WALTER ALLEN and REPATRIATION COMMISSION
[2010] AATA 840
•29 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4853
VETERANS' APPEALS DIVISION ) Re WALTER ALLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date29 October 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .....................[Sgd].........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Incapacity payment – Applicant’s alcohol abuse and anxiety disorder related to operational service – No clinical onset of psychiatric condition within 5 years after the date of the incident – Applicant’s case does raise a hypothesis which could connect present conditions with service – Application of relevant statements of principles – Hypothesis raised is not a reasonable one – Decision under review affirmed.
Evidence Act 1995 (Cth) s 140
Veterans’ Entitlements Act 1986 (Cth) s 120A and s 120B
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1997) 45 ALD 205
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
29 October 2010 Dr K S Levy, RFD, Senior Member INTRODUCTION
1. The applicant Walter Michael Allen, a former member of the Royal Australian Navy (“RAN”) applied for medical treatment and pension for incapacity arising from anxiety disorder and alcohol abuse. Mr Allen makes this claim on the basis that both of these conditions were related to his operational service in the RAN. His application was refused by the Repatriation Commission on 3 January 2008. On review by the Veterans’ Review Board (“VRB”), his application was reconsidered but the decision of the Repatriation Commission was affirmed on 12 June 2008.
2. Mr Allen has appealed to this Tribunal. He was represented by Counsel. The matter was heard on 16 October 2009, 26 and 27 May 2010 and 2 June 2010.
ISSUES
3. The issues to be determined by the Tribunal are:
(a)Does the applicant suffer anxiety disorder which is attributable to Mr Allen’s war service? And,
(b)Is his alcohol abuse attributable to his war service?
EVIDENCE
4. The Tribunal had considerable documentary evidence which had been available to the Repatriation Commission and the VRB in considering the applicant’s claims. The Tribunal also has an updated statement of the applicant and of other witnesses in support of the applicant’s claim. In addition, reports by Writeway Research Service Pty Ltd have been filed on behalf of the respondent and research of relevant records and literature has been provided by Dr Albert Palazzo in support of the applicant’s case. Oral evidence was received from Mr Allen, Mr G W Scown and Dr Palazzo for the applicant. The authors of reports from Writeway Research Service Pty Ltd were also available to provide evidence on behalf of the respondent. In particular, Commander Caton, Lieutenant Commander Gardiner and Commander Fitzgerald also provided relevant opinion evidence for the Respondent.
EVIDENCE
Evidence of Mr Allen
5. At the time of the hearing, Mr Allen was 56 years old. He last worked in August 2000 and is currently on a service pension.
6. He told the Tribunal that he joined the Navy at age 16. He was one of eight children in his family and was the fifth child in the family constellation. He left school at age 15½ and worked for six months with the New South Wales Railway at Newcastle. He joined the Navy when he had just turned 16. He spent the first 12 months on HMAS Leeuwin in Western Australia undertaking initial training or familiarisation. He then served for three to four months on HMAS Duchess, a training ship from approximately July to September 1970 followed by approximately one month on HMAS Albatross at Nowra. He was then posted to HMAS Sydney. He spent the first three months of that posting berthed at Garden Island in Sydney and then from February to March 1971, HMAS Sydney sailed to Vung Tau in South Vietnam, via Tasmania and Adelaide. The ship was en route to South Vietnam within Australia for approximately seven days with an infantry battalion embarking the ship at Adelaide. It then sailed to South Vietnam where the battalion disembarked. After eight hours in Vung Tau Harbour, HMAS Sydney returned to Australia where Mr Allen remained posted to that ship for approximately three months. He was then posted to HMAS Cerberus to undertake a Stoker’s course, which he completed but shortly after, was posted to HMAS Nirimba to attend as a cook. He subsequently qualified in that trade and remained so employed for the remainder of his naval service.
7. Mr Allen served in the RAN from 12 July 1969 to 14 September 1975. In that period of 6¼ years, there is a period of approximately three weeks in which he served on operational service in South Vietnamese waters and also a period of almost three years which is recognised as defence service for the period 7 December 1972 to 14 September 1975.
8. Mr Allen’s evidence-in-chief was that he had virtually no training or even awareness or warning prior to going to South Vietnam about the existence or the likelihood of the use of scare charges. He merely understood that in a war zone, the ship had to be “watertight” and that he would be in the engine room. He was employed as a stoker and being a young sailor in training, he was taught his role which was involved in the maintenance of sprayers, which were essential to the operation of the desalination plant for the ship. He described his place of work in the engine room as being approximately 30 to 40 steps down from one of the upper decks and worked in there with approximately a dozen other sailors. He said it was hot and noisy and he undertook work shifts of approximately four to six hours. He described working in the engine room where the door or hatch at the top of the steps was closed. He told the Tribunal in examination-in-chief that the hatch had approximately 12 dog clips which were all closed.
