Warhurst and Repatriation Commission - [2001] AATA 585

DECISION AND REASONS FOR DECISION [2001] AATA 585

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/648

VETERANS'    APPEALS    DIVISION         )
           Re      RONALD WILLIAM WARHURST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Date26 June 2001
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – lumbar spondylosis – alcohol abuse – hypertension – whether war-caused – decision affirmed.
Words and Phrases
Veterans' Entitlements Act 1986, ss. 9. 120, 120A, 126, 196B
Statements of Principles Instrument Nos. 27 of 1999 (Lumbar Spondylosis); 76 of 1998 (Alcohol Abuse); 25 of 1999 (Hypertension).
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Bey (1997) 149 ALR 721

REASONS FOR DECISION

26 June 2001 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Introduction

Mr Ronald William Warhurst, the applicant in these proceedings, made a claim to have the following disabilities accepted as war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"):
·     Lumbar Spondylosis
·     Hypertension
·     Alcohol Abuse
·     Generalised Anxiety Disorder (claimed as "Stress and Anxiety")
On 11 May 1999 the respondent refused the claim in respect of these disabilities.
On 10 August 1999, Mr Warhurst applied to the Veterans' Review Board ("the VRB") for review of the decision of the respondent.
On 2 May 2000 the VRB made a decision which was expressed as follows:

to affirm the decision under review in relation to the claim for back problem (diagnosed as lumbar spondylosis), hypertension and alcohol abuse. This means that the Repatriation Commission's decision is unchanged in relation to those matters; and
to adjourn the hearing of the application in relation to the claim for stress and anxiety under section 152 of the Veterans' Entitlements Act 1986 pending further investigation in terms of the letter to the Secretary, Department of Veterans' Affairs, which is attached.

By virtue of the decision of the VRB, it follows that that part of the decision which relates to Generalised Anxiety Disorder ("stress and anxiety"), is not before this Tribunal for determination upon review.
Representation
At the hearing before this Tribunal Mr Warhurst was represented by Mr Chancellor, of Counsel. Mr Nyhof, an advocate with the Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. A number of other documents, to some of which it shall be necessary to refer, were also received in evidence during the hearing.
Witnesses
During the hearing evidence was given by:

Mr Warhurst;
Major J. Tilbrook, of Writeway Research Services, specialist in the researching of Defence war records;
Lieutenant Colonel D.S. Overstead, who was Mr Warhurst's Commanding Officer in Vietnam;
Major J. Watson and Warrant Officer I. Laurie, both of whom were members of the AFV Provost Unit at the time Mr Warhurst served in Vietnam;
Dr E.S. Cole, who practices as a Psychiatrist.

Facts Not In Dispute

It is not in dispute that Mr Warhurst:

was born on 31 July 1939;
served in the Australian Army from 28 February 1957 to 19 February 1960, and again from 8 August 1960 to 19 November 1970;
rendered eligible war-service (which is operational service) from 14 July 1961 to 27 May 1963 (Far East Strategic Reserve – Malaya) and from 11 June 1970 to 24 September 1970 in Vietnam;
suffers from Lumbar Spondylosis.

Standard of Proof

Sections 120(1) and 120(3) of the Act apply in respect of Mr Warhurst's operational service. Therefore the Tribunal is required to find that his claimed conditions are war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered.
Application of Statements of Principles ("SoP's")
Because Mr Warhurst's claim was lodged after 1 June 1994, the Tribunal is also required to apply section 120A of the Act in reaching its decision. This means that the Tribunal is required to assess the reasonableness of a hypothesis in accordance with any SoP's issued by the Repatriation Medical Authority ("RMA"), or any relevant determinations or declarations under the Act.
The RMA is an independent medical body that issues SoP's based on sound medical-scientific evidence. The SoP's set out the minimum factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death, and service. The SoP's are binding on decision-makers at all levels, including this Tribunal.
The RMA has formulated Statements of Principles in respect of lumbar spondylosis (Instrument No. 27 of 1999), and in respect of Alcohol Dependence or Alcohol Abuse (Instrument No. 76 of 1998).
Factors Relied Upon
In respect of his claim for lumbar spondylosis, Mr Warhurst relies upon the factor set out in paragraph 5(h) of Instrument No. 27 of 1999:
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis."
It is noted that the SoP states that:
" 'trauma to the lumbar spine' means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)       immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)       injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)       surgery to the lumbar spine."
In respect of his claim for alcohol abuse, Mr Warhurst relies upon the factors set out in paragraph 5(a) and (b) of Instrument No. 76 of 1998:
"(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse."
Instrument No. 76 of 1998 states that:
" 'alcohol dependence' means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol."

The Instrument further provides that:

" 'experiencing a severe stressor' means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence."

Causation Issues

The Act provides that a veteran's disease or injury is war-caused if it, in effect:

resulted from an occurrence on operational service;
arose out of or was attributable to eligible war service;
resulted from an accident while travelling to or from duty;
was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or
was contributed to in a material degree or aggravated by eligible war service.

At the commencement of the hearing Mr Chancellor observed that the RMA has formulated a SoP for hypertension (Instrument No. 25 of 1999), and that it seems clear that, provided alcohol abuse or dependence is accepted as war-caused, it follows that the SoP for hypertension is also met. In this connection the Tribunal notes that in making his observation Mr Chancellor relies upon the factor set out in paragraph 5(b) of Instrument No. 25 of 1999:
"suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension."

Application of SoP's – Methodology

In Repatriation Commission v Deledio (1998) 49 ALD 193, the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case such as the present (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
1.The Tribunal must consider all of 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 veteran. No question of fact finding arises at this stage …
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 then 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."

