WILLIAM RICHARD LYONS and REPATRIATION COMMISSION
[2010] AATA 562
•20 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1864
VETERANS’ APPEALS DIVISION ) Re WILLIAM RICHARD LYONS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, MemberDate20 July 2010
PlacePerth
Decision The Tribunal:
· varies the decision under review by determining that the applicant suffers from Alcohol Abuse (in remission) instead of Alcohol Dependence; and
· affirms that decision, as so varied.
............(sgd S D Hotop)..........
Deputy President
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from March 1960 to March 1969 - applicant rendered operational service - applicant suffers from Generalised Anxiety Disorder (GAD) and Alcohol Abuse (in remission) secondary to GAD - applicant does not suffer from post traumatic stress disorder - material before Tribunal raises hypothesis that applicant's GAD connected with operational service - raised hypothesis connecting GAD with operational service upheld by Statement of Principles (SoP) - raised hypothesis a reasonable hypothesis - Tribunal satisfied beyond reasonable doubt that factual foundation of raised hypothesis false - GAD and Alcohol Abuse (in remission) not war-caused - decision under review varied, and affirmed as varied
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning anxiety disorder No 101 of 2007 (as amended by Instrument No 42 of 2010)
Statement of Principles concerning Anxiety Disorder (Instrument No 1 of 2000)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
20 July 2010 Deputy President S D Hotop
Brigadier A G Warner, MemberIntroduction
1. The applicant, William Richard Lyons, served in the Royal Australian Navy (“RAN”) from 12 March 1960 to 11 March 1969 during which he rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”), as follows:
·on board HMAS Vampire in the Far East Strategic Reserve for various periods in the period from 29 September 1961 to 8 May 1963;
·on board HMAS Vampire in Vietnamese waters from 25 January 1962 to 29 January 1962;
·on board HMAS Sydney in Vietnamese waters in the following periods;
27 May 1965 to 26 June 1965
14 September 1965 to 20 October 1965
8 April 1967 to 22 April 1967
28 April 1967 to 12 May 1967
19 May 1967 to 14 June 1967
20 December 1967 to 3 January 1967
17 January 1968 to 16 February 1968
27 March 1968 to 26 April 1968; and
·on board HMAS Melbourne in Vietnamese waters from 25 April 1966 to 6 May 1966 and from 25 May 1966 to 9 June 1966.
2. On 31 July 2006 the applicant lodged with the Department of Veterans’ Affairs a claim which was treated as a claim for acceptance, for the purposes of disability pension under the VE Act, of anxiety disorder and alcohol dependence as war-caused conditions.
3. On 30 November 2006 a delegate of the Repatriation Commission determined that neither anxiety disorder nor alcohol dependence was related to the applicant’s operational service and that, accordingly, neither of those conditions was war-caused for the purposes of the VE Act.
4. On 1 April 2009 the Veterans’ Review Board (“VRB”) affirmed the decision of the Repatriation Commission.
5. On 4 May 2009 the applicant lodged with the Tribunal an application for review of the VRB’s decision.
The Evidence
6. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T23, pp i-xv, 1-139) lodged by the Repatriation Commission in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· transcript of the applicant’s hearing before the VRB on 1 April 2009 (Exhibit R1);
· Writeway Research Service report of Commodore P M Mulcare (RAN Rtd), dated 18 October 2009 (including Attachments 1-7) (Exhibit R2); and
· the oral evidence of the applicant, Dr O Kay and Commodore P M Mulcare.
The Applicant’s Evidence
7. The applicant referred, in particular, to his service on board HMAS Sydney when anchored off Vung Tau, South Vietnam, in June 1965. He said that on the first day when the ship anchored he was operating a machine in the ship’s engine room below the water line when he heard explosions outside the ships hull, “right next to the side of the ship”, and that these explosions “scared the merry hell out of” him. He said that he had “never come across anything like that before” and he wondered whether the ship was under attack and whether the side of the ship would be blown out. He said that he “felt pretty scared” and he spoke to the Petty Officer about it and told him he was “not happy” and, although the Petty Officer “displayed bravado”, the Petty Officer was “not impressed” because no warning had been given. He said that it had never been explained to him that “grenades” would be thrown over the side of the ship in order to combat enemy divers and that when he heard the explosions he “feared for [his] life”, adding that he “was only a young bloke at the time”. He further added that there was no PA announcement in the engine room but that, even if there had been, it could not have been heard over the noise of the machinery. He said that at the end of that watch he was “glad to come off watch” and he asked “the chief” for a transfer out of the engine room and he then went on to operating forklifts on the upper deck while the ship was in the harbour, although he returned to work in the engine room when the ship was back at sea. He added that, after that first trip to Vietnam, he continued to operate forklifts whenever the ship was in harbour.
8. The applicant also referred to an incident which he said occurred while he was on board HMAS Vampire when berthed in Saigon Harbour, South Vietnam, in January 1962. He said that he was on the Quarterdeck when he saw two dead bodies which had been floating in the water and had been brought on board the ship. He said that the bodies, which were believed to be those of two American soldiers, were “covered quickly” and he was “a bit upset but not too much”.
9. The applicant said that he subsequently “hit the grog” and became “moody” and would not talk for days or weeks but he did not think he had a problem and did not seek help. He said that he was eventually persuaded to see a psychiatrist, Dr Fellows-Smith, in November 2002, and that he subsequently (in August 2003) saw another psychiatrist, Dr Kay, who has since been treating him. He said that he “still drinks a lot” but his drinking is “not so bad now”.