9. The circumstances surrounding the incidents which are the subject of the present claim are that when the ship arrived in Vung Tau Harbour, it was virtually at daylight. When he woke up, he bathed, had a smoke and spoke to some of the sailors about being in a war zone. His evidence was that he understood that he was on a big ship which had a destroyer escort and that they were invincible. Shortly after, he had breakfast and then went to work in the engine room. After two hours working in the engine room, he heard a loud explosion. He said it was very loud and that there were other sailors in close proximity. When he heard the noise of the explosion he said “I just hit the deck and I physically shit myself”. He remained on the ground until two sailors then took him to the mess where he had a shower and obtained a fresh set of overalls. Whilst in the upper part of the ship and shortly after this incident, he said he heard sentries firing self-loading rifles (“SLRs”). He said “I hit the deck again and I in fact shit myself again. I heard someone say ‘There’s a body there,’ but I was told later on it wasn’t a body; it was actually a dead cow. And there was also a 44 gallon drum that was mentioned, but I was then escorted back to my mess, had a shower”. Mr Allen’s evidence of that stage of his experience was that he was told to:
“… ‘Get into your cot. You’re no good for duty any more today’.
So that’s what happened.
‘All right, now, did anyone explain to you what the explosion was?
… They did after, yes.
All right. How much after the explosion itself did somebody afford you an explanation of it?
… I really don’t know. I – it was sometime before I left the engine room, but I don’t know who. Time wasn’t of the essence, as you may imagine.
All right. When you heard this explosion what did you think? What did you think it was?
… Well, what went through my head was that we had been hit, by what I don’t know, and that we were sinking. That’s – that was it. That’s – was going through my head and I just couldn’t clear – I couldn’t clear my head – I couldn’t even hear the men talking to me.”
10. Mr Allen stated that he didn’t finish his shift. He heard sentries firing into the water. He described not being able to sleep or settle down so he got up and walked around on an upper deck of the ship. He heard a commotion amongst the other sailors and some laughing. It was one of the ship’s cutters which were caught on an anchor chain of HMAS Sydney. While he did not have a clear recollection of many of the facts, he said that the noise of the explosion he heard must have come from the side of the ship and in close proximity. However, he later said his understanding of the situation was from “through what I was told”. In relation to the cutter being caught on the ship’s anchor chain, he did not initially answer directly the question of whether he actually saw the cutter himself being caught on the anchor chain. On direct questioning from the Tribunal, he finally answered “I definitely saw that”.
Commander Scown
11. Commander Scown was not on board HMAS Sydney on the trip which Mr Allen made to South Vietnam in 1971. However, Commander Scown did have experience as a Sub-Lieutenant and he made two trips to South Vietnam in 1967 and 1968 on HMAS Sydney. Like the applicant, he was asked a number of questions about the meaning of terms such as “Condition Yankee” and his answers were quite vague. He was asked about the meaning of “Operation Awkward” and he was able to explain that as one of the states of awareness.
12. He was also asked about the use of scare charges. His answer to this question was also vague, although there was a considerable passage of time since he had served on HMAS Sydney but said he was “inclined to say scare charges were used”. However, he couldn’t be sure. In relation to briefings of sailors prior to arriving in Vung Tau Harbour, he said that they probably occurred less often than they should. In respect of incidents being reported in the ship’s report of proceedings, the witness said that the inclusion of detail in those reports were a matter of policy and instruction by Commanding Officers. It was put to him that there was no report of scare charges that day, 21 February 1971. He said he was not surprised. There was a lengthy examination about detail recorded in the logs and report of proceedings. Mr Williams, for the respondent, objected to the questioning on the basis that it was long, of a general nature and speculative.
Dr Palazzo
13. Dr Albert Palazzo is a military historian. He prepared a report dated 7 February 2010 on behalf of the applicant. He consulted a number of formal records including papers in the Australian War Memorial, as well as a book entitled “The Vung Tau Ferry”, which was authored by Rodney Nott and Noel Payne. He noted the latter source distinguished the experience of those who served below the deck in the ship and those who served above the deck, with those serving below the deck reporting that they had suffered disorientation and fright and some even became physically sick or had psychological or emotional illnesses. Dr Palazzo said that there was no doubt scare charges were employed but that the Captain of the ship chose not to record it.
14. Under cross-examination, Dr Palazzo admitted that his report contained an error about the date of HMAS Sydney arriving in Vung Tau Harbour on the occasion which Mr Allen was on board. He admitted he did not research the logs maintained for that voyage but only looked at the report of proceedings. In relation to the account given in The Vung Tau Ferry, he was asked whether he regarded those accounts as authentic. He said “They read true to me – they sound true to me”. Asked about whether he had spoken to anybody who had served on HMAS Sydney he responded “No, no”.
15. Nevertheless, he said that he was convinced that small boats around HMAS Sydney did drop scare charges and that they were dropped closer to HMAS Sydney than some hundreds of metres away by the cutter boats. He suggested that that would have included the dropping of such charges over the side of the ship. However, he acknowledged that he had not come across references of scare charges being dropped directly from HMAS Sydney.
16. The respondent then opened its case. There were three naval witnesses who presented evidence for the respondent and these are summarised below.