Contentions – Mr Warhurst

In both a statement of facts and contentions lodged with the Tribunal prior to the commencement of the hearing, and also during the course of his evidence, Mr Warhurst made a number of contentions which he asserted were relevant to and supported his claim.
Contention No. 1
Mr Warhurst stated that he was involved in three motor vehicle accidents, one in Australia in early 1961 and two in Malaya when he was serving with 908 COMWEL SIG SQN, one in late 1961 in which he was apparently not injured and another in September 1962 when he sustained a back injury when thrown from a truck when it landed on its bonnet after rolling into a monsoon drain.
Mr Warhurst asserted that a 1 ton military truck driven by SIG R.G. Watts, which was returning from Seremban, was involved in a collision with a civilian car travelling in the opposite direction, resulting in the truck tipping into an 8 foot deep monsoon drain. Mr Warhurst stated that he was a passenger inside the cabin of the truck and that, because the vehicle was not fitted with seat belts, he was ejected through the passenger's door, landing on his back on the embankment, suffering cuts to his face and arms from glass, and bruising.
It was Mr Warhurst's evidence that the British Military Police quickly arrived at the scene and recovered the vehicle from the drain. He said that the vehicle sustained only superficial damage and was able to be driven back to the TERENDAK Camp.
Mr Warhurst further asserted that on arrival back in camp he reported to the British Regimental Medical Officer ("RMO") in the Regimental Aid Post ("RAP"), and that he was informed no bones were broken and that the pain in his back would go away.
Mr Warhurst claimed that the RMO placed him on light duties for 2 to 3 weeks and prescribed painkillers, but that his bruising and back pain persisted for several weeks.
Mr Warhurst contended that there is no record in his Service documents of this accident or his treatment for injuries sustained, as he believed that some of the records from his 208 COMWEL SIG SQN had been lost.
Contention No. 2
Mr Warhurst contended that when serving in Vietnam he underwent counselling with a Psychiatrist because he was experiencing severe stress, anxiety and depression due to his concerns regarding his (then) wife's infidelity; his children's welfare; the overall domestic circumstances and the difficulties of trying to keep his marriage together when on operations in another country. It was his assertion that he was sent home on a Ministerial posting and claims he does not know to this day the reason why. He stated that he elected to take discharge from the Army to try and save his marriage.
Contention No. 3
Mr Warhurst contended that when on operational service in Vietnam his unit had detachments everywhere and as the transport supervisor he had to check documentation. On one such occasion he was travelling by road from Saigon to Long Binh (but could not recall the name of the road). He saw six enemy heading across the road seconds before an American gunship that was chasing the enemy began firing and the road in front of them erupted. There was fighting everywhere and everyone was firing. Neither Mr Warhurst nor the corporal who was driving him was hit by the fire. They both jumped into a monsoon pit and started firing themselves. Their vehicle sustained a couple of hits but Mr Warhurst does not recall whether these hits occurred before or after they departed the vehicle. Mr Warhurst believes that their lives were in danger and they were lucky not to have been injured or killed.
Contention No. 4
It was Mr Warhurst's evidence that for some time he thought that the soldier who replaced him in Vietnam was subsequently killed during an ambush. He stated that he and his replacement had been good friends and that they had undergone most of their Army training together.
Mr Warhurst explained, however, that last year he was informed that his replacement had not died in action but apparently had returned to Australia and later died while in bed.
Contention No. 5
Mr Warhurst contended that while serving in Vietnam he was in a vehicle which was following a big Dump truck when a woman threw a baby under the Dump truck, squashing the baby under its front wheels.
Contention No. 6
Mr Warhurst's contention was that as a Senior NCO in Vietnam he was required to visit injured soldiers in hospital and write to their relatives in Australia. He said he found this to be distressing.
Contention No. 7
Mr Warhurst contended that while serving in Vietnam he visited HMAS JEPARIT in order to swap beer for eggs, and that while doing so he saw Armoured Personnel Carriers ("APC's") that had evidence of casualties in them.
Evidence – Major Tilbrook
Major Tilbrook is a former Australia Army Officer who specialises in the research of Defence war records ("Writeway Research Service"). He provided a detailed report (Exhibit R7) of research which he carried out in respect of each of the contentions upon which Mr Warhurst relies. The report, the contents of which were confirmed by Major Tilbrook during the course of oral evidence which he gave by telephone, is comprehensive and helpful to the proper determination of this matter.
In his report Major Tilbrook confirms that Mr Warhurst served in Malaya and Vietnam:
"6. Service in Malaya. According to the Veteran's AF B103 Record of Service provided at Reference B the (then) SIG R.W. Warhurst served in Malaya with the Australian component of the 208th COMMONWEALTH INFANTRY BRIGADE SIGNAL SQUADRON (208 COMWEL SIG SQN) from 13 Jul 61 to 12 Jul 63. The Veteran served with 208 COMWEL SIG SQN as a unit DRIVER ECN 302 which was stationed in the major British Army military camp at TERENDAK in the Malay state of MALACCA on the western coast of the Malay Peninsular. Competition in the Army in Australia for military service in Malaya was strong, as it was a popular posting for Australian soldiers. In the Veteran's case he was accompanied to Malaya by his wife and two children, and a third child was born during his service overseas. The Veteran and his family resided in an Army married quarter at TERANDAK."
7. Service in Vietnam. The Veteran's AF B103 Record of Service states that the (then) T/SGT R.W. Warhurst served in Vietnam from 11 Jun 70 to 24 Sep 70 as a SUPERVISER TRANSPORT (SPVR TPT) with 110th SIGNAL SQUADRON (110 SIG SQN) which was principally located inside of the 1 ALSG base at VUNG TAU. During his service in Vietnam the Veteran was promoted to substantive SGT wef 1 Sep 70 following which the Veteran was returned to Australia abruptly and prematurely after only 14 weeks service, having requested his own discharge from the Army on compassionate grounds."
In his report Major Tilbrook also recorded the role of 110 SIG SQN in Vietnam:
"8. 110 SIG SQN was a major communications unit and was deployed to Vietnam from 2 Mar 67 until 12 Mar 71. This non-combatant unit was commanded by a MAJ, and was principally located within the 1 ALSG base at VUNG TAU but was under the direct command and control of HQ AFV. The primary role of 110 SIG SQN in Vietnam was to provide the secure rear link voice and rear link data communications between HQ AFV at SAIGON with Defence CANBERRA and Defence Melbourne (as well as operating the intra-theatre secure Australian forces communications net between HQ AFV, HQ 1 ALSG and HQ 1 ATF).
9. Geographically 110 SIG SQN was principally located at VUNG TAU, with two forward detachments working in direct support of HQ AFV in SAIGON and HQ 1 ATF at NUI DAT. The detachment in SAIGON was commanded by a worn rank CAPT (in 1970 the appointment was filled by CAPT R.H. Baldwin)."

