with a dead body. I started sweating and later vomited several times. I went to the sick bay and got some anti-vomiting medication. This incident had a significant impact on me. I felt that was how I could end up. I further realised how I was in the war when helicopters, armoured vehicles and personnel were loaded before we left the harbour. It was extremely hot, smelly and there was a lot of noise and activity which concerned me. I was only 16.
10.On the way back to Australia I started to touch up the alcohol. I would pay other blokes for their beer issue. When I got leave in Adelaide and Sydney I got pissed. From this time onwards I have abused alcohol. There were anti-war protests in both Adelaide and Sydney. I was shocked and felt humiliated and depressed.
11.From my first deployment my anxiety level has remained high and I have suffered bouts of depression. I have trouble sleeping. I was having nightmares and flashbacks. Occasionally I would get the night sweats.
12.Word went round that we were going back to Vietnam. I fell in a hole again. I was shitting myself. I got pissed in Singapore on the way to Vietnam.
13.My second deployment was much the same as the first except I didn’t have to do flight deck sentry. On this occasion I saw rocket fire on the shore in the distance. I also saw bubbles in the harbour. I felt even worse than on my first deployment.
14.I returned to Sydney. There was a big anti-war protests on. They made me feel worse. I spent my leave getting pissed.
15.Word went around that we were going back again. I felt like shit. I thought I was pushing my luck.
16.On the way back the blokes thought something bad was going to happen. That was the general feeling onboard. I had it in my mind that I wouldn’t come back.
17.I recall a frightening experience on this deployment when the order was given to stand by for charges. I was down below. I did not know if we were under attack. The charges shook the ship. While this was happening gun ships and other special helicopters flew back and forward with troops and vehicles.
18.Also on this deployment I was frightened by hearing rifle shots at an unidentified craft.
19.Life onboard on all deployments was extremely hard. It was very cramped and morale was low. I witnessed small skirmishes between personnel. There was plenty of abuse. There was an offensive smell.,
20.When we returned to Sydney after the third deployment there were more protesters everywhere. We denied that we were from the HMAS Sydney for fear of our lives. We went and got drunk.
21.After my third deployment I was sent home for leave. My parents were worried about my heavy drinking and smoking.
22.I returned to HMAS Sydney for a short time before I was transferred to HMAS Cerberus to train as a steward.
23.When I finished my course I was posted to HMAS Nirimba. After six months I was transferred to HMAS Parramatta.
24.The HMAS Parramatta completed a tour of duty called “Far East Strategic Reserve”. By this time my drinking was still a problem. I was still experiencing nightmares and flashbacks. I drank when ashore and on ship as this was the only to get any sleep.
25.During the six month tour I started to neglect my duties in the Navy. I was dropped from my normal duties. Every time I went ashore I was drinking more and more. I felt that I was out of control but could not do anything about it.
26.My Divisional Officer approached me and told me I had a problem with alcohol and asked whether you wanted out. I said I did.
27.When the ship arrived in Sydney I was sent home on leave. My parents again told that I was drinking too much.
28.I finished my leave and returned to HMAS Parramatta. On returning my Divisional Officer advised that my discharge had been accepted.
29.Since my tour of duty in Vietnam I have felt anxious and depressed and continued to abuse alcohol. I have gradually become worse. I have lost my driving licence twice for drink driving. I have separated from my wife of 24 years approximately 18 months ago. I have had outburst of anger which my family have copped. I have been admitted to the Psychiatric Unit of the Royal Hobart Hospital with severe depression and was considered for Electro Convulsive Therapy. I also was admitted to the Hobart Clinic at Rokeby for inpatient management. During my admission to the Hobart Clinic I participated in what were effectively group sessions with approximately 6 to 8 other Vietnam Veterans.
30.I continue to suffer from unbearable frequent nightmares, flashbacks, restlessness, agitation, bursts of anger, heaving drinking and poor concentration. These have all been present since and in my opinion caused by my deployment to Vietnam. I am currently drinking 10 to 12 stubbies almost every night and on occasions also have a few scotches. On 3 or 4 occasions per month I would get very pissed when I’m on a downer. I have consumed alcohol at about that level since Vietnam.”