Commander Derek Caton
17. Commander Caton served on board HMAS Sydney on multiple occasions and in particular served as the assistant navigation officer between October 1970 and March 1971. He was therefore on board the same voyager as Mr Allen. He gave evidence that scare charges would have been dropped from cutters at a distance of some 300 to 500 yards from HMAS Sydney. He said that the workers on the cutters would have been directed by an officer of the bridge action team. He disputed however charges being dropped directly from the ship as he said that would put the ship in danger and that they would only ever be dropped over the side of the ship if it was moving. In relation to the noise of scare charges, he said he had experienced that noise many times. The noise was like a heavy door slamming shut; it was experienced as a dull thud if one was on the bridge of the ship but would be very very loud below the water line.
18. He was referred also to an operational order which provided for scare charges being used directly from the ship. Commander Caton accepted that that was a possibility but he said it would occur “in extremis of course”. In relation to whether sailors on the ship would have been given advance warning that scare charges would be detonated, Commander Caton said that orders would have been given over the Tannoy system. He reiterated in further questioning about the possible use of scare charges over the side of the ship or while it was stationary, and said “That would have been a consideration”.
19. In relation to the Report of Proceedings, it was suggested to him in cross‑examination that the use of scare charges over the side of the ship might have been so routine that such matters would not have got reported in the report of proceedings. Commander Caton would not accept that proposition. He said that while it may have been possible it would be a “last ditch, sort of, effort – last line of defence is probably a better word”. He said he had no recollection of that ever happening in his experience.
20. Commander Caton also described the reporting practices and that there was also a log written up progressively about issues that occurred on the ship. From the log, a report of proceedings was written up at the end of each month although he said a draft report of proceedings was usually prepared contemporaneously.
21. In relation to whether a sentry would open fire, he commented that even if action was taken by a sentry and he opened fire, the readiness state would have been altered almost immediately. If there was firing over the side of the ship, Commander Caton said he would be most surprised if such an incident was not reported. If scare charges were thrown over the side of the ship at anchor, it would most “definitely” be recorded in the formal log and report of proceedings.
Lieutenant Commander Gardiner
22. Lieutenant Commander Gardiner served on HMAS Sydney in 1970 and 1971 and was also on board HMAS Sydney at the relevant time. Lieutenant Commander Gardiner advised that he had an engineering degree and worked in the engine room for approximately eight hours a day. He described the engine room as having a door which is secured by two clips and with one handle which would release both of the clips. He was also asked about the Tannoy system. Lieutenant Commander Gardiner merely stated that it is unlikely that somebody would have heard any such announcements because of the background noise.
23. In relation to the noise of the scare charges, Lieutenant Commander Gardiner described these as being like “a bang and that there would have been a little bit of reverberation”. He put his perception in context. He said that he would then have been 30 years of age, had an engineering degree and some practical experience in the engine room. His evidence was that the noise was “pretty sharp and violent” but he said it “wasn’t hugely deafening”. In response to the applicant’s evidence that the noise was like a boiler exploding, he said “I suspect Mr Allen hasn’t heard one explode. I certainly haven’t”. He described the noise probably like a double barrel shotgun at the very most. However, he noted that the noise would have been distinguishable above the background noise of the engine room and said that he had heard enough scare charges that they would have “interrupted my life sufficiently – but I didn’t rush around to see whether the boiler had exploded”.
24. As Lieutenant Commander Gardiner was an officer employed in the engine room at the time of the incident, he was asked whether he recalled any incident where a sailor had soiled his pants as a result of hearing scare charges. He commented that if that had been the case, there would have been some gossip and perhaps hilarity but he categorically stated “I have no recollection of that”.
Commander Fitzgerald
25. Commander Fitzgerald was also on board HMAS Sydney in the period in question. He described the use of scare charges as being preceded by an announcement over the Tannoy system. However, he said that in the engine room, such an announcement “might not have been heard”.
26. In relation to the noise of scare charges, he said that the noise could be quite loud below the decks. Commander Fitzgerald’s experience was of using scare charges from a Gemini boat circling around the HMAS Sydney while it was stationary in the harbour. He said that any scare charges which would have been left by the time HMAS Sydney pulled out of the harbour, would have been thrown over one side of the ship, but only after they were underway and the ship was moving.
27. In relation to the firing of SLRs, Commander Fitzgerald said that they were generally not regarded as serious matters. He said there were a lot of incidents at that time but most of them were not serious and might not have been the subject of formal reporting.
Documentary Evidence
28. The Tribunal had the report of Writeway Research Services Pty Ltd dated 8 June 2004 prepared by Captain John Hewitt. There was also a subsequent report of Writeway Research Services Pty Ltd prepared by Commander P M Mulcare dated 20 May 2010.
Medical Evidence
29. No medical witnesses were called to give evidence at the hearing. However, a number of expert opinions of psychiatrists were on the record.
30. The relevant parts of these are referred to under “Consideration” below for convenience.
CONSIDERATION
31. I have considered all of the evidence presented, oral and documentary, in reaching a determination in this matter.
32. The claims made must be assessed according to the relevant statutory provisions of the Veterans’ Entitlements Act 1986 (Cth) and related Statements of Principles authorised under the auspices of that Act (s 120A and s 120B).