As to the nature of Mr Warhurst's employment while serving in Vietnam, Major Tilbrook reported as follows:
"11.     It was confirmed by the Veteran's unit OC in Vietnam (LTCOL Bill Overstead) that SGT Ronald Warhurst was employed in the non-combatant role of the unit transport supervisor (employed as posted). The unit's fleet of vehicles comprised ¾ Ton GS Landrovers, ¾ Ton FFR 24 volt Landrovers (fitted for radio), matching ½ Ton trailers and 5 Ton GS International Cargo Trucks.
12.      Unit transport was used to ferry stores within the 1 ALSG and general VUNG TAU area, and on occasions to the 110 SIG SQN detachments at NUI DAT and/or to fire support bases (FSBs) when HQ 1 ATF (FWD) was deployed on operations and 110 SIG SQN was tasked to install and operate the rear link force communications infrastructure.
13.      The 110 SIG SQN detachment in SAIGON had its own organic transport for local duty, therefore the employment of the Veteran (as a SNCO) on driving tasks outside of the 1 ALSG and VUNG TAU area would have been very much the exception. The transportation of general cargo and ammunition to 1 ATF units and to FSBs was the responsibility of 2 TPT PL and 86 TPT PL based at VUNG TAU that operated daily maintenance convoys (orchestrated by HQ 1 ALSG and HQ 5 COY RAASC). A dedicated transport unit, 85 TPT PL, which was commanded by HQ 26 COY RAASC, was permanently stationed at NUI DAT to provide direct transport support to 1 ATF units."
It is observed that in his report Major Tilbrook sets out the official and secondary sources which he used in researching the various contentions made by Mr Warhurst. The sources thus used are stated to be:
a.Research Centre, Australian War Memorial in Canberra for access to, and examination of, the unit war diaries for 110 SIG SQN in Vietnam for the period Jun 70 to Sep 70 in seeking any mention or record of the events now cited by the Veteran in his Contentions.
b.The Vietnam Incidents Database (based upon the HQ 1 ATF Daily SITREPS and HQ 1 ATF Daily INTSUMS) seeking any record of the notifiable incidents of Australian convoy vehicles being hit by enemy small arms fire, and of Australian drivers and 'shotgun' escorts being involved in a firefight with the enemy on main Route 15 between SAIGON and LONG BINH between Jun 70 and Sep 70 as has been cited by the Veteran in his Contention No. 3.
c.LTCOL D.S. Overstead, RA SIGS Retd. As a worn rank MAJ in Vietnam in 1970 LTCOL 'Bill' Overstead was the Veteran's unit OC. As such he was able to provide informed comment on the alleged stressors claimed by the Veteran during his service with 110 SIG SQN. The contact telephone for LTCOL Overstead is available to DVA Geelong upon request.
d.Central Army Records Office (CARO), Melbourne seeking verification from ex SGT R.W. Warhurst's service records file as to the circumstances behind the Veteran's short tenure in Vietnam and premature discharge from the Army on 19 Nov 70. Contact officer is SO1 CARO (Mr David Gibson) on telephone (03) 9282 5599.
e.LTCOL J.S. Tracey, RAASC & RACT Retd. As a worn rank LT in Vietnam in the period Jan 70 to Feb 71 LTCOL John Tracey was one of the transport officer in 86 TPT PL at VUNG TAU who commanded daily convoys from VUNG TAU to NUI DAT, elsewhere in the 1 ATF TAOR, as well as to the US Army logistics complex at LONG BINH. LTCOL Tracey was apprised of the daily road security assessments and enemy incidents for convoy routes, and was able to provide informed advice on the Veteran's Contentions No. 3, No. 4 and No. 5. Contact telephone for LTCOL Tracey in the Department of Defence in Canberra is (02) 6265 2252.
f.Vietnam War Casualty List and the Office of Australian War Graves database records on Vietnam fatal casualties seeking any reference to the alleged death of a 'Pat McCann' or any other RA SIGS soldier KIA in an ambush in 1970/71 (as cited by Mr R.W. Warhurst in his Contention No. 4).
Having concluded his research, Major Tilbrook made the following responses to each of Mr Warhurst's contentions:
Contention No. 1
"16.The Veteran's claim that he was injured in a military vehicle accident (that was involved in a collision with a civilian vehicle in Malaya in September 1962), and that all of the records that would have substantiated this event and his injury (i.e. both the AAF D11 Report of Injury and Army Form F MED 5 Attendance and Treatment medical documentation) was lost by his unit (908 COMWEL INF BDE SIG SQN) is difficult to comprehend because of the robust record keeping procedures that were in place in Malaya.
17.Under the British Army regime in Malaya during the decades of the 1950's and 1960's it was mandatory for all vehicle accidents involving military and civilian vehicles to be formally attended and investigated by the Military Police. This was followed by appointment of an investigating officer by the unit concerned, and the preparation and lodgment of an Investigating Officers (IO) Report to the higher formation headquarters (in the case of the Veteran's unit in Malaya this would have been HQ 28 COMWEL INF BDE). Details of any deaths or injuries sustained by military personnel or civilians, as well as damage caused to vehicles and property were all carefully documented for compensation purposes. Accepting that the military vehicle accident cited by the Veteran did take place in September 1962, it is expected that mention of such an event would appear in the HQ 28 COMWEL INF BDE records that are currently held by the Public Information Office (PO1) in London. Should DVA wish to pursue this line of enquiry with the PO1 London, such requests for Army records research should be lodged through the Army Historical Branch, in the Ministry of Defence (United Kingdom) in London on Fax 0015 4420 7218 0256.
18.In the event that an Australian soldier serving with one of 28 COMWEL INDEP INF BDE units in Malaya had received medial attention for an illness or injury at a British Army medical facility or hospital, such attendances would have been officially recorded through the generation of medical documentation.
19.The correct procedure for the reporting of an injury to Australian soldiers was the compilation of the form (AAF D11 – Report of Injury) which was then submitted to our Central Army Records Office (CARO) in Melbourne (through our HQ AAS FARELF office located in SINGAPORE). Copies of any medial documentation for the treatment of Australian soldiers at British Army medial units would also have been separately passed to CARO Melbourne (through the HQ AAS FARELF conduit) which in turn generated the raising of a Routine Order Part 2 recording the injury (e.g. INJURED on duty, TERANDAK Malaya and date) which was then entered into the respective soldiers AAB 83 Record of Service and AF B 103-2 Record of Service maintained by CARO.
20.Australian soldiers (and their accompanying families) that were resident in British army camps in Malaya were expected to attend medical parades at the allocated medial facilities that held their individual medical records (determined on a unit location basis). The exception to this rule being when soldiers were deployed away from their normal base, such as on jungle exercises or on anti-terrorist operations, which required immediate medical treatment at the nearest medical facility. The latter situation does not match the Veteran's circumstances described in his Contention. These British Army operated medical centres and the British Military Hospitals (BMH) were fully conversant with the compilation and routine processing of AF F MED 5 Attendance and Treatment documentation for soldiers, and in forwarding copies to both HQ AAS FARELF and the Army Medical Records Section in Melbourne.
21.The importance and sense of duty in recording the wounding, injury or ailments of service personnel engaged on operational service (for repatriation benefits) was realized by medical staff and the administrative headquarters (in this case HQ AAS FARELF in Singapore).
22.Against the above back ground, and given the duplication of the administrative and medical documentation processes leading to recording by CARO Melbourne on the respective soldiers AF B103-2 Record of Service, it would be remarkable if both types of records on the injuries to (the then) SIG Ronald Warhurst were lost; particularly given that 908 COMWEL INF BDE SIG SQN would not have had any responsibility for the processing medical documentation of unit members."
Contention No. 2
"23.The Veteran's claim that he was not aware of the reason why he was sent home early from Vietnam (or the basis of the Ministerial posting) is not consistent with official records provided by CARO Melbourne or the recollections of his unit OC in Vietnam (the MAJ D.S. Overstead).
24.CARO Melbourne advice is that the former 15762 SGT R.W. Warhurst, RA SIGS was returned to Australia on compassionate grounds. The reason for his early RTA was that SGT Warhurst had applied for his discharge from the Army at his own request. The cited reasons for his request for discharge from the Army were:
a.Domestic affairs of his family in Australia were causing him great concern; his wife was receiving medical treatment and was having trouble coping with three children whilst he was away.
b.Children's school education was suffering as a result of his wife's condition.
c.Stated he did not volunteer to go to Vietnam, his personal feels towards the Vietnam War were contrary to what the allied Army's were trying to achieve.
d.He felt that he might jeopardize the good name of his unit by his actions towards local Vietnamese people.
e.His attitude towards the Army had changed markedly for a variety of reasons.
25.CARO Melbourne confirmed that the Veteran was interviewed by his unit OC (MAJ Overstead) who confirmed SGT Warhurst's concerns and attitude, and requested that the Veteran be RTA at an early date (which led to the compassionate posting).