The Medical Evidence
Dr James Fellows-Smith
10. The following report of Dr James Fellows-Smith, Psychiatrist, addressed to the Department of Veterans’ Affairs, appears in the T Documents (T4):
“ I saw the abovenamed on the 1 November 2002, 11 November 2002 accompanied by his wife Jean and again today for the purpose of this report. He is a fifty nine year old married firefighter with three grown up children. He presents with stress symptoms directly related to his operational service serving in the Far Eastern (sic) Strategic Reserve on HMAS Vampire 1960-1963, HMAS Melbourne 1963-1964 and Vietnam (sic) HMAS Vampire and HMAS Sydney 1966-1968.
With regard to the diagnosis of Generalised Anxiety Disorder as described in DSMIV 300.02:
Category A: Mr Lyons describes feeling excessive anxiety and worry occurring for more days than not.
Category B: He finds it difficult to control the worry.
Category C: The anxiety and worry are associated with restlessness and feeling keyed up and on edge, being easily fatigued, difficulty concentrating, irritability, muscle tension and sleep disturbance.
Category D:The focus of the anxiety and worry is not confined to features of an axis one disorder. Mr Lyons describes being sensitised to trauma as he was based at Garden Island at Potts Point when the wounded returned from the Melbourne/Voyager collision in Jervoise (sic) Bay 1963. He witnessed sixty to eight (sic) injured sailors who had been retrieved from the two ships. He heard eyewitnesses’ account (sic) of the drowning of several of the shipmates who he had known during his operational service in the Far Eastern (sic) Strategic Reserve. His (sic) served six tours to Vietnam taking troops on the Sydney to Vung Tau Harbour. He describes being battened down below at action stations while scare charges were detonated to deter enemy divers. Although the experiences that he describes are stressful they do not fulfil the criteria for Post Traumatic Stress Disorder 309.81
Category E:The anxiety, worry and physical symptoms cause clinically significant distress and impairment in social, occupational and interpersonal areas of functioning.
He met his wife before Vietnam and his wife noticed a marked change on his return. He had become more withdrawn, more irritable and was drinking more heavily. He continues to consume approximately ninety units of alcohol per week. He has noticed a marked tolerance to the effects of alcohol and a rebound in anxiety symptoms should he remain abstinent for twenty four hours. His wife Jean gave an account of her husband yelling in his sleep due to nightmares.
Category F:The disturbance is not due to the direct physiological effects of a substance or a general medical condition.
Two years ago Mr Lyons underwent a left sided shoulder joint reconstruction requiring him to remain abstinent for four months. He remained abstinent for two weeks after the operation however he resumed drinking due to the onset of persistent distressing memories of the war and sleep disturbance due to being awoken by vivid dreams. He describes a recurrent dream of an incident when a shipmate was impaled on a rifle during horseplay in the mess whilst the Sydney was taking troops to Vietnam.
Mr Lyons was born in England with normal birth and development. He describes his childhood as basically happy. He migrated to Australia with his family at the age of five. He mixed well at school and participated in sports. There is no family history of psychiatric disorder or past psychiatric history. Associated medical conditions include tinnitus, deafness and skin rashes. He has orthopaedic injuries including left shoulder reconstruction in the year 2000 and a C6/7 disc protrusion diagnosed in August 2001. He had his right carpel tunnel released in 1997. Gout was diagnosed in September 2002.
On mental state examination Mr Lyons was a pleasant and coherent historian. He became mildly distressed while describing his traumatic events. There was no evidence of any major mood disorder. His affect was restricted. There was no evidence of any psychotic phenomena. Cognitively he was unimpaired. His insight into his condition was good. Haematological investigation was unremarkable.
In addition to Generalised Anxiety Disorder there is evidence of a claustrophobic tendency.
With regard to the diagnosis of Specific Phobia as described in DSMIV 300.29:
Category A:Mr Lyons describes a marked and persistent fear that is excessive and unreasonable cued by the presence or anticipation of specific situations such as flying, heights and confined spaces. Eg: going in tunnels, confined spaces and wearing breathing apparatus. He avoids public transport and flying.
Category B:Exposure to the phobic stimulus almost invariably provokes an immediate anxiety response.
Category C: Mr Lyons recognised that the fear is excessive and unreasonable.
Category D:The phobic situations are avoided or else are endured with intense anxiety or distress.
Category E:The avoidance, anxious anticipation, and distress in the feared situations interferes significantly with Mr Lyons’ normal routine, occupational functioning, and social activities. There is marked distress about having the phobia.
Category F: Mr Lyons is fifty nine years old.
Category G:The anxiety and phobic avoidance associated with these specific situations is not better accounted for by another mental disorder.
He was assessed by his general practitioner Dr Murphy for the presence of any organic brain disease and a normal CT scan of head was performed one week ago. His haematological investigation was unremarkable.
OPINION
Mr Lyons presents with Generalised Anxiety Disorder, Claustrophobia and secondary Alcohol Dependence Syndrome directly due to his operational service in Vietnam….”
Dr Oleh Kay
11. Dr Oleh Kay, Psychiatrist, gave oral evidence. He said that he had been seeing the applicant since August 2003 and he confirmed that he had prepared reports, dated 24 September 2003, 3 August 2007, and 16 September 2008 regarding the applicant.
12. Dr Kay’s report of 24 September 2003, addressed to Dr J Murphy, the applicant’s general practitioner, states as follows:
“ Thank you for referring Bill for a second psychiatric opinion. As you know, he was previously assessed by my psychiatric colleague, Dr Fellows-Smith, who made a diagnosis of a Generalised Anxiety Disorder.
Bill is a 60 year old, married, recently retired Fire Fighter, who had served in the Royal Australian Navy as a stoker and is currently in receipt of a 50% disability pension for non psychiatric conditions.
On reviewing Bill’s history, it is clear that he has had long standing symptoms of psychiatric distress with difficulty sleeping, occasional nightmares relating to his service experiences and difficulty entering confined spaces. I agree with Dr Fellows-Smith that the appropriate diagnosis is of a Generalised Anxiety Disorder. His disorder was not severe enough to qualify him for an alternative diagnosis such as Post-Traumatic Stress Disorder.