Onus and Standard of Proof
33. Section 120(6) provides that neither the applicant nor the respondent bears “any onus of proving any matter that is, or might be, relevant to the determination of a claim or application.” This however must be read in the context of s 120(1) and (3). The Commission (and this Tribunal undertaking a de novo hearing) must find in favour of the applicant that a condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). That is the standard of proof required. Section 120(3) provides the standard of proof will be met if the material does not raise a reasonable hypothesis which forms a connection between an injury or disease and an applicant’s war service.
34. The standard of proof relating to any issue other than the ultimate issues of whether an injury was war-caused, that is, any other or collateral issues, must be determined according to the standard of “reasonable satisfaction”. This has been held not to be:
… a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.[1]
[1] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
35. That description coincides with the terms adopted in s 140 of the Evidence Act 1995 (Cth) which defined that standard of proof as being “on the balance of probabilities” (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-172).
What Statements of Principle are relevant?
36. In respect of the two issues for determination, the decision under review deals with the medical conditions of anxiety disorder and alcohol abuse. Anxiety Disorder is dealt with in SoP No. 101 of 2007. In respect of the condition of Alcohol Abuse, this is provided for in SoP No. 1 of 2009 “Alcohol Dependence and Alcohol Abuse”.
37. In relation to Anxiety Disorder, this condition is defined to include generalised anxiety disorder, anxiety disorder due to a general medical condition or anxiety disorder (not otherwise specified) (paragraph 3 of SoP). To satisfy the connection between this condition and war service, that is, to the standard of a reasonable hypothesis, a factor must exist, as a minimum, which relevantly must be:
SoP No 101 of 2007: Anxiety Disorder
Factors
6....
(a) …
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or
(vi)having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; or
38. Stressors are defined in paragraph 9 of the same SoP as follows:
Other definitions
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
39. In respect of the condition of alcohol dependence or alcohol abuse (SoP No. 1 of 2009), the same factors and definitions are applicable as for SoP No. 101 of 2007.
40. I have also reviewed the definition for a category 2 stressor but I find the life events mentioned there are too remote from the incidents raised by the applicant.
The Medical Evidence
41. There were four psychiatrists’ reports from 1973 to 2007 tendered into evidence. The first report was provided by a Dr Rowe dated 28 May 1973. That report related to an incident where the applicant had been charged with a service offence of striking an officer in a hotel whilst not on duty. Mr Allen was to be court martialled for this alleged offence and a psychiatric report was requested. Dr Rowe concluded that there was no evidence of psychiatric illness which mitigated the seriousness of the offence for Mr Allen. He was then almost 20 years of age. Dr Rowe indicated that Mr Allen told him of a serious family problem. The notes on file prepared by Dr Rowe show that Mr Allen had a traumatic relationship with his mother who was described as “a jealous, suspicious woman who has never been able to relate to him”.
42. The next report is by Dr Kann dated 10 April 2003. He had met the veteran on four occasions before he provided his report. Dr Kann referred to the fibrotic lung condition which Mr Allen has and said that this condition preceded the development of anxiety and depression. He noted that Mr Allen had denied any previous episodes of significant anxiety or depression and had not previously had any professional treatment for psychological or psychiatric symptoms. He noted Mr Allen had a brother who suffered PTSD from serving in South Vietnam but in any case, diagnosed Mr Allen’s condition as being primarily due to the fibrotic lung condition. He then requested the Department of Veterans’ Affairs to seek an independent psychiatric opinion as he had by that time formed a working relationship as the treating psychiatrist. He described Mr Allen’s account to him of “his premorbid personality as ‘I’m a doer’, ‘a bit fiery’, and ‘usually strong, fit and healthy’”. He also noted that there was no evidence of perceptual disturbance, delusional beliefs, or obsessions or compulsive behaviour (Exhibit 1, T4/19).
43. Dr Gibson provided four reports. To of these are of specific relevance. The first of these was dated 3 December 2003 and described the applicant’s marital relationships. He also said that Mr Allen had described feelings of claustrophobia in his bed space on the ship which reminded him of the engine room. It is noted that he gave contrary evidence at the hearing. He told Dr Kann of 10 seamen firing SLRs (although it was noted at the hearing that the operational order in the T documents indicated there would be two sentries issued with SLRs). He also told Dr Gibson that when he heard the scare charge “he hit the deck”. While he consistently referred to that at the Tribunal hearing, there was no mention of soiling himself as was the description of the incident given to the Tribunal.
44. Dr Gibson provided a further report dated 25 February 2005 in which he diagnosed Mr Allen with dysthymia, secondary to chronic pain, generalised anxiety disorder and co-morbid alcohol abuse. That report was considered by the Veterans’ Review Board as part of the decision under review.
45. There was a further report by another psychiatrist, Dr Phillip Morris dated 18 September 2007. Dr Morris said that the applicant did not have PTSD as certain symptoms were missing which would require such a diagnosis. He also did not consider Mr Allen to have experienced a “severe stressor” whilst in Vietnam.
Diagnosis
46. The diagnoses are:
(a)1973 - Dr Rowe. Dr Rowe provided no psychiatric diagnosis but noted some relationship difficulties.