26.LTCOL Bill Overstead recalls his dealings with SGT Ronald Warhurst (who was in tears and clearly disturbed during interviews) and in light of his poor attitude it was unacceptable for him to continue as a SNCO in charge of subordinate soldiers in his unit.
27.Paragraph 57 of the extract from the 110 SIG SQN Monthly Report for September 1970 accompanying this Report as Attachment No. 1 records the premature RTA of SGT Warhurst for compassionate reasons."
Contention No. 3
"28.No evidence was found in official Army records to substantiate the type of vehicle ambush incident involving Australian vehicles and personnel (as cited by Mr Ronald Warhurst) during the period under review – being 11 Jun 70 to 24 Sep 70. Official records examined by the Researcher included the unit war diaries for 110 SIG SQN, HQ 1 ATF Daily SITREPS, HQ 1 ATF Daily INTSUMS and the electronic Vietnam Incidents Database.
29.The Veteran's unit OC in Vietnam, LTCOL Overstead, is adamant that during his period of command in 1970/71 none of his unit members or unit vehicles were fired upon by the enemy, and certainly no vehicle sustained any hits by small arms fire as suggested in Contention No. 3. LTCOL Overstead has no knowledge of the alleged incident being cited by Mr Warhurst, and believes that had such a notifiable incident taken place it would have immediately been brought to his attention and widely debated amongst the troop population.
30.The actions taken by SGT Warhurst and the CPL driver described in Contention No. 3 are not consistent with laid down vehicle ambush drills which was to accelerate and attempt to drive clear of the enemy ambush position. It is unclear from the VRB transcript how this episode with the enemy ended.
31.It would be expected that only 2 TPT PL and 86 TPT PL convoy vehicles would have transited between VUNG TAU, LONG BINH and SAIGON and free running single vehicles suggested in Mr Warhurst's incident were not permitted (and would not have been authorised without the express approval of the OC of 110 SIG SQN).
32.One of the transport officers of 86 TPT PL in 1970 (LTCOL John Tracey) has no knowledge of an Australian vehicle being targeted by enemy fire, or of vehicle occupants being involved in a firefight with the enemy as described by the Veteran. For the information of DVA Geelong there are only three recorded incidents of enemy intervention against convoy vehicles during the period under review, and none of these incidents map with the events described by Mr Norman Warhurst.
a.20 Jun 70. At 1615 hrs an ARVN convoy was ambushed at map reference YS242932 near a rubber plantation in SE BIEN HOA Province. Unknown number of VC using AK47 rifles and 1 x RPG round. Fire was returned with SA and Arty. Sweep revealed nil results.
b.21 Jun 70. At 0730 hrs a vehicle carrying NZ soldiers from Victor Coy 2 RAR/NZ were contacted and fired upon by unknown number of enemy. Ambush occurred at map reference YS382563 about 5 Km south of BARIA and south of the main bridge over the SONG CO MAY river. Nil casualties or damage.
c.11 Sep 70. At 1050 hrs a MATT vehicle with AATTV Phouc Tuy received a burst of SA fire at map reference YS489650 just south of LONG TAN. Nil friendly casualties."
Contention No. 4
For the reasons stated in paragraphs 30 and 31 above, this contention does not require determination. Mr Warhurst's belief that his relief was killed while in Vietnam was ill-founded.
Contention No. 5
"27.Such a heinous crime committed by the mother of a child does not seem possible given the Catholic or Buddhist cultures of the Vietnamese population in PHOUC TUY Province. Had such a traumatic incident occurred and was witnessed by SGT Warhurst (and the accompanying unit driver/escort) during his time with 110 SIG SQN in Vietnam, the Veteran's unit OC (LTCOL Bill Overstead) is certain he would have learned of such a traumatic episode which would have warranted attendance and investigation by both the AFV Provost Unit and South Vietnamese Police.
38.86 TPT PL (Tippers) and 17 CONST SQN based at VUNG TAU operated the 5 Ton G.S. International Dump Trucks in the VUNG TAU area and roads in the 1 ATF TAOR. One of the unit officers of 86 TPT PL that served in the unit in the period under review (LTCOL John Tracey) has no knowledge of any such incident during his twelve months service in Vietnam, and is of the opinion that had such a tragedy involved the murder of an infant occurred in the manner described, he is of the opinion that he would have heard about the incident either formally, or at least through the convoy driving fraternity.
Contention No. 6
39.The Veteran's unit OC in Vietnam (LTCOL Overstead) stated that the duties described by Mr Ronald Warhurst (i.e. visiting injured soldiers in 1 AUST FD HOSP at VUNG TAU and the writing letters to the patients relatives in Australia) was not part of the Veteran's duties, nor the responsibility of any members of his unit.
40.It is worthy of note that friends and acquaintances of hospital patients from the soldiers unit were actively encouraged to visit 1 AUST FD HOSP to boost patient morale, and to perform one-on-one tasks such as reading out a soldiers mail, writing letters on his behalf and assisting disabled patients with general mobility. 1 ATF unit officers or SNCO would also visit their own soldier patients in hosp8ital during breaks in operations. Such hospital visits to see fellow unit members or other soldier acquaintances were not in themselves particularly stressful, and most unit visitors found such hospital visits to see friends as satisfying experiences.
41.Australian Red Cross social workers worked full time at the hospital to provide patient support, as did visiting Army chaplains of all denominations in helping patients etc in 'passing the time'.
42.It is understood that leading up to his early RTA and his requested discharge from the Army submitted in Vietnam, SGT R.W. Warhurst underwent psychiatrist counselling sessions at the 1 AUST FD HOSP. It is accepted that during such psychiatrist clinic visits to the 1 AUST FD HOSP the Veteran (SGT Warhurst) would have observed wounded and maimed patients, noting that the 'walking wounded' (i.e. the sick and the injured patients) were required to regularly exercise in and around the hospital grounds, and eat in the 1 AUST FD HOSP dining hall, with some patients even having 'wet canteen' privileges. Only the hospital patients who were in the recovery wards or in the intensive care unit were confined to bed. For whatever reason the Veteran may have found his visits to this hospital environment difficult to cope with.
Contention No. 7
43.It is confirmed that the logistic support vessel HMAS JEPARIT paid two 'turnaround' cargo voyages to VUNG TAU berthing at the De Long Pier in late Jul 70 and in early Sep 70. After discharging its cargo, the JEPARIT would take on cargo being back loaded to Australia, and often this included battle damaged Centurion tanks and Armoured Personnel Carriers (APCs).
44.Although the task of handling cargo for the HMAS JEPARIT was the responsibility of Detach 30 TERMINAL SQN RAE (assisted by Detach 11 MOVT & CONTROL GP RAE, 5 COY RAASC transport platoons, 2 AOD, 102 FD WKSP recovery crews, AFV Provost Unit and the American contracted stevedores – Alaska Barge & Transport) it is possible that a 110 SIG SQN vehicle may have been permitted to enter the secure dockside area for duty reasons, albeit not for the stated purpose of trading 'beer' for eggs and other commodities. It is to be noted that armed security sentries and Australian military police were posted during the discharge and loading of cargo to prevent pilfering. Eggs supplied to Army kitchens in Vietnam from US Army sources were preserved in ether, and when cooked had a strong ether odour and taste and were unpopular with diners; hence the supply of fresh eggs from visiting ships was a viable trading commodity for entrepatnenrial crew members.
45.Accepting that the Veteran boarded HMAS JEPARIT to conduct 'trading' he may well have witnessed the back loading of the 'hulks' of tanks and APCs. That said, these destroyed vehicles being RTA for rebuild programs could also be observed by passers-by or physically inspected and photographed in the BER vehicle park at the 2 AOD vehicle sub-depot at VUNG TAU during the weeks leading up their shipment to Australia for the armoured vehicle rebuild program.
46.The Veteran's claim that during his visit to HMAS JEPARIT at VUNG TAU that he witnessed APC hulks with evidence of casualties in them cannot be substantiated. To begin after victims (KIA and WIA) were removed from mine or battle damaged APCs in the field, the crew compartments were cleaned out by unit medics and fellow crew members of the duty squadron of 3 CAV REGT.
47.Disabled APCs were recovered from the battlefield to the 1 ATF base at NUI DAT by RAEME Forward Repair & Recovery Teams. Upon arrival at 106 FD WKSP the damaged APC's were inspected, sentenced for repair at 102 FD WKSP or base workshop repairs 'beyond the scope of theatre workshops'. The APCs were steam cleaned by 106 FD WKSP before being transported to the 2 AOD vehicle sub-depot by RAEME workshop recovery crews on flat bed trailers towed by M543 Recovery Vehicles. Prior to their shipment to Australia the APCs and other BER damaged vehicles were steam cleaned at 2 AOD, and all vehicles were required to pass a strict quarantine inspection before transportation to the wharf for loading aboard HMAS JEPARIT.
48.Given the recovery and quarantine procedures adopted in Vietnam for the handling APC hulks described in Paragraphs 46 and 47 it is most unlikely that the Veteran's claim that "he witnessed APC's aboard HMAS JEPARIT with signs of casualties in them" can be substantiated."