Bill’s GAD would appear to be related to multiple events during his naval service including viewing the bodies of American Servicemen retrieved from Vung Tau Harbour (sic). On reviewing his naval medical records, there was no evidence of anxiety symptoms being noted during his naval service and on that basis I think he is unlikely to be successful in pursuing his claim with the Department of Veterans’ Affairs.
…” (T7, p 25)
13. Dr Kay’s report of 3 August 2007, addressed to the applicant’s advocate, states as follows:
“ I understand that you are now acting as Mr Lyons’ advocate. I have been responsible for Mr Lyons’ psychiatric care since August 2003, although he initially consulted my colleague, Dr Fellows-Smith. I enclose a copy of my letter to his General Practitioner dated 24th September 2003, the report of Dr Fellows-Smith dated 18th November 2002. I remain of the opinion that Mr Lyons is suffering from a chronic Generalised Anxiety Disorder caused by his naval service, specifically being below the water-line when scare charges were detonated near him. He had no familiarisation training with scare charges before this time and no warning was given to him when the scare charges were about to be detonated. The result of this experience was that Mr Lyons was no longer able to tolerate being under the water-line and got around this by volunteering to be a forklift driver on the ship. A case could me (sic) made that he suffers from the alternative diagnosis of Post-Traumatic Stress Disorder on the basis that he was fearful of his life when the scare charges were detonated and remains fearful of confined spaces and is intolerant of loud explosions. However, he clearly suffered from an Anxiety Disorder immediately after this experience of the detonation of scare charges as was evidenced by his request for a transfer out of where he was previously serving below the water-line.” (T20, p116)
14. Dr Kay’s report of 16 September 2008, addressed to the applicant’s advocate, states as follows:
“ Following our several recent telephone conversations and your request for me to review Mr Lyons, I advise that I formally reviewed him in the company of his wife, from whom I obtained a corroborative history , today 16th September, 2008.
I have been responsible for Mr Lyons psychiatric care since mid 2003 (sic) and I know that prior to consulting me he saw my colleague Dr Fellows-Smith. I note in a report from Dr Fellows-Smith dated 24th September, 2003 (sic) he gave the opinion that Mr Lyons suffered from a Generalised Anxiety Disorder.
Indeed, by the history that I have Mr Lyons has had pronounced anxiety symptoms during and since his naval service. I understand that Mr Lyons experienced a number of traumatic events during his naval service including witnessing the returning sailors from the Melbourne Voyager collision. However, the event that Mr Lyons believes has had the greatest effect to (sic) him was during his 10 tours to Vietnam on HMAS Sydney, Melbourne and Vampire. His initial posting was as Engineering Stoker below the water line. While stationed there he experienced a number of underwater explosions known as scare charges. Mr Lyons informs me that he never had any familiarisation training before the explosions and that in the engine space it was impossible for him to receive adequate warning of intended detonation of the charges because of the high ambient noise level. Consequently, whenever the scare charges were detonated, it came as an enormous shock to him, the explosion being carried well in the medium of water, and he was separated from the ocean only by the sloping steel hull of whatever ship he was on. He often felt that he was about to die and the charges were attempts of the enemy to attack the ship. Various stories had circulated amongst the sailors of how the enemy would float charges down into the harbour in such a way as to detonate them on Allies ships and he told me that indeed a number of ships had been sunk in such a way in the past. As a consequence of these experiences, Mr Lyons told me his nerves were ‘shot’, and after he was unable to tolerate confined, dark or noisy spaces such as in his engineering station.
As a consequence he applied for and was granted a transfer to a position as a forklift driver above the waterline. Despite the transfer, he continued to have anxiety symptoms for which he self-medicated and continues to self-medicate with alcohol. But despite his attempts at self medication, he continues to have a variety of symptoms and remains intolerant of confined spaces.
Mr Lyons was visibly distressed when he again recounted his experiences below the waterline and had to be comforted by his wife. Mr Lyons does not of his own volition, except in a therapeutic situation, talk about his war time experiences, avoids places that make him think about his experiences and becomes intensely distressed when he starts to talk about them. He also has a clear evidence (sic) of re-living phenomena both in flash backs, a marked distress in being in darkened and confined spaces and also has recurrent and distressing dreams. His wife says that sometimes he is so restless at night that she feels he is about ‘to kill her’. He likewise has symptoms of arousal, agitation, difficulty relaxing, the aforementioned difficulty sleeping and other symptoms of tension such as headaches. Clearly, he has had these symptoms for many years and they cause him clinically significant distress. I am therefore of the confident opinion that Mr Lyons suffers from a Chronic Post Traumatic Stress Disorder as a consequence of his naval service in particular that of his ten visits to Vietnam whilst with the Royal Australian Navy. His previously diagnosed anxiety disorder therefore is subsumed into his PTSD, his claustrophobic symptoms are likewise symptoms of PTSD and his alcohol abuse is as a direct consequence of his PTSD. I note that he binge drinks on occasion and his wife tells me that it is unpleasant to go out on social occasion with her husband on account of his predilection to abuse alcohol and that most nights he drinks 6 cans of beer.
…
As a final note, it has taken me a number of years to get to know Mr Lyons well. He has been for much of that time extraordinarily reluctant to talk about his psychiatric symptoms and experiences in the navy. It has only been in the past year or so that all of the relevant history has been disclosed to me and therefore it has only been very recently that I have been able to formulate my diagnosis of Mr Lyons as Post Traumatic Stress Disorder. I have no doubt that Mr Lyons suffers from a severe psychiatric disorder as a consequence of his experiences in naval service and having had a number of patients develop PTSD from scare charge explosion I note that all of them were stationed below waterline during the detonation of the depth (sic) charges and were either in an extremely noisy environment to such an extent that they were unable to hear a warning or in a very isolated part below the waterline that a warning would not ordinarily be given.” (T20, pp120-123)
15. A letter from Dr Kay to the VRB, dated 20 January 2009, states as follows:
“ Please find enclosed hand written notes since 2003, as requested in your letter dated 30 September 2008.