(b)2003 – Dr Kann. Dr Kann diagnosed an adjustment disorder with mixed anxiety and depressed mood.
(c)8 October 2003 – Dr Kann. This time the applicant received a diagnosis of adjustment disorder with mixed anxiety and depressed mood. A further report was provided by Dr Kann on 8 October 2003. Dr Kann said that he had then developed considerable rapport with Mr Allen as the treating psychiatrist and recommended that another psychiatrist be asked to give an independent report on Mr Allen.
(d)This resulted in Dr Gibson providing a report in December 2003 where Dr Gibson initially diagnosed PTSD and alcohol abuse but clearly thought a more valid diagnosis might be made if Mr Allen firstly had a period of detoxification. He subsequently provided a further report dated 25 February 2005 where his diagnosis was then modified to generalised anxiety disorder and alcohol abuse.
(e)Finally, a report was provided by Dr Phillip Morris dated 18 September 2007 wherein he diagnosed anxiety disorder, not otherwise specified and alcohol dependence.
47. I find the opinions of Dr Kann and Dr Morris are to be preferred as they are more recent and not affected by any possible issue of objectivity. As some of the previous anti-social behaviour which was evident in the earlier part of Mr Allen’s life has now dissipated, I find that the appropriate diagnoses are those provided by Dr Morris of Anxiety Disorder (Not Otherwise Specified) and Alcohol Dependence.
Clinical Onset
48. The relevant stressor must occur before clinical onset can be determined. There was no diagnosis of any psychiatric disorder identified in 1973 and therefore I accept that no clinically significant condition existed at the time of or preceding the incidents which are claimed.
49. However, clinical onset can be recognised for either condition for a period of up to five years from the date of the alleged incidents in February 1971. However, no further report indicating any psychiatric condition has been provided before 2003 and there is no indication that any such condition had onset at any time within five years of February 1971. While there was evidence of some aberrant behaviour in the applicant’s early naval service and particularly in the period following his Vietnam service, there is the report of Dr Rowe indicating that he was unsettled because of family factors. Also, Dr Kann regarded the psychiatric condition to be consequential to the development of the lung condition - a much later development. Dr Gibson referred to scare charges but did not reference this to a particular date or event. The report by Dr Morris says expressly that Mr Allen did not experience a “severe stressor” and relates alcohol dependence to the stresses of military life but in any event, he concludes that the psychiatric condition developed after his Vietnam service and then continued throughout the remainder of his life.
50. Therefore, the applicant does not have a psychiatric condition which has a clinical onset within five years after the date of the incidents on 21 February 1971.
Does the evidence satisfy the criteria in the SoPs?
51. The hypothesis based on the whole of the material must be considered using the authority of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. There, there were four steps to be satisfied. These are:
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 s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. [this is now accepted as partially inaccurate; see the discussion of Gosewinckel below.]
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 s196B(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 s120(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.”
52. In relation to Step 1 of the Deledio process, the applicant’s case raises a hypothesis which could connect his present conditions with his service in the RAN. Step 1 is therefore satisfied.
53. In relation to Step 2 of the Deledio process, two SoPs exist which are relevant to the conditions which have been diagnosed for Mr Allen. Step 2 therefore is also satisfied.
54. Step 3 of the Deledio process must determine whether the hypothesis raised in Step 1 is a reasonable hypothesis. The incidents described by the applicant must, in terms of the relevant legal provisions, be more than “a mere possibility”[2]. The hypothesis may be a mere possibility but may nevertheless raise a reasonable hypothesis if, for example, a medical practitioner’s opinion is supportive of the applicant’s claim. But there must be some material which “points to supporting the hypothesis”[3].
[2] Cooke v Repatriation Commission (1997) 45 ALD 205
[3] Bushell v Repatriation Commission (1992) 175 CLR 408 at 414
55. Whether a hypothesis is reasonable is a question of fact[4]. To be more than a ‘mere possibility’ the Full Court of the Federal Court has held that it should be “not obviously fanciful”, “not impossible”, “not incredible”, “tenable”, “not too remote” and “not too tenuous” in order for it to be reasonable.[5]
[4] Repatriation Commission v Bey (1997) 149 ALR 721
[5] Bull v Repatriation Commission (2001) 66 ALD 271
56. The tests under the current SoPs (No. 101 of 2007 and No. 1 of 2009) require for present purposes, the experiencing of a category 1A stressor or category 1B stressor. This requires “experiencing” an incident or event which is described as a “severe traumatic event” and is defined to mean “a life threatening event”; “being subject to a serious physical attack or assault”; “being threatened with a weapon”; and these definitions are explanations of a severe traumatic event. The definitions use the word “means” and are not to be regarded as a definition of broader construction as terms such as “include” are not used. This is more narrow than the former SoP which involves experiencing “a severe psycho-social stressor within two years of clinical onset of anxiety disorder”. A severe psycho-social stressor is defined as meaning an identifiable occurrence that evokes feelings of substantial distress” and that broader definition is used in conjunction with similar examples such as being shot at, death or serious injury.