Statement – Raymond John Watts

In a written statement dated 22 November 1999 and also in a further statement dated 19 October 2000 (Exhibit A1), Mr Watts, who served in Malaya with Mr Warhurst, stated as follows:
"I wish to verify that whilst serving as driver with 208 COMWEL SIG SQN in Malaya Ron Warhurst and I were involved in an accident with a car returning from SEREMBAN.
Resulting in our one ton truck tipping into monsoon drain.
Ron fell out the passenger door landing on the embankment.
We both were shaken & bruised, we went to the RAP and filled in an accident report." (Statement dated 22.11.99)
"I confirm that the contents of my letter dated 22nd November 1999 concerning Ronald Warhurst is true and correct (a copy of it is attached to this statement).
The motor vehicle collision occurred in approximately September 1962 and when Warhurst and I were travelling to Sereban, I was driving and it was a 1 ton truck. We ended up in a monsoon drain after I lost control of the vehicle. The drain was deep but I do not recall how deep. As I recall it Warhurst was thrown out of the truck in the collision. I recall that the truck was pulled out of the ditch but I do not now recall how this was done. Warhurst and I completed our journey to the base at Malacca. I recall that Warhurst was complaining of pain but I cannot now recall the areas of his body where he was injured. I do recall that once we got to Malacca he reported to the RAP.
Warhurst lived in the married quarters and I lived in the barracks. Warhurst also served in a different crew to mine and as a consequence of these factors I did not have much to do with him after the aforementioned collision." (Statement dated 10.10.00)

Further Contentions – Mr Warhurst

It was Mr Warhurst's contention that he was a moderate drinker before his tour of duty in Vietnam, but that whilst serving in Vietnam he drank excessively. This, he said, was due to the stress he experienced, and the fact that his fellow Sergeants drank to excess.
Mr Warhurst claimed that he used alcohol as a means of sedating himself and getting to sleep. He asserted that by the time of his discharge he was drinking daily and excessively at times and found that drinking was his way of coping. He maintained that he continued to drink to excess after his discharge. He added that while he has never been convicted of any drink-driving offences this was due to good luck, especially because there have been many occasions when he has driven while intoxicated.
Mr Warhurst further contended that he is now more tolerant of alcohol, which means he has to consume greater quantities of alcohol to obtain the same effect as previously. He has attempted to cease drinking but has found that he is unable to do so and there is disharmony with his wife over the quantities of alcohol he consumes.
As was observed by Mr Chancellor, several Psychiatrists have rendered reports in respect of Mr Warhurst:

Dr Gidley, dated 26 March 1996 (T51-53);
Dr Holwill, dated 24 January 2000 (T142-145);
Dr Cole, dated 2 March 2000 (Exhibit A3);
Dr Kenny (two reports), dated 11 December 2000 and 4 January 2001 (Exhibits R5 and R6).