I remain of the opinion that Mr Lyons is suffering from chronic Post Traumatic Stress Disorder arising as a result of his experience being below the water line when percussion charges were exploded near by and that his previously diagnosed Anxiety Disorder is a manifestation of his PTSD as is likewise his claustrophobia.” … (T22, p 126)
16. In his oral evidence Dr Kay confirmed that the applicant has symptoms of Post Traumatic Stress Disorder (“PTSD”) and that he also suffers from Alcohol Abuse (currently in remission). Asked whether there was an alternative diagnosis applicable in the applicant’s case, he referred to generalised anxiety disorder and “anxiety disorder not otherwise specified”. Asked to express an opinion on the time of onset of anxiety disorder in the applicant’s case, Dr Kay opined that the onset of his anxiety disorder dated back to “the early ‘60s”, shortly after he experienced the explosion of scare charges during his RAN service. Dr Kay added, however, that he had “no doubt” that the applicant has PTSD.
The Evidence of Commodore Philip Mulcare
17. Commodore Philip Mulcare (RAN Rtd) confirmed that, on behalf of Writeway Research Service, following a request from the Department of Veterans’ Affairs, he conducted research into two incidents which the applicant claimed had occurred during his naval service, and he subsequently prepared a report, dated 18 October 2009, setting out the results of that research. That report was tendered in evidence (Exhibit R2).
18. In his report Commodore Mulcare described the first claimed incident as follows:
“ .. the recovery, by HMAS VAMPIRE’s boat, of two bodies from the river in Saigon in January 1962; the bodies were said to be those two (sic) American soldiers who had been murdered.”
As regards that matter, Commodore Mulcare’s report states as follows:
“3.HMAS VAMPIRE, with HMAS QUICKMATCH in company, made an official visit to Saigon from 25 – 29 January 1962 to celebrate Australia Day. At 0330 on 25 January both ships anchored off Vung Tau to embark the Australian Services Attache (in VAMPIRE) and Vietnamese Navy Liaison officers and pilots in both ships. They weighed anchor at 0410 and proceeded up the Saigon River arriving in the Port of Saigon at 0815. VAMPIRE fired a National Salute, which was returned by a Naval Saluting Battery ashore, and then both ships turned in the river before securing alongside in their assigned berth. VAMPIRE was starboard side to the wharf and QUICKMATCH berthed on VAMPIRE.
4.Thus began a busy and very successful visit. In HMAS VAMPIRE’s Reports of Proceedings (ROP) Captain A M Synnot commented that ‘The social programme in Saigon was active for the officers and ratings of both ships. Entertainments ranged from swimming and water skiing to dinner and cocktail parties. The attractive city and the generosity of the local communities combined to make the visit a memorable one for all’. Commander Doyle (HMAS QUICKMATCH) commented that it was ‘the most memorable and successful visit I have experienced in my naval career… Perhaps the most pleasing element of the whole visit was the way my ships company were entertained by members of the Australian, British and American communities. This is the only port in the Far East where this has occurred.’
5.I have not found any record of HMAS VAMPIRE recovering bodies from the Saigon River during the ship’s visit in January 1962. An incident of this nature would have cast a shadow over the visit and would have been recorded in the ship’s log and almost certainly mentioned in the ROP. There is no record of HMAS VAMPIRE’s boat being lowered before the ship berthed and it could not have been lowered during the visit as QUICKMATCH was alongside VAMPIRE’s port side. The recovery of bodies from the river was a matter for the local authorities and if any had been sighted, the appropriate course of action would have been to have one of the Vietnamese Navy liaison officers, who would have been present in the ship, inform the authorities concerned.
6. The inscription on the Vietnam Veterans Memorial in Washington DC reads:
‘ IN HONOR OF THE MEN AND WOMEN OF THE ARMED FORCES OF THE UNITED STATES WHO SERVED IN THE VIETNAM WAR. THE NAMES OF THOSE WHO GAVE THEIR LIVES AND THOSE WHO REMAIN MISSING ARE INSCRIBED IN THE ORDER THEY WERE TAKEN FROM US’.
7.A search of the memorial records indicates that three US servicemen died in January 1962, two in South Vietnam on 13 January and one in Laos on 28 January. Details are attached.”
19. The second claimed incident was described by Commodore Mulcare in his report as follows:
“ …[the applicant] was shocked by hearing the sound of scare charges going off, without warning, during his first visit to Vung Tau in HMAS SYDNEY in June 1965.”
As regards that matter Commodore Mulcare’s report states as follows:
“8.The Veteran was serving in HMAS SYDNEY when the ship, accompanied by HMAS DUCHESS and HMAS PARRAMATTA, anchored off Vung Tau at 0700 on 8 June 1965. Cargo operations commenced at 0900 and continued around the clock until loading was completed at 0430 on 11 June 1965. At 1000, the three ships weighed anchor at 1000 (sic) and proceeded to sea. This, SYDNEY’s first trooping/cargo voyage to Vung Tau was codenamed Operation TRIMDON. The Commanding Officer forwarded a separate detailed report on TRIMDON to the Australian Fleet Commander and consequently did not include any details of the stay in Vung Tau in the ship’s ROP. To date I have not located a copy of the TRIMDON report, but I have examined the ship’s log. There is also some general information in the escort ships’ ROPs and I have discussed the visit with a number of officers who were in HMAS SYDNEY at the time.