57. While the current SoPs somewhat narrow the scope of application to a hypothesis raised in the applicant’s circumstances, and which do not in fact experience a life threatening event, it therefore is not a severe traumatic event within the definition of a category 1A stressor.
58. Similarly, I cannot find the circumstances of the applicant relevant to a category 1B stressor.
59. I cannot find that a reasonable hypothesis is therefore raised within the terms of the current SoPs for either anxiety disorder or alcohol dependence (given that the definitions in the current SoPs are in the same terms and the incidents on which the applicant relies relate to the same medical psychiatric conditions).
60. The applicant does however, have a right to have his claim reconsidered under the former SoPs (see SoP No. 1 of 2000 and SoP No. 76 of 1998). The application of the former SoPs is however different. The definitions in the former SoPs refer to “an identifiable occurrence”. As the respondent includes in its submissions, the examples in the SoP are of “identifiable occurrences” and not of “substantial distress”.[6]
[6] White v Repatriation Commission [2004] FCA 633
61. Both the applicant’s submission and the respondent’s submissions urge on me the relevance of the application to principles in Repatriation Commission v Stoddart [2003] FCAFA 300. In that case, the Full Court affirmed the approach of Mansfield J at first instance in that case and was a case like the present one, involving a stoker in the mechanical engineering service of the RAN while on operational service. In affirming the earlier decision of Repatriation Commission v Stoddart [2003] FCAFA 300, the Full Court noted that case followed the precedent of the Full Court of the Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160. The Full Court in Stoddart refers to the breadth of the threat required under the earlier SoPs. It contemplated an actual threat but also extended to a person being confronted with an event which, when looked at objectively from the perspective of a reasonable person in the position of the applicant, was capable of concluding that he did in fact, subjectively, experience “the event as a real risk of death or serious injury”.
62. In relation to how real the risk of death or serious injury was, the Full Court said that the threat must be regarded according to the dictionary definition of that term as meaning “an indication of probable evil to come; something that gives indication of causing evil” (at [32]). The assessment of the risk is a contextual one and involves, in particular, the gravity of the risk.
63. Counsel for the applicant submitted that “the knowledge and circumstances” of Mr Allen at the time of the incidents reveals that he:
· Was 17 years of age;
· Had never been to sea before;
· Had not received any briefings from the Navy regarding what to expect while in Vung Tau harbour;
· Was working in an enclosed, hot and noisy compartment, below the waterline; and,
· Did not know what a ‘scare charge’ was, before hearing one explode underwater outside the ship’s haul.
64. On the basis of those submissions by the applicant’s counsel, and taking account of the scope set out by the Full Court of the Federal Court in Stoddart, the Tribunal accepts that prima facie, a reasonable hypothesis exists to regard the incidents raised as connecting Mr Allen’s conditions of anxiety disorder (not otherwise specified) and alcohol dependence with his operational service. Section 120(3) requires determination after consideration of “the whole of the material”. The prima facie case which is made out by the applicant is contested by the respondent through the evidence of the respondent’s witnesses Commander Caton, Lieutenant Commander Gardiner and Commander Fitzgerald.
65. In relation to the incident of firing SLRs from the flight deck, Commander Caton denied any personal recollection of such an event as stated by the applicant.
66. The respondent’s case is that scare charges as claimed in the applicant’s hypothesis would not have been used close to HMAS Sydney but only by cutters and Geminis circling HMAS Sydney. The evidence of Commander Caton who actually served on HMAS Sydney at that time said that scare charge would not be thrown from the ship except as a “last line of defence” and in any event only on instruction from the bridge. The rationale for his evidence was that they would not be thrown from the ship while stationary and that a cutter boat would be sent out to investigate any suspicious circumstance in the first instance. He said he had no recollection of scare charges being thrown directly from HMAS Sydney while stationary and even if they had been, it would immediately heighten the degree of readiness of the ship and would almost invariably justify recording that event in the ship’s report of proceedings. There is no report of such an occurrence in the report of proceedings for that voyage to Vung Tau harbour although he noted that if after the event it turned out to be nothing of significance, then it would be a matter of discretion whether the Captain included reference to it in the report of proceedings. Likewise, Commander Fitzgerald, the diving officer, confirmed that scare charges would not be thrown overboard while the ship was at anchor but only when it was actually leaving the harbour. His evidence was that that circumstance would only occur in an ”emergency”.
67. It must be said that the applicant also relies on the evidence of those witnesses. The applicant’s case emphasises different dimensions of the evidence and seeks to rely, in particular, on the evidence of Lieutenant Commander Gardiner. He was an experienced engineer both by qualifications and experience and would have been approximately 30 years of age at the time whereas the applicant was only 17½ years of age. Lieutenant Commander Gardiner described the sound of a scare charge in the engine room as being a sharp noise and the applicant submits the evidence showed that very junior sailors were under trained, under skilled and not well informed about matters on the ship generally. It was submitted that the evidence of Lieutenant Commander Gardiner was that stokers did not receive a briefing about things such as scare charges.
68. The applicant’s submissions also included that Commander Fitzgerald referred to scare charges in his evidence and submitted that the “picture painted … of the use of scare charges was one of prolific use”; that “we put them over the side often [just] to see what happened”; and that sentries with SLRs could “fire independently”.