Dr Gidley concludes that Mr Warhurst suffers Generalised Anxiety Disorder, but not Post Traumatic Stress Disorder ("PTSD"). He did not believe that Mr Warhurst's generalised anxiety disorder is war-caused. Dr Holwill and Dr Cole do not agree with Dr Gidley and both conclude that Mr Warhurst does suffer PTSD and Alcohol Abuse or Dependence, and that these are war-caused.
As indicated earlier at paragraph 5, that part of the decision of the VRB which relates to stress and anxiety is not before the Tribunal for determination. It was contended, on behalf of Mr Warhurst, that while this may be so, he does, however, suffer PTSD and that the disability is war-caused within the meaning of section 9 of the Act.
Evidence of Lieutenant Colonel Overstead
As indicated earlier, Lieutenant Colonel Overstead was Mr Warhurst's Commanding Officer in Vietnam.
In the course of his evidence before the Tribunal, which was given by telephone, the Colonel in effect confirmed the content and accuracy of the response given by Major Tilbrook to Mr Warhurst's contention that he was not aware of the reason why he was sent home early from Vietnam, or the basis of the Ministerial posting (Contention No. 2). Indeed, the Colonel said in evidence as follows:
"Now, when he came in, I had no inkling that I recall that he was an unhappy man; he was just a sergeant requesting an interview with me, and as normal I usually closed the door and asked him to sit down and be quite informal about it, and have a chat. Sometimes I can help him, sometimes he can help me, but I expected to talk about vehicles and the transport generally. But I nearly fell over, or fell off my chair, when he said that he was extremely unhappy, and when I pressed him to give me as much information as possible, he did not talk so much about his marital state; he emphasised the fact that he hated what he called – and I am pretty sure I use the correct word here – noggies. And I said, "Well, come on, you had better tell me a little bit about this. What is it in your make-up and what don't you like about noggies and so on?" He said, "I don't like Vietnam; I don't like Chinese people; I don't like any of the people from South-East Asia. I can't get on with them; I'm just frightened that I might do something that would bring discredit to myself and to Australia and to your unit, to the Army," and he said "It's driving me mad. I don't feel that I can look after your transport section properly and look after the drivers when I've got this extremely had attitude to the local people." And at the particular time, I said, "Well, no, that is quite a problem because you're a senior NCO and I would expect you to set the example for the others, and as a mature man, an older man, as well as being a sergeant, I expect certain things of you. But look, let's sort of give it a go; is it really that bad? Can't you hide this? Can't you stay within the perimeter of the camp and not go out to any of the bars when you are off-duty, or just don't – you don't have to fraternise, but you can be a damn good sergeant by keeping away from the locals and just looking out for your own troops", and he said "No, it's very deep within me and I think it would be better if you didn't have me for the transport sergeant." So obviously I had to talk about going back to Australia, but – I cannot remember particularly at this stage – but in every other case that came to me, and there was a Signalman at the same time came to me, he went bananas, and he should have been sent home, and I always interviewed people who were a little different from other people, sent them to the padre, and the padre and I had an arrangement whereby if I thought that someone should go home, the padre would have a chat with him, we would get back together, and then I would send him to the psych people and if the padre, the psych and I all agreed then I would put up a strong case and send the man home to Australia; but not until we all agreed and it was quite apparent that we were not doing the man an injustice. Now, I do not know, there is no thought, there is nothing in my diary and I have not got access to my war diary or my monthly reports, but normally I would have sent him to a padre as well. And the other guy who was there at the time did go to the padre and I remember having a long chat with the padre, because the man was really a psych case. But I must have only suggested to my sergeant that he goes and talks with the psych, and obviously the psych agreed with me and he was sent home. I do have a little bit of information from your committee of inquiry down there, and it would seem that Sergeant Warhurst is now claiming that he did not know whey he was sent back to Australia.
That is correct – But really I am not patting myself on the back, but I would deal with anybody in an open, friendly way, and there should have been no doubt in Sergeant Warhurst's mind that that is what was going to happen. And I also have an entry in my personal diary on 19 September where I simply said:
Sergeant Warhurst is still very anxious to go back to Australia and is making inquiries as to when he is going.
And on the 23rd I have an entry in my personal diary where I attended Sergeant Warhurst's farewell from the sergeants' mess, and he was in a good mood and getting ready to go home. And on 24 September, in fact, he did go home. So, my memory, my diary – and I'm hoping this will be confirmed by my monthly reports from the war diary – will simply tell me, that irrespective of his family circumstances, the man said he would let Australia, the unit, the army down and wanted to go back to Australia. I investigated but in sympathy with the psych people he was going to be sent home and my diary tells me that everything was understood by Warhurst before – the week before he went back and at his farewell. So there should have been no doubt in the man's mind of what was happening." (Transcript pp. 147-148)
With respect to Mr Warhurst's assertion that while in Vietnam he used alcohol as a means of sedation, and that at the time of his discharge from the Army he was drinking daily and excessively, at times, Colonel Overstead stated that while under his command Mr Warhurst was "certainly not a hard-drinking, hard talking, bitter NCO". Indeed, the colonel described Mr Warhurst as a "very friendly person".
When asked whether he would have been made aware of one of his soldiers coming into contact with the enemy, the Colonel stated:
"Absolutely, absolutely. That would have been reported to me by anybody. I had about 280 soldiers up there and if there was any activity with the enemy at all it would – if it didn't come directly to me it would come up through the ranks, through the chain of command, very, very quickly. Everything is overseen by all my officers and all my NCOs and they would very, very quickly get me no matter where I was." (Transcript p. 151)
When questioned in respect of Mr Warhurst's contention No. 3 (paragraph 29 above), Lieutenant Colonel Overstead stated as follows:
"That would have been very hot news and I expressed considerable surprise. We had no meetings with the VC directly whilst I was there and that would have been very, very hot news. Now, occasionally, people used to organise various things for themselves. They might be with another Australian in Saigon or if they went up to the taskforce they might witness something that was – didn't have any bearing on my unit or headquarters 1ALSG. They might see a helicopter in the sky, a gunship and they might witness something and that is out of sheer interest that they would take it in. But if they were in a convoy and they were attacked and it was direct action against them and they were fired at, but they returned fire, that is an incident report and I would expect anyone in my unit, and certainly a sergeant, to report that immediately he got back or by radio if he had a radio.
Yes – I am absolutely shocked by this, because in the time I was up there, we had intruders who tried to break into the 1ALSG protected area. We had a number of rockets fired over us. We had a number of flares being used by the Americans around the perimeter. We sent out patrols but we didn't really have any serious contact with the VC during my tour up there. Had any contact at all including Sergeant Warhurst, my transport sergeant, being fired at and returning fire and maybe even having a round – injure the vehicle. That would have been hot news and everyone of us of the 280 would have known about it. It would have been in the monthly report, the war diary, and I probably would have shot a signal straight back to the director of signals." (Transcript p. 152)
When questioned concerning Mr Warhurst's assertion that he had witnessed a mother throwing a baby under the wheels of a Dump truck, Lieutenant Colonel Overstead stated that if the truck had been a US or Australian vehicle, then he would have been surprised if Mr Warhurst did not make a full report on the incident.
Lieutenant Colonel Overstead did not dispute that Mr Warhurst may have visited HMAS JEPARIT, for the purpose of exchanging beer for fresh eggs (Contention No. 7 – paragraph 34 above).
During his evidence Lieutenant Colonel Overstead was asked about specific incidents that had been referred to by Mr Warhurst, including enemy rocket attacks on the Air Force Base near to 110 SIG SQN, and one occasion when there was an attempted break-in to the ASCO Canteen, resulting in one of the intruders being shot and another left hanging on the security wire. It was the Colonel's evidence that he did not believe that these sorts of incidents would have caused the members of his Squadron to become frightened. In any event he would have been very surprised if Mr Warhurst was involved in the policing of any of the security measures that were in place, such as standing patrols.
Evidence of Major J.B. Watson
Major Watson served in Vietnam from December 1969 to December 1970 in the rank of Sergeant in charge of Military Police Field Force Section of the Australian Task Force, Nui Dat.
Major Watson explained that in Saigon and Vung Tau, the Australian military police were controlled by the American radio network, and that anything that came over on any of the police vehicles the Australians would pick it up. In the event of a serious incident the Australian military police would generally attend and provide assistance.
It was Major Watson's recollection that during his tour of duty in Vietnam a baby was killed by the rear wheels of a truck. The cause of death, however, was purely accidental.
When asked whether, if a baby had been killed in the manner contended by Mr Warhurst (Contention No. 5), he would have been aware of the incident, the Major stated as follows:
"Well, I can't categorically say that, because there are things that do happen that you don't get wind of. What I would say is that in the general term, those sorts of things would be a general talking point between the military police. It would be the sort of thing that the information would get around very quickly. But on the other hand, I would have to say in fairness to the Sergeant, that could very well happen and it may not have been put through to the Australian Military Police. But quite obviously, I can't categorically say, "Yes it did happen", or "No, it didn't happen". (Transcript . p. 170)