9.The principal threat to ships at anchor off Vung Tau was considered that of attack by enemy divers or floating mines. The tidal range in Vung Tau was about ten feet and the tidal stream normally ran at about three knots but could reach speeds of up to six knots during the wet season from April to November; the overflow of the local river system contained a lot of debris, including vegetation, particularly during the wet season. The tidal stream made the task of attack by free-swimming enemy divers very difficult, just as it made it difficult for ship’s divers to search the ship’s bottom except during periods of slack water ie approximately 30 minutes either side of high or low water. One concern was that swimmers could approach under cover of debris while another was that semi-submerged or submerged mines, attached together by line, could be hidden under debris, float down on ships, snag the anchor cable and end up on either side of the ship. To combat this threat defensive measures, collectively known as Operation Awkward, were put in place when ships anchored.
10. In SYDNEY in 1965, Operation Awkward measures included: -
·closing up skeleton Damage Control teams in the ship;
·posting armed sentries in some of the open spaces on 3 deck to watch for signs of any suspicious activity eg air bubbles, suspicious debris, that might indicate the presence of enemy divers;
·ship’s divers searched the anchor cable and the free area aft ie near the propellers and rudders, whenever tidal conditions were suitable.
11.While at anchor, the escort ships remained at Cruising Watches, with sensors and a proportion of the armament closed up ready to respond to any threats. In addition to measures similar to those in place in SYDNEY, they also deployed scare charges from ship’s boats, on patrol in the vicinity of the ships, as directed by SYDNEY. Scare charges may also have been deployed from the decks of the escort ships themselves when the tidal stream was slack. However, as explained in the attached statement by Lieutenant Commander Ken Cartwright, SYDNEY’s diving officer in 1965, they were not deployed from the deck of SYDNEY nor, as he recollects, from SYDNEY’s boats.
12.The scare charge generally used in 1965 was a one-pound (450 gram) charge fitted with a percussion fuse. They were and are a major deterrent as the explosion underwater causes death or serious injury to divers close to the explosion and disorientation at greater ranges. The sound of the explosion as heard in a ship depended on a range of factors including distance from the ship, depth of explosion, sea bed characteristics and a person’s position in the ship. If a charge exploded close by the hull of SYDNEY it probably would have been heard as a very loud, sharp thud by people who were in compartments below the waterline, near the explosion. Distant explosions, eg from charges thrown from ship’s boats 100 metres away may have been heard as a dull thud in the machinery spaces in Sydney.
13.I have been advised that Captain Crabb, SYDNEY’s Commanding Officer took pains to ensure that all personnel onboard were well briefed on the possible threats in Vung Tau and of the activities that would take place while the ship was in Vung Tau. This included regular personal briefings over the ship’s main broadcast. It is likely that these or other briefings included the fact that scare charges would probably be used while the ships were at anchor.
14In escort ships it was normal practice to warn the ship’s company before scare charges were thrown from the ship of (sic) from a boat close by. The same practice was probably followed in SYDNEY but I have not been able to confirm this. However, it is unlikely that specific warnings were given for distant scare charge explosions.”
The statement of Lieutenant Commander Cartwright, dated 4 July 2005, referred to in para 11 of Commodore Mulcare’s report (Attachment 6), is as follows:
“ I have been asked to comment on my experience as the Ship’s Diving Officer, in HMAS SYDNEY, during her stay in VUNG TAU Harbour, in June 1965. At the time I was a Lieutenant RANR on full time service and a qualified diver and diving supervising officer. Specifically, comment has been requested regarding the use of scare charges during this visit.
This was SYDNEY’s first trooping run to Vietnam and it had been estimated that the most likely threat to the ship would be from attack by enemy divers or floating mines. To counter this threat, we carried out what is called Operation Awkward, which involved, among other things, the ship’s divers searching the ship’s bottom, screws and cable at random, but frequent, intervals both day and night. To this end, the complete diving team slept in stretchers on the Quarterdeck, to be ready at a moment’s notice of dive. We could not dive while barges were actually being loaded, only during lulls in the unloading operation. We probably carried out about three dives during daylight hours each day and each night.
Another measure that can be used with Operation Awkward is to throw scare charges into the water, to deter enemy divers. A scare charge can cause death or serious injury to anyone in the water within close range (about 2 metres) and disorientation at greater ranges. The sound of the explosion can be heard within the ship, depending upon the depth at which the charge explodes, its proximity to the hull and one’s position within the hull. Scare charges may also be dropped from ship’s boats patrolling at approximately 100 metres from the ship. At that range I would think that at the most, they would have sounded like a dull thud to someone in a ship’s side compartment below the waterline.
Due to the random and frequent pattern of ship’s bottom searches scare charges, though available were definitely not thrown from the ship because of the dangers they could represent to our own divers. I do not recollect them being thrown from the ship’s boats but am 99% certain that they were not used during Trips 1 & 2. Normally scare charges would only have been used if it were suspected that enemy divers were in the vicinity of the ship or were sighted by one of our escort ships anchored nearby.
…”
[The Tribunal notes that relevant extracts from the Reports of Proceedings and ship’s log, and details of US casualties in Vietnam in January 1962, referred to in Commodore Mulcare’s report, are attached to that report.]
The Relevant Legislation
The VE Act
20. Section 9(1) relevantly provides:
“ for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“…for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The word “disease” is defined in s 5D(1) as follows:
“disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
Section 120, which deals with standard of proof, relevantly provides
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury…;
(b)that the disease was a war‑caused disease…; or
(c)that the death was war‑caused …;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…”
Section 120A relevantly provides:
“…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non‑warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease — it would not have occurred:
(i) but for the rendering of that service by the person; or
…”
The Statements of Principles
21. The relevant Statements of Principles, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, are set out below (see paragraphs 39-40).