10. Dr Jacob Mathew, an experienced psychiatrist, gave oral evidence and was also the author of four written medical reports dated 12 January 1998, 8 August 2001, 18 November 2004 and 7 December 2004 which form part of the material before the Tribunal. Dr Mathew’s stated that in his opinion the applicant was suffering from anxiety disorder, depressive disorder and alcohol dependence and that these conditions were caused by his operational service with the RAN. He also expressed the view that on the balance of probabilities the earliest possible date that Mr Wakefield suffered the onset of each condition was “during the period of his tour of duty in the Vietnam War”. In his report of 8 August 2001, Dr Mathew said, in part, as follows:
“Mr Wakefield was referred to me by his general practitioner, Dr Scarr, for management of his anxiety state and depression. I first examined him on 2 July 1995 and at that time he was very depressed, agitated and anxious.
Mr Wakefield informed me that he served in the Australian Navy during the Vietnam War and since his discharge from the Navy anxiety state and depression has been a constant problem for him but he managed to survive until 1995 when he was injured while at work.
The injury worsened his depression and anxiety state”
…
Due to the young age at which he was recruited to the Australian Nav y and his frightening experience during the Vietnam War he is suffering from frequent nightmares, alcoholism, anxiety state and depression. He is now finding it extremely difficult to cope with life. He is married with two children who have suffered because of his alcoholism, depression, irritability and anxiety. He feels that his wife and children think that he is crazy.”
and further:
“Since his return from the tour of duty during the Vietnam war he has been depressed, anxious and agitated. In the last five years it has become unbearable. He has frequent nightmares, flashbacks, intrusive thoughts and poor concentration.”
11. Having regard to the whole of the material before it, the Tribunal is satisfied that the material points to the following general hypothesis connecting the applicant’s conditions with the circumstances of his operational service in Vietnam That hypothesis is that whilst onboard HMAS Sydney in or near Vung Tau harbour in Vietnam the applicant experienced various stressful incidents, including being on guard duty with a loaded rifle entering Vung Tau harbour for the first time not knowing what to expect, hearing radio messages purportedly from “Saigon Rose”, seeing a dead body in Vung Tau harbour, seeing bubbles in the harbour believing that they may be divers, hearing scare charges being detonated whilst he was below deck and hearing shots fired at an unidentified vessel. Further the hypothesis contends that those incidents caused his conditions which he contracted either at that time or certainly within a period of 2 years after experiencing the incidents, and that he has continued to suffer from those conditions from that time until the present.
12. It is not sufficient to merely raise an hypothesis. The hypothesis advanced must also be “reasonable” within the meaning of s120(3) of the Act. The hypothesis to be reasonable must be consistent with the “template” found in any relevant Statements of Principles (“SoP”) as determined by the Repatriation Medical Authority (RMA) pursuant to s196B(2) of the Act. There are in force relevant SoPs determined by the RMA. It is agreed by counsel for both parties that the following are the relevant SoPs:
(a) For the claimed anxiety disorder the SoPs is No 1 of 2000.
(b)For the claimed depressive disorder the SoPs is No 58 of 1998.
(c)For the claimed alcohol dependence the SoPs is No 76 of 1998 (in relation to operational service).
13. After considering the applicant’s oral evidence and the penultimate paragraph of Dr Burges Watson’s report of 10 December 2001 Mr Castle for the respondent quite properly conceded that the applicant was indeed suffering from alcohol dependence, that the condition arose out of his operational service and that the required factors and time periods within the relevant SoPs were satisfied. The Tribunal so finds and will not further consider that matter, but will make the appropriate orders with respect to that condition at the conclusion of this decision. It follows that only the Statements of Principles referred to in paragraph 12 (a) and (b) remain for further consideration by the Tribunal.
14. In respect of anxiety disorder and depressive disorder, in this application the relevant factor which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of a person’s relevant service is:
“Experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of (the) disorder.” (See paragraph 5(1)(ii) of SoP 1 of 200 at paragraph 5(g) of SoP 58 of 1998)
15. “Severe psychosocial stressor” is defined as meaning:
“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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.” (See paragraph 8 of SoP 1 of 2000 at paragraph 8 of SoP 58 of 1998)
16. The Federal Court in East v Repatriation Commission (1987) 16 FCR at 533 approved the following passage from the decision of the VRB in the case of Stacey (unreported), 26 June 1985:
“The addition of the word `reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised' by material before the Board, we think it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."
17. The approach in East was confirmed by the Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 372:
“Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even
though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.”
18. When considering whether an hypothesis is reasonable the Tribunal is not concerned with questions of proof of raised facts, nor is it required to choose between competing medical opinions.
19. The key words in the definition of severe psychosocial stressor in SoPs No 1 of 2000 and No 58 of 1998 “… an identifiable occurrence that evokes feelings of substantial distress in an individual.” This occurrence must occur within two years immediately before the clinical onset of the condition.
20. The applicant said in his witness statement that his experience as a young 16 year old onboard HMAS Sydney as it entered Vung Tau harbour was a “frightening and unbearable experience. I was petrified. I thought I could die.” On the applicant’s first day in Vung Tau harbour when he saw a dead body in the water, he said “…I started sweating and later vomited several times …”. (See paragraphs 8 and 9 of the applicant’s witness statement).
21. Being in a war zone for the first time and at a very young age these incidents caused him substantial distress and anxiety and arguably bring him within the definition of “severe psychosocial stressor”. The Tribunal therefore finds that the hypothesis has significant support in the material before the Tribunal and is reasonable.
22. As the hypothesis is reasonable the Tribunal must consider, pursuant to s120(1) of the Act whether it is satisfied beyond reasonable doubt that the applicant’s conditions were not “war-caused diseases” within the meaning of s9 of the Act. The Tribunal is so satisfied , if it is satisfied beyond reasonable doubt either that one or more of the facts supporting that hypothesis does, or do, not exist or that a fact inconsistent with that hypothesis does exist. (See Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Hill (2002) 69 ALD 582 at 595).
23. As much of the factual information is taken from the applicant’s own account, it is necessary to give consideration to his credibility. The applicant’s credibility came into question during the course of the hearing. It arose because Dr Mathew in his brief handwritten report of 12 January 1998 stated:
“I have treating Mr Wayne Wakefield for the past two and half years for anxiety state and depression following a major injury he sustained whilst at work. His experience during his service has seriously affected his mental state. He relates to me that he witnesses in Vietnam soldiers being killed in their suicide squads attacking Wayne’s ships and they were destroyed by ships’ soldiers, and several other horrifying scenes.”
24. That version of events is clearly in conflict with the applicant’s witness statement of 6 April 2005 and his evidence before the Tribunal. When asked in cross-examination about the above remarks in Dr Mathew’s report the applicant said:
“Oh, I wouldn’t have said it. The only thing that comes to mind on one or the trips there was an unidentified vessel approaching within the area that was warned and a few shorts were fired ….”. (Transcript p10)
In Dr Mathew’s report of 8 August 2001 at page 3, it is said of the applicant:
“… looking over the side he witnessed mangled bodies floating in the water.”
In his oral evidence Dr Mathew said the reference to “bodies” was incorrect. He said his report should have referred to “a body”. He explained that it “is a typing error or my own mistake.” (Transcript p17)
25. The evidence does not enable me to make a definite finding on exactly how the inaccurate version of events came to be included in Dr Mathew’s report of 12 January 1998. It may have been a mistake in accurately interpreting the applicant’s remarks or perhaps there was some other cause. However, whatever its cause, I do not find the conflict between the account of events set out in the medical report of 7 years ago and the applicant’s recent witness statement and oral evidence to be critical to this application.
26. Having had the opportunity to observe the applicant giving his evidence and being cross-examined and after considering all of the material before the Tribunal, I am satisfied that the applicant has endeavoured to be truthful and find that his account of the crucial events in this application to be both honest and accurate.
27. After considering all of the evidence before the Tribunal I am satisfied that the following facts are established:
(a)As a 16 year old on his way to Vietnam the applicant became very anxious and started smoking for the first time.
(b)He was also anxious when present on HMAS Sydney when action station was practiced.
(c)He became frightened when he heard messages purportedly coming from “Saigon Rose”.
(d)It was a frightening and unbearable experience for the applicant when he was on flight deck guard duty armed with an SLR rifle with instructions to shoot. After completing that duty he ran down the stairs, indicating his anxiety.
(e)He saw a floating dead body in Vung Tau harbour. It was approximately 15 feet away. He started sweating and later vomited several times after that incident.
(f)On his way back to Australia the applicant began to drink alcohol to excess.
(g)He felt shocked and humiliated by anti Vietnam war protests in Australia.
(h)From his first deployment his anxiety level was high and he suffered bouts of depression and had trouble sleeping.
(i)On his second deployment to Vietnam, he saw rocket fire in the distance and saw bubbles in the water of the harbour, believing that it could indicate divers. He felt worse than on his first deployment.
(j)He heard scare charges exploding beside the ship when he was below deck and he was frightened as he didn’t know what was happening.
(k)The applicant was also frightened by hearing rifle shots being fired at an unidentified vessel.
28. I find in particular that the applicant was substantially distressed when he saw the dead body floating in Vung Tau harbour. This incident must be seen in its unique context. An inexperienced and anxious 16 year old youth was present in a war zone for the first time. Dr Mathew agreed with Mr McTaggart that seeing a dead body in these particular circumstances would meet the definition of “severe psycho stressor” or “severe stressor”.
29. Dr Mathew was originally from India where he gained his basic medical degree and later practised, as a psychiatrist in the United Kingdom and Australia. After agreeing in oral evidence that seeing a body in these circumstances would be a “severe psycho stressor” or a “severe stressor” he made the following comments:
“… also putting a 16 year old boy into a ship and sending him to a war zone and then provoking severe anxiety what is going to come, and then explosives were used, and in the waters which shook the ship, and what is going to happen to him at that age without any life experience in itself, and the things that has happened and he became so anxious, there was so much of stress and he was exposed to it. I mean even in an adult person going into a war zone is enough and when a person is 16 years old in an active area of war there was more than enough stressors there which I have mentioned in detail in my report.” (Transcript p20)
30. The Tribunal finds that the applicant’s experiences on HMAS Sydney in and near Vung Tau harbour in Vietnam, as explained above, were identifiable occurrences that evoked “… feelings of substantial distress in an individual”.
31. The remaining matter to be determined is whether or not the clinical onset of the two conditions occurred within two years of the abovementioned identifiable occurrence. (See 5(a)(ii) of SoPs 1 of 200 and 5(b) of SoPs 58 of 1998).
32. Dr Mathew obviously knew the applicant well and has treated him for a number of years. Dr Mathew was particularly supportive of the applicant, both in the written reports he provided and also in the manner in which he gave his oral evidence. There is always the danger, of course, that a treating doctor can become so close to a patient and show such a degree of empathy that the doctor’s objectivity is open to question. However in this case I accept Dr Mathew’s opinions as to the diagnosis of the conditions and also on when the onset of the anxiety disorder and depressive disorder first occurred.
33. Dr Mathew in his report of 7 December 2004 answered two relevant questions put to him in writing by Mr Benson of Ogilvie Jennings a firm of Solicitors acting for the applicant as follows:
1.On the balance of probabilities, what
is the earliest possible date that Mr
Wakefield suffered the clinical onsetof anxiety disorder; “During the period of his tour of duty in the Vietnam War”.
2.On the balance of probabilities,
what is the earliest possible date
that Mr Wakefield suffered the clinical
onset of depressive disorder; “As above”.
The applicant’s tour of duty in Vietnam was, of course, limited to within the period September to December 1971.
34. In the material before me there is a typed note from Ms Rosemary Bennett who was a social worker with the Royal Australian Navy in Tasmania from 1981 until 1997. In her note Ms Bennett confirms that:
“Mr Wayne Wakefield’s parents were visited in 1972 by Mrs Jean Buckley, Naval Social Worker. Mrs Wakefield realised that this interview was very important and kept the visiting card in a safe place. … Mrs Wakefield remembers Mrs Buckley asking about Wayne’s childhood and intimating that Wayne was having a lot of problems and would be referred to a psychiatrist for assessment.”
I accept Ms Bennett‘s note and Mrs Wakefield’s reported recollections as accurate accounts.
35. In a report dated 7 December 2001 Mr Ian Brettingham-Moore, a counsellor with the Vietnam Veterans Counselling Service stated:
“The effects of Mr Wakefield’s chronic depression, anxiety and alcohol use have disadvantaged him on a psychological, social and occupational level. During his work like he has been employed by Telecom, the Hydro-Electric Commission, McCormack Construction and Boral. During his most recent employment (with Boral) he focused simultaneously on both paid work and voluntary work (as a plant operator and volunteer fire fighter respectively) to deal with a high level of agitation. Mr Wakefield was subsequently injured at work in 1995. Poor concentration, ongoing high anxiety levels and general agitation may have played a significant role in terms of causation.” (T documents p49)
Mr Brettingham-Moore is obviously expressing the opinion that the applicant’s depression, anxiety and alcohol dependence pre-dated his work related accident in 1995
36. Contrary to the views expressed by Dr Mathew and Mr Brettingham-Moore, Dr Burges Watson, also an experienced psychiatrist, said in his report dated 10 December 2001:
“There is really no evidence of him suffering from an anxiety state or depression prior to 1995”.
Dr Burges Watson was not called by the respondent to give oral evidence, nor did the respondent provide other expert medical evidence to counter the opinions of Dr Mathew and Mr Brettingham-Moore.
37. As to the time of the onset of the applicant’s conditions, I prefer the evidence of Dr Mathew. It appears Dr Burges Watson only saw the applicant once at the request of the respondent. In contrast Dr Mathew had treated the applicant over many years and it is reasonable to assume that he had a more thorough understanding of the applicant’s medical condition and its history. Dr Mathew’s views are supported by the applicant’s own version of events and by comments in Mr Brettingham-Moore’s report of 7 December 2001 and in the note from Ms Bennett which I referred to.
38. An issue arose at the hearing as to the true meaning of the applicant’s statement in paragraph 29 of his written statement that “Since my tour of duty in Vietnam I have felt anxious and depressed …”. Mr Castle suggested that the word “since” in this context did not mean “ever since” but “at sometime since”. Mr McTaggart countered by pointing out that the applicant had said in paragraph 11 of his statement “From my first deployment my anxiety level has remained high”. The Tribunal is satisfied that in using the word “since” the applicant meant that he had suffered an anxiety disorder and depression disorder from the time of his first deployment in Vietnam.
39. Having regard to the whole of factual and medical evidence before it, the Tribunal is satisfied, primarily on the basis of the evidence of Dr Mathew and Mr Brettingham-Moore, but also based in part on the applicant’s own evidence, that the applicant commenced to suffer from anxiety disorder and depressive disorder at the time of, or shortly after, he experienced the psychosocial stressors referred to above in 1971 whilst onboard HMAS Sydney in or near Vung Tau harbour in Vietnam. The Tribunal is satisfied that the onset occurred within two years following the applicant’s experiences.
Conclusion
40. It follows from the foregoing discussion and findings of the Tribunal that the Tribunal, for the purposes of s120(1) of the Act, is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s conditions of anxiety disorder and depressive disorder are war-caused.
41. Accordingly, the Tribunal, in accordance with s120(1) of the Act determines that the applicant’s present conditions of anxiety disorder and depressive disorder as well as the earlier referred to condition of alcohol dependence, which was conceded by the respondent (see paragraph 6), are each a “war-caused disease” within the meaning of s9 of the Act.
42. The date of effect of that determination is 21 June 2001 (being 3 months prior to the lodgement of the applicant’s claim for disability. (see ss20(1) and 177(2) of the Act).
Decision
43. For the above reasons, the Tribunal sets aside the decision of the Veterans’ Review Board of 23 July 2002 and, in substitution therefor, decides that the applicant presently suffers from anxiety disorder, depressive disorder and alcohol dependence and that each of those conditions is a war-caused disease within the meaning of s9 of the Act with effect from and including 21 June 2001.
44. The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 8 April 2005
Date of Decision 17 June 2005
Counsel for the Applicant Mr Bruce McTaggart
Solicitor for the Applicant Ogilvie Jennings
Counsel for the Respondent Mr Michael Castle
Solicitor for the Respondent Department of Veterans' Affairs
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