Evidence of Warrant Officer I.H. Laurie

Warrant Officer Laurie served in Vietnam during the period from June 1970 to late September 1970. During that time he was an Investigative Sergeant with the Special Investigation Branch of the Military Police. His duties included attending accidents involving Australian, and occasionally American, vehicles.
It was Warrant Officer Laurie's evidence that he was not aware of an incident having occurred in Vung Tau involving the death of a baby, as contended by Mr Warhurst. Had such an incident occurred, he would have become aware of it.
Report by Dr E. Cole
Dr Cole, a Psychiatrist, saw Mr Warhurst on 9 February 2001, and again on 15 February 2001. He later provided a report (Exhibit A3), dated 2 March 2001.
As has already been observed at paragraph 46 above, it is Dr Cole's opinion that Mr Warhurst suffers PTSD and Alcohol Abuse or Dependence. In this connection the doctor stated:
"Mr Warhurst is suffering from a chronic post traumatic stress disorder of moderate degree directly attributable to his war time experiences in Vietnam. There is, of course, some dispute about the exact nature of these experiences and I do not pretend to be in a position to judge the facts of the matter, except to say that I have no reason to doubt the account that Mr. Warhurst gave me. The matter is also clouded by his WorkCover claim for stress and the fact that he had first denied having experienced any nervous symptoms as a result of his service in Vietnam, but I can only say that Vietnam veterans are reluctant to talk about their experiences, particularly if they see them as irrelevant to the issue in hand, and I have seen other veterans making Work Cover claims who only later were prepared to discuss problems arising out of their service. I would not, therefore, place an undue amount of store on Mr. Warhurst's original denial, although I appreciate that it does not enhance his credibility.
I further note that he did not drink before he joined the Army, and it was only during his service in Vietnam that he began to drink at all heavily. The same pattern has continued every (sic) since, and I would regard his drinking habits as symptomatic of his underlying post traumatic stress disorder."

Reports by Dr B.M. Kenny

Dr Kenny, a Consultant Psychiatrist, saw Mr Warhurst on 8 November 2000, and as indicated earlier, he subsequently provided a report dated 11 December 2000 (Exhibit R5) and then a supplementary report dated 4 January 2001 (Exhibit R6).
It was the doctor's opinion that Mr Warhurst demonstrated at least some features of mild PTSD associated with his service in Vietnam. He accepted that Mr Warhurst did suffer substance abuse in respect of tobacco and alcohol, and considered that "there had been a very real contribution to that from his experiences in Vietnam".
In his supplementary report the doctor stated that he was "unable to decide with any degree of certainty whether the incidents reported by Mr Warhurst actually occurred or not".
Report by Dr R. Westh
Dr Westh, an Orthopaedic Surgeon, examined Mr Warhurst on 9 February 2001, and provided a report of the same date (Exhibit A2) for the purposes of these proceedings.
It was the doctor's opinion that the claimed condition Lumbar Spondylosis fits the requirements of the factor 5(h) of SoP Instrument No. 27 of 1999, which is the factor upon which Mr Warhurst relies (see paragraph 14 above).
Application for Discharge From Army
It is noted that on 11 September 1970, Mr Warhurst signed an application for discharge (Exhibit R2), prior to his return to Australia from Vietnam.
Whether Material Points to Hypothesis Connecting Lumbar Spondylosis with Circumstances of Service
After considering the whole of the material before me, I determined that such material points to a hypothesis connecting Mr Warhurst's spondylosis with the circumstances of the particular service rendered by him.
The facts which are raised by the material and which point to a hypothesis are essentially:
(a)That Mr Warhurst served in Malaya as a Unit Driver from 13 July 1961 to 12 July 1963;
(b)That he served in Vietnam from 11 June 1970 to 24 September 1970 as a Supervisor Transport, with 110 Signal Squadron;
(c)That Unit vehicles were used to ferry stores within the Vung Tau area; on occasions to 110 Signal Squadron detachments at Nui Dat and/or to fire support bases whenever the Squadron was required to install and operate rear-link communications infrastructure at HQ 1 ATF (FWD);
(d)That (as asserted by Mr Warhurst), he was involved in three motor vehicle accidents, one in Australia in 1961, and two in Malaya while serving as a Unit Driver;
(e)That in the course of the second vehicle accident in Malaya, which occurred in September 1962, he sustained a back injury, resulting in bruising and pain in his back which persisted for several weeks.

Whether Hypothesis Reasonable

As indicated earlier, there is no dispute (and the Tribunal accepts on the medical evidence) that Mr Warhurst suffers from lumbar spondylosis.
It is my opinion that the hypothesis is a reasonable one in that it is consistent with the particular factor 5(h), upon which Mr Warhurst relies in SoP Instrument No. 27 of 1999.
Whether Incapacity Did Not Arise From a War-Caused Injury
As explained in Repatriation Commission v Deledio, where the Tribunal has formed the opinion that the hypothesis is a reasonable one, it could neither be said to be contrary to proven or known scientific facts, nor otherwise obviously fanciful or untenable.