Analysis and Findings
The relevant injury/disease
22. It is common ground that the applicant relevantly suffers from a psychiatric disorder, but the appropriate diagnosis of that psychiatric disorder is in dispute. That matter falls to be determined, in accordance with s 120(4) of the VE Act, to the Tribunal’s reasonable satisfaction – that is, on the balance of probabilities: Repatriation Commission v Cooke (1998) 90 FCR 307 at 312; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-635.
23. The medical evidence before the Tribunal included the abovementioned reports of Dr Fellows-Smith and Dr Kay, and the oral evidence of Dr Kay (see paragraphs 10-16 above).
24. Dr Fellows-Smith, who saw the applicant on three occasions in November 2002, opined in his report of 18 November 2002 that the applicant had presented with “Generalised Anxiety Disorder, Claustrophobia and secondary Alcohol Dependence Syndrome”. In making those diagnoses Dr Fellows-Smith addressed the diagnostic criteria for Generalised Anxiety Disorder and for “Specific Phobia” (in respect of the diagnosis of Claustrophobia) set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM-IV”), although he did not address the diagnostic criteria for Alcohol Dependence set out in DSM-IV. Dr Fellows-Smith expressly referred to the applicant’s service on board HMAS Sydney in Vung Tau, Vietnam, and his description of “being battened down below at action stations while scare charges were detonated to deter enemy divers”, and, although he regarded such an experience as “stressful”, he opined that it did “not fulfil the criteria for Post Traumatic Stress Disorder” in DSM-IV.
25. Dr Kay, who has been seeing the applicant since August 2003 and is continuing to treat him, initially (in his report of 24 September 2003) expressed agreement with Dr Fellows-Smith that the appropriate diagnosis in the applicant’s case was Generalised Anxiety Disorder, and that the applicant’s “disorder was not severe enough to qualify him for an alternative diagnosis such as a Post Traumatic Stress Disorder”. Dr Kay reiterated that opinion in his report of 3 August 2007 and based it on the applicant’s “being below the water line when scare charges were detonated near him” in his naval service. In that report, however, Dr Kay added that a “case could [b]e made that he suffers from the alternative diagnosis of Post Traumatic Stress Disorder on the basis that he was fearful of his life when the scare charges were detonated…”.
26. In a subsequent report, dated 16 September 2008, Dr Kay set out a more detailed history of the applicant’s experiences involving the detonation of scare charges and his subsequent symptoms (see paragraph 14 above) and, on that basis, he opined that the applicant suffered from chronic Post Traumatic Stress Disorder (“PTSD”) and that
·his previously diagnosed anxiety disorder was “subsumed into his PTSD”;
·his claustrophobia symptoms were “symptoms of PTSD”; and
·his alcohol abuse was a “direct consequence of his PTSD”.
Dr Kay reiterated that opinion in his report of 20 January 2009 and in his oral evidence.
27. Criterion A of the diagnostic criteria for PTSD set out in DSM-IV is as follows:
“A.The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror.”
Dr Kay’s diagnosis of PTSD was, of course, based on his acceptance of the relevant history given to him by the applicant – including, most importantly, the history of the “traumatic event” said to have precipitated the onset of PTSD. In the applicant’s case, the relevant “traumatic event” – as described by the applicant to Dr Kay – was his hearing, without any warning, loud explosions occurring close to the outside of the hull of HMAS Sydney, which was at anchor off Vung Tau, South Vietnam in June 1965, when he was working in the ship’s engine room below the water line, which “came as an enormous shock” to him and caused him to feel that the ship was under attack and that he was “about to die” (see, in particular, Dr Kay’s report of 16 September 2008 set out in paragraph 14 above). The validity of Dr Kay’s diagnosis of PTSD in the applicant’s case depends, in the Tribunal’s opinion, on the truth and accuracy of the abovementioned history.
28. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the abovementioned history, on which Dr Kay’s diagnosis of PTSD was based, is true and correct. The Tribunal notes the Writeway Research Service report of Commodore Mulcare, including, in particular, the attached statement of Lieutenant Commander Cartwright, the Diving Officer on HMAS Sydney during her stay in Vung Tau Harbour in June 1965, in which he stated that, during that stay, scare charges were “definitely not thrown from the ship” and that he did not recollect them being thrown from the boats patrolling the ship but that he was “99% certain” that they were not used during that trip. On the basis of that evidence, the Tribunal is reasonably satisfied that, during the time when HMAS Sydney was at anchor off Vung Tau in June 1965, scare charges were not thrown either from the ship itself or from the ship’s patrol boats and that, accordingly, contrary to the history given to Dr Kay by the applicant, no explosions of scare charges occurred close to, or in the vicinity of, the ship’s hull. Nor is the Tribunal reasonably satisfied that, at any relevant time during that period, any event occurred which caused the applicant to fear for his life or otherwise to experience “intense fear, helplessness, or horror” (as required by Criterion A (2) of the DSM – IV diagnostic criteria for PTSD) – contrary to Dr Kay’s understanding.
29. Accordingly, the Tribunal is of the opinion that Dr Day’s diagnosis of PTSD in the applicant’s case is based on a false history and cannot be regarded as reliable. The Tribunal, therefore, is not reasonably satisfied that the applicant presently suffers, or at any material time has suffered, from PTSD.
30. Dr Kay, in his oral evidence, was prepared to accept an alternative diagnosis of Generalised Anxiety Disorder, or Anxiety Disorder Not Otherwise Specified, in the applicant’s case, in the event that the true circumstances of the applicant’s RAN service did not support a diagnosis of PTSD. In his earlier reports of 24 September 2003 and 3 August 2007, it will be recalled, Dr Kay had opined that Generalised Anxiety Disorder, rather than PTSD, was the appropriate diagnosis in the applicant’s case. A similar opinion had been expressed by Dr Fellows-Smith in his report of 18 November 2002.
31. Although the Tribunal has reservations as to whether the diagnosis of Generalised Anxiety Disorder made by Dr Fellows-Smith and initially supported by Dr Kay was made on the basis of a true and accurate history, given that it was at least partly based on the abovementioned history of explosions of scare charges which the Tribunal does not accept, the respondent has conceded that the applicant “has a psychiatric disorder on the anxiety axis of DSM-IV” and has submitted that the appropriate diagnosis is Generalised Anxiety Disorder.
32. Having regard to the abovementioned considerations, the Tribunal, not without reservations, is prepared to accept that the applicant suffers from Generalised Anxiety Disorder, and it so finds.
33. The Tribunal is, furthermore, satisfied, on the basis of Dr Kay’s evidence, that the applicant also suffers from Alcohol Abuse (in remission) and that that condition is a direct consequence of his Generalised Anxiety Disorder, and it so finds.
34. Although Dr Fellows-Smith also made a diagnosis of Claustrophobia in the applicant’s case, and Dr Kay opined that the applicant has claustrophobic symptoms, the applicant did not contend before the Tribunal that he was suffering from Claustrophobia as a stand-alone condition. Rather, he contended, on the basis of Dr Kay’s opinion, that his claustrophobic symptoms are symptoms of PTSD. The Tribunal, as previously mentioned, is not reasonably satisfied that the applicant suffers from PTSD and it accordingly does not accept his abovementioned contention.
35. The Tribunal finds, therefore, that the applicant relevantly suffers from two psychiatric disorders, namely, Generalised Anxiety Disorder, and Alcohol Abuse (in remission). The Tribunal also finds that each of those psychiatric disorders is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.
Is the applicant’s Generalised Anxiety Disorder a war-caused disease, within the meaning of s 9 of the VE Act?
36. This question is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the .. disease … with the circumstances of” the applicant’s operational service. If a relevant Statement of Principles (“SoP”), determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
37. For the purpose of determining whether the applicant’s Generalised Anxiety Disorder (“GAD”) is a war-caused disease, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s GAD with the circumstances of his operational service?
38. The Tribunal, having considered the whole of the material before it, is of the opinion that that material raises two separate hypotheses connecting the applicant’s GAD with the circumstances of his operational service. Those hypotheses, in general terms, are as follows (in chronological order):
·the applicant’s experience of seeing two dead bodies, which had been floating in the water, brought on board HMAS Vampire in Saigon Harbour, South Vietnam in January 1962, resulted in his contracting GAD (“the Saigon hypothesis”);
·the applicant’s experience of hearing, without any warning, loud explosions occurring close to the outside of the hull of HMAS Sydney, which was at anchor off Vung Tau, South Vietnam, in June 1965, when he was working in the ship’s engine room below the water line resulted in his contracting GAD (“the Vung Tau hypothesis”).
The relevant SoP
39. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning anxiety disorder (including GAD). The SoP which is presently in force is Statement of Principles concerning anxiety disorder No 101 of 2007 (as amended by Instrument No 42 of 2010). That SoP (“the current SoP”) relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b)For the purposes of this Statement of Principles, ‘anxiety disorder’ means generalised anxiety disorder; anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and
…
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(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
…
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;
…”
40. The current SoP revoked Instrument No 1 of 2000 concerning anxiety disorder (“the 2000 SoP”) which was in force when the Repatriation Commission made its decision in this matter on 30 November 2006. The 2000 SoP relevantly stated:
“…
Kind of injury, disease or death
2.(a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b)For the purposes of this Statement of Principles, ‘anxiety disorder’ is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified,…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans,…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
‘ severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…”
41. The proper approach for the Tribunal to take in this matter is, first, to apply the current SoP, and, if the application of that SoP does not result in a determination that the applicant’s GAD is a war-caused disease, then to apply the SoP which was in force when the Repatriation Commission made its decision in this matter on 30 November 2006, namely, the 2000 SoP: Repatriation Commission v Gorton (2001) 110 FCR 321.
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service?
42. Pursuant to s 120A(3) of the VE Act a hypothesis raised by the material before the Tribunal, connecting the applicant’s GAD with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP.
The current SoP ― the Saigon hypothesis
43. The only relevant provisions of the current SoP which might arguably uphold the Saigon hypothesis is subpara (iii) of cl 6(a), together with cl 5.
44. As regards subpara (iii) of cl 6(a), the Saigon hypothesis includes the applicant’s “viewing corpses … as an eyewitness” and, therefore, his experiencing “a category 1B stressor” (as defined in cl 9). The material before the Tribunal also includes the evidence of Dr Kay to the effect that the clinical onset of the applicant’s GAD occurred within 5 years of the applicant’s experiencing the category 1B stressor in the course of his operational service in the relevant period, namely, 25-29 January 1962.
45. Accordingly, in the Tribunal’s opinion, the Saigon hypothesis is upheld by subpara (iii) of cl 6(a), together with cl 5, of the current SoP and, pursuant to s 120A(3) of the VE Act, that hypothesis is a reasonable hypothesis.
The current SoP ― the Vung Tau hypothesis
46. The only relevant provision of the current SoP which might arguably uphold the Vung Tau hypothesis is subpara (ii) of cl 6(a), together with cl 5.
47. As regards subpara (ii) of cl 6(a), the Vung Tau hypothesis does not include the applicant’s “experiencing a life-threatening event”, or experiencing any of the other “severe traumatic events”, referred to in the definition of “a category 1A stressor” in cl 9 of the current SoP.
48. Accordingly, in the Tribunal’s opinion, the Vung Tau hypothesis does not accord with subpara (ii) of cl 6(a) of the current SoP and, pursuant to s 120A(3) of the VE Act, that hypothesis is not a reasonable hypothesis.
Applying the current SoP, is the applicant’s GAD a war-caused disease?
49. Pursuant to s 120(1) of the VE Act, the Tribunal must determine that the applicant’s GAD is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s GAD is a war-caused disease if the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service.
50. The Tribunal, as previously mentioned, is of the opinion that, as regards the Vung Tau hypothesis, the material before it does not raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service.
51. On the other hand, the Tribunal, as also previously mentioned, is of the opinion that, as regards the Saigon hypothesis, the material before it does raise a reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service. The question then arises, for the purposes of s 120(1) of the VE Act, whether or not the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s GAD is a war-caused disease.
52. The material before the Tribunal regarding the alleged factual circumstances underpinning the Saigon hypothesis chiefly includes:
·the oral evidence of the applicant (referred to in paragraph 8 above);
·letter from the applicant to the Department of Veterans’ Affairs, dated 30 April 2003 (T6, p 21);
·handwritten statutory declaration of Neil Duncan … [the surname is illegible but may be “Gerecke”], dated 28 April 2003; and
·Writeway Research Service report of Commodore Mulcare, dated 18 October 2009 (Exhibit R2 – see paragraph 18 above).
53. The abovementioned letter from the applicant to the Department of Veterans’ Affairs, dated 30 April 2003, which was written following an earlier decision of the Repatriation Commission on 3 February 2003 which determined that the applicant’s anxiety disorder was not war-caused, states as follows:
“ I would like to appeal a decision for an anxiety disorder made on 3rd February 2003. The reason being it was made on a claim that it was caused by the sinking of the Voyager in 1964. But that is not the problem that caused my health depression and anger. It was caused in Saigon Harbour between January 25/29 1962.
I was on the HMAS Vampire and the duty watch noticed bodies floating in the river. We put a ship’s boat over the side to retrieve them and it was later diagnosed (sic) as two American soldiers they had been murdered by having their chest skinned by torture and their mouths sown (sic) up and thrown into the river to drown. It was a pretty horrific experience for me and in those days there was no counselling or any other medical help and it has left me with bad memories and nightmares ever since. I mentioned this to my psychiatrist, James Fellow Smith (sic), but he seemed more interested in the Voyager mishap than the real problem mentioned above.
Trusting this letter may put the matter back in true context.”
54. The abovementioned handwritten statutory declaration (which was enclosed with the applicant’s abovementioned letter) appears to state as follows:
“ On the 25th – 29th January 1962 I was a member of the HMAS Vampire crew tied up in Saigon harbour. It was bought to notice by the duty crew that there were two bodies floating in the river. A ship’s boat was sent out to retrieve them and it was discovered that they were two American soldiers. They had been tortured by having the skin taken off their chests and mouths sewn up and thrown into the river to drown. The crew were pretty traumatized about this event and I know it has had a lasting effect on myself. I feel sure that it has affected the crew who were on the ship during that tour. I feel sure that if there had been counselling after this event it would have saved a lot of men nightmares and psychological problems.”
55. Having regard to the relevant contents of Commodore Mulcare’s report and attachments thereto referred to in paragraph 18 above, the Tribunal, notwithstanding the abovementioned evidence and letter of the applicant and the abovementioned statutory declaration, is, on the basis of that report, satisfied beyond reasonable doubt that the alleged event involving the recovery of two dead bodies from Saigon Harbour in the period 25-29 January 1962, as described by the applicant in his evidence and letter, did not occur. The Tribunal notes that the applicant, although he maintained in his oral evidence that that event did occur, played down that matter and stated, contrary to evidence he had given before the VRB on 10 December 2003 (T8, p 31) and on 1 April 2009 (Exhibit R1, p 13) and contrary to the contents of his abovementioned letter of 30 April 2003, that it had upset him “a bit” but “not too much”. The Tribunal, accordingly, attaches little weight to the applicant’s evidence and also to the abovementioned statutory declaration (whose author was not called as a witness at the hearing). The Tribunal also notes a letter from William Harrison, dated 9 October 2003, which was provided to the Department of Veterans’ Affairs by the applicant’s former advocate. In that letter Mr Harrison stated that he was serving on board HMAS Vampire when it was berthed in Saigon Harbour on 25-29 January 1962 and that he had been asked if he could remember “any significant events of that time”. He then referred to his recollections which generally included the presence of very high security provided by armed guards and escorts, but which did not include any reference to dead bodies being recovered from the harbour and brought aboard the ship.
56. Because the Tribunal is satisfied, beyond reasonable doubt, that the alleged event involving the recovery of two dead bodies from Saigon Harbour and their being brought aboard HMAS Vampire in the period 25-29 January 1962 ― the event which underpins the entire Saigon hypothesis ― did not occur, it follows that the Tribunal is satisfied, beyond reasonable doubt, that the Saigon hypothesis is false and that, accordingly, there is no sufficient ground for determining that the applicant’s GAD is a war-caused disease: see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570
57. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal, applying the current SoP, finds that the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act.
The 2000 SoP ― the Vung Tau hypothesis
58. The only relevant provision of the 2000 SoP which might arguably uphold the Vung Tau hypothesis is subpara (ii) of cl 5(a), together with cl 4.
59. As regards the Vung Tau hypothesis, the material before the Tribunal includes:
·the applicant’s evidence that, when serving in the engine room of HMAS Sydney, when at anchor off Vung Tau, South Vietnam in June 1965, the unexpected sound of loud explosions just outside the ship’s hull “scared the merry hell out of” him and caused him to wonder whether the ship was under attack and its side would be blown out, and to fear for his life;
·Dr Kay’s evidence that it was his opinion that the onset of the applicant’s anxiety disorder occurred shortly after he experienced the explosion of scare charges during his