69. Assessing those submissions and looking at the evidence as a whole, it is the character or context of the evidence which is important, (see Mansfield J in Stoddart v Repatriation Commission [2003] FCAFA 300 at 50). The context of all of the evidence must also take account of the fact that while Mr Allen was 17½ years of age and a very young and unqualified sailor, he had been in the navy for one and a half years and it could be said that there must have been at least some general awareness of the navy “environment”. The context raised in one of the reports by Writeway Research Services Pty Ltd is that by February 1971, HMAS Sydney was commonly called the “Vung Tau ferry” and regularly made trips taking troops to Vietnam and back to Australia. Writeway Research Services Pty Ltd reported that in all likelihood there would have been some briefings on the way over to Vietnam. That of course, must be put into context with the evidence of Lieutenant Commander Gardiner who reported that sailors were generally under trained. The incidents must also be put in the context that the applicant’s case involves having spoken to some sailors early that morning and subsequently there was much activity while 500 officers and soldiers of 3RAR disembarked HMAS Sydney together with the unloading of the battalion’s equipment. Later, 7RAR was loaded onto HMAS Sydney by Chinook helicopters. The incidents raised by the applicant have occurred in the context of that background.
70. Looking at those issues as a whole it seems to me that the prima facie case of the applicant’s hypothesis is outweighed in context and in substance, by the scenario painted by the specific and experienced former officers of the RAN. This takes account not only of an objective assessment of the circumstances but also a likely subjective assessment of a reasonable person in the position of Mr Allen and the likelihood of the connection being raised between his present conditions and his former naval service.
71. The incidents claimed by the applicant must be seen in the context that he was in Vung Tau Harbour for eight hours. Mr Allen’s evidence was that he had spoken to sailors who had been to Vietnam previously and he then thought that being on HMAS Sydney meant that he was “invincible”. His case is then, within a couple of hours of that time, that one scare charge reduced him to a physical and emotional wreck. He claims to have lost bowel control. In evaluating the scenario put by the applicant and supported witnesses and the evidence of the respondent’s witnesses, the Tribunal finds that the supporting evidence of the three officers who were called by the respondent and who had served on HMAS Sydney at the same time as Mr Allen were more credible, consistent and had more substantive explanations than the witnesses presented for the applicant’s case.
72. The Tribunal accepts as a fact that scare charges were used based on the standard of reasonable satisfaction, even though some of the witnesses had some variability in their experience or recollection about the extent of practices on HMAS Sydney.
73. I therefore find that Step 3 of the Deledio process is not satisfied.
74. Despite my finding in relation to Step 3, I nevertheless consider, for completeness Step 4 of the Deledio process to give some reliability and validity to the finding of Step 3 above. Step 4 is an assessment of the factual evidence.
75. Commander Scown’s evidence was less specific than that of Commander Caton, Lieutenant Commander Gardiner and Commander Fitzgerald. I also found Dr Palazzo’s evidence less reliable in some respects, particularly in his conclusions which were based on the work “The Vung Tau Ferry” when he regarded parts of the accounts given in that book as authentic on the basis that “they read true” or “they sounded true” to him.
76. His conclusion that scare charges were dropped directly from HMAS Sydney was not based on any factual evidence but rather, it was based on speculative inference. The respondent’s witnesses however provided a logical reason why scare charges would not be thrown directly from the ship except when it was moving, and no other direct evidence was offered in contradiction. The weight of evidence of the respondent’s witnesses, individually and collectively, was much greater.
77. In relation to the medical evidence, I accept the evidence of Dr Gibson and Dr Morris in preference to that of Dr Kann. I accept also the evidence of Dr Rowe in 1973 that Mr Allen had revealed some emotional difficulties with his mother and that undoubtedly would have been an unsettling period for a young man of 17½ years of age.
78. There are some other aspects of the applicant’s evidence which I regarded as relevant but which made his account less reliable. These are:
· His account of the day’s events of 21 February 1971 seemed that he recovered relatively quickly and he ultimately returned to work that afternoon. His accounts have not been altogether consistent in their sequence or in his roles on that day.
· His evidence of challenging (and even assaulting) an officer at HMAS Cerberus that he would not serve below the water line but serve above the water line had an air of inconsistency given his claim of the degree of trauma caused by the scare charges.
· He seems to have had a troublesome life with his mother. His serving a six month period of imprisonment at Holsworthy for service disciplinary offences may have been contributed to by his Vietnam Service but cannot be said to be attributable to that service alone.
· His evidence in answering questions was often indirect. He admitted to some of his evidence was based on hearsay. He did however, on being pressed about the incident of the cutter boat being caught on the anchor rope of HMAS Sydney, state that “I definitely saw that”. But there are other aspects of the evidence of 21 February 1971 which are conflicting, for example, he went back to work that afternoon despite being told he was to go to bed.
· The practice of preparing the ship’s log and report of proceedings progressively is accepted as being accurate on the balance of probabilities.