It is relevant to note that the Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in section 120(3) of the Act that "the material raise a reasonable hypothesis". The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Byrnes (supra) and said at p.730:
"This court restates 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."
In the circumstances the Tribunal, pursuant to section 120(1) of the Act, is required to consider whether it is satisfied beyond reasonable doubt that the incapacity of Mr Warhurst did not arise from a war-caused injury.
In addressing this requirement I have noted that although Mr Warhurst initially limited his evidence to the motor vehicle accidents which he asserts occurred in Malaya, he later acknowledged that prior to his service in that region he was involved in a motor cycle accident during which he broke two of his ribs.
However, perhaps more significally I have had careful regard for the evidence of Major Tilbrook, particularly his very detailed response to Contention No. 1. I accept the response as being the true position and accordingly I am satisfied beyond reasonable doubt that the incapacity of Mr Warhurst due to lumbar sponsylosis, did not arise from a war-caused injury.
Whether Mr Warhurst Suffers From Alcohol Abuse
It is noted that in its Reasons for Decision the VRB determined the question of whether Mr Warhurst suffers from alcohol abuse. As indicated earlier in paragraph 16 above, SoP No. 76 of 1998 defines alcohol abuse.
In addressing the issue the VRB stated:
"Although both Dr Wise and Dr Holwill have diagnosed Mr Warhurst as suffering from alcohol abuse they have done so without any explicit reference to this definition or the relevant diagnostic criteria set out in it. Therefore the Board had to determine for itself whether it was reasonably satisfied that Mr Warhurst suffers from alcohol abuse, as defined above.
It can be seen that this definition requires there to be a maladaptive pattern of alcohol use leading to significant interference in the persons life. On the basis of Mr Warhurst's evidence to the Board, it concluded that, although he has had some problems caused by his alcohol consumption, such as being home late for dinner and arriving late at work on a couple of occasions, these do not amount to the necessary major, persistent or recurrent problems required to satisfy the above definition. Although he said that he has driven whilst so drunk that he could hardly see the road, Mr Warhurst has never had any drink driving offences and, when he has been breathalysed, he in fact turned out to be okay. Therefore, there is no evidence of him having alcohol related legal problems and his evidence was insufficient to amount to recurrent alcohol use in physically hazardous situations. In any event to the extent that Mr Warhurst gave evidence that he has driven while drunk, that was a few years ago, and he has now changed his practices.
Accordingly, the Board was not reasonably satisfied that Mr Warhurst, at any time since lodging his claim, has met the diagnostic criteria for alcohol abuse as defined in the Statement of principles."
The VRB then went on to state:
"None of the doctors have diagnosed Mr Warhurst as suffering from "alcohol dependence", which is also extensively defined in the Statement of principles. The Board also considered that definition and was similarly not reasonably satisfied that the relevant diagnostic criteria were met in Mr Warhurst's case.
Therefore the Board agreed with the Repatriation Commission that Mr Warhurst did not have a diagnosable condition of alcohol abuse or alcohol dependence and, for that reason, affirmed the Commission's decision in relation to the claim for that condition.
Despite this, the Board also considered the causation issues as these have been fully argued before it. There was no suggestion of any causal link between Mr Warhurst's alcohol consumption and his operational service in Malaya. Reliance was placed on Mr Warhurst's increased alcohol consumption in Vietnam. However, the evidence clearly indicated that Mr Warhurst had a well established alcohol consumption pattern from at least 1968 onwards after entering the ranks of the Senior NCO's Mess. This pattern, which has remained with him since, was established prior to his Vietnam service or any psychiatric disorder that may have arisen from that service. However, as discussed above, the Board was not satisfied that Mr Warhurst's drinking reached the level of being alcohol abuse or alcohol dependence either at that stage or at any time since."

As indicated earlier, the position now, however, is that both Dr Cole and Dr Kenny are of the opinion that Mr Warhurst does suffer from alcohol abuse or dependence, although Dr Kenny clearly has substantial reservations as to the veracity of some aspects of the history given to him by Mr Warhurst.

While noting the reservations expressed by Dr Kenny and while I also note that the diagnoses given by Dr Holwill (T145) and Dr Wise (T95) in respect of alcohol abuse were made without reference to the relevant diagnostic criteria set out in SoP Instrument No. 76 of 1998, I am nevertheless reasonably satisfied that Mr Warhurst does suffer from alcohol abuse.
Whether Material Points to Hypothesis Connecting Alcohol Abuse with Circumstances of Service
After considering the whole of the material before me, I determine that such material points to a hypothesis connecting Mr Warhurst's alcohol abuse with the circumstances of the particular service rendered by him.
The facts which are raised by the material and which point to a hypothesis are essentially:
(a)That Mr Warhurst served in Vietnam from 11 June 1970 to 24 September 1970 as a Supervisor Transport, with 110 Signal Squadron;
(b)That while in Vietnam he suffered the stressful experiences set out in his Contentions Numbered 2, 3, 4, 5, 6 and 7, to which reference has already been made;
(c)That while in Vietnam he used alcohol to relieve stress and as a means of "sedating" himself, and to help him sleep;
(d)That the quality of alcohol he consumed while in Vietnam was excessive;
(e)That his fellow Sergeants in Vietnam drank excessively in the Sergeants' Mess;
(f)That having formed the habit of drinking excessively while serving in Vietnam he continued to do so following his discharge.

Whether Hypothesis Reasonable

It is my opinion that the hypothesis in respect of alcohol abuse is a reasonable one in that it is consistent with the particular factors set out in paragraph 5(a) and 5(b) of SoP Instrument No. 76 of 1998 (see paragraph 16 above).
Whether Incapacity Did Not Arise From a War-Caused Injury
As I have indicated, in support of his claim for alcohol abuse, Mr Warhurst relies upon a number of contentions. As I have also indicated those contentions have been examined in very considerable detail by Major Tilbrook. Other witnesses, notably Lieutenant Colonel Overstead; Major Watson and Warrant Officer Laurie were also questioned concerning the substance of the various contentions.
Lieutenant Colonel Overstead's evidence was especially helpful to a proper understanding of Mr Warhurst's attitude while the latter was serving in Vietnam and the true reason why he returned to Australia.
Having considered this matter at length I am satisfied beyond reasonable doubt that Mr Warhurst's incapacity from alcohol abuse did not arise from a war-caused injury. His claim in respect of that condition therefore fails.
My finding is based upon the following facts:
(a)That Mr Warhurst was returned to Australia because of his personal dislike of Vietnamese people;
(b)That any stress he may have experienced was due principally to the concerns he had over his wife's infidelity;
(c)That the incident referred to in Contention No. 3 did not occur;
(d)That the assumption concerning his relief in Vietnam, as expressed in Contention No. 4, was ill-founded and not correct;
(e)That the incident referred to in Contention No. 5 did not occur;
(f)That visits to the military hospital to see injured soldiers were not considered to be particularly stressful. Indeed, most visitors found it a satisfying experience (Contention No. 6);
(g)That while Mr Warhurst may have made visits to HMAS JEPARIT, he would not have seen APC's with evidence of human casualties (Contention No. 7);
(h)That overall the circumstances under which Mr Warhurst served as a member of 110 Signal Squadron, were not stressful nor was there any particular reason for personnel of the Squadron to be afraid for their safety. (Evidence of Lieutenant Colonel Overstead).

Hypertension

As was noted by the VRB, Mr Warhurst's claim for hypertension is based solely on his contention that he suffers from alcohol abuse, and that none of the other causal factors for hypertension listed in SoP Instrument No. 25 of 1999 are relied upon.
In view of the fact that the Tribunal has determined that Mr Warhurst's alcohol abuse is not war-caused, it follows that the alcohol abuse risk factor for hypertension is not raised on the material. Indeed, even if Mr Warhurst did currently suffer from war-caused alcohol abuse, his claim for hypertension would still have had the difficulty that there is an absence of evidence as to the presence of that condition prior to the accurate determination of his hypertension, which is understood to have been made in 1982.
Having considered all of the material before me, I find that while that material points to a hypothesis connecting hypertension with the circumstances of the particular service rendered by Mr Warhurst, the hypothesis is not a reasonable one in that it does not contain one or more of the factors which the RMA in SoP instrument No. 25 of 1999 has determined to be the minimum which must exist, and be related to the veteran's service. It follows, therefore, that Mr Warhurst's claim for hypertension must fail.
Decision
For the reasons given, the Tribunal will affirm the decision under review.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  29/5/01
Date of Decision  26/6/01
Counsel for the Applicant        Mr Chancellor
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr E. Nyhof
Solicitor for the Respondent    Department of Veterans' Affairs