· Mr Allen’s explanation of having soiled his overalls is, in light of the evidence of Lieutenant Commander Gardiner, “untenable”.
· Dr Kann’s report of 10 April 2003 refers to their being no evidence of perceptual disturbances, delusional beliefs, obsessions or compulsive behaviour. Dr Kann also reported that Mr Allen denied any past episodes of significant anxiety and depression and had not previously consulted a professional in relation to psychological or psychiatric symptoms.
· Mr Allen’s memory is by his own admission, a bit vague.
· Mr Allen had described to Dr Kann, feelings of claustrophobia (report of 10 April 2003). However, he told this Tribunal that he had never had feelings of claustrophobia.[7]
[7] Transcript 26 May 2010, page 13 – line 43.
79. I cannot find any facts which satisfy the definition of a category 1A stressor or category 1B stressor from the scenario presented by Mr Allen. Even if the description of the incidents could be found to come within those definitions, considering the evidence as a whole, I have formed the view that the respondent’s evidence has demonstrated beyond reasonable doubt that it outweighs and has significantly greater probative force than the applicant’s case.
80. I have found similarly in respect of the requirements of the two former SoPs (which is the residual right that the applicant has for further consideration). I so find in particular because of inconsistencies in the applicant’s evidence as well as the weight of evidence that in my view must be accorded to the evidence of Commander Caton, Lieutenant Commander Gardiner and Commander Fitzgerald. While the applicant’s case relies also on the evidence of those three former officers, I am not satisfied that the facts relied upon by Mr Allen provide a full account or place the evidence in proper context.
81. In relation to the applicant’s evidence there are a number of inconsistencies between his first statement of 16 June 2003, his second statement of 23 March 2010 and his oral evidence given to this Tribunal. While the applicant himself concedes that his memory of events is not altogether complete, the inconsistencies however taken as a whole, are not insignificant. These are:
(1)The applicant has claimed to have been in Vung Tau harbour for 48 hours. He was in fact only there for 8 hours. Such a discrepancy would not be expected in the ordinary course of events and is clearly an exaggeration.
(2)The applicant described the sound of the scare charge as if the boiler had exploded when standing beside it. Commander Caton and Lieutenant Commander Gardiner put a more balanced perspective although it must be acknowledged that Mr Allen, given his age and experience, is likely to have been more affected by the noise than those more experienced officers, but not to the extent claimed by Mr Allen.
(3) The applicant’s statement issued in 2003 noted one scare charge and indicated that he “almost had to change my pants”. In the applicant’s statement dated 23 March 2010, some seven years later he then says that when the scare charge was heard, he was so frightened that he soiled his pants. He was then taken so he could have a change of clothes and then went on to the flight deck for a smoke. While there, he apparently heard a whistle blown, followed by sentries firing SLRs. That incident, the applicant says resulted in him, “hitting the deck” and soiling his pants a second time. In that statement he then says in chronology, that he was helped back down to his workplace and worked on until the next scare charge when he was reassured by his workmates that he was not in any danger again. He was not fit to continue apparently and was told to go to bed. He said he later came out when it was all quiet and there was no noise on the ship.
(4)Following on in chronology from hearing sentries fire into the water, he was then apparently ordered to go to bed as he would be “no good for duty for the rest of the day.” But in his oral evidence it seems that some time after that he went to the flight deck and observed a cutter being caught on the anchor rope. That had not been mentioned previously. He also said that later that afternoon he went to the engine room to undertake a shift in place of the sailor who had stood in for him that morning. That also was not mentioned earlier.
Contrary to this evidence, Commander Caton gave evidence that such action would be under the control of the bridge action team and he denied any personal recollection of such firing.
(5)In relation to the assertion by the applicant that he had soiled his pants twice, Lieutenant Commander Gardiner who worked in the engine room during that trip gave evidence that he would have expected some report to have been made to an Officer or Senior Non Commissioned Officer working in the engine room. He said he would have expected if that had occurred, that it would have been sufficiently exceptional that it would have been subject to some “gossip” or “some hilarity”. He then said “I have no recollection of that”.
82. The applicant’s evidence is therefore subject to some questions of credibility when taken wholly in context. The differences in the evidence cannot be accounted for merely by some lapses of memory on behalf of the applicant.
83. The countervailing evidence by Dr Palazzo for the applicant, does seem to be subject to hearsay, and although Dr Palazzo could be regarded as a professional witness giving an opinion, it is not direct evidence (compared with that of the former RAN officers for the respondent) and his professional opinion is based on records, some of which cannot be authenticated. He also seems to have speculated or drawn inferences from those records which could not be said to be drawn directly from admissible evidence.
84. On consideration of all of the material, I find that there is no sufficient ground for determining that Mr Allen’s conditions are war caused. I therefore affirm the decision under review.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed: .........................[Sgd]..................................................
Kate Slack, Research AssociateDate/s of Hearing 16 October 2009; 26 and 27 May and
2 June 2010
Date of Decision 29 October 2010
Counsel for the Applicant Mr McLean-Williams
Solicitor for the Applicant Mr Terence O'Connor
Solicitor for the Respondent Mr Bruce Williams, departmental advocate
0
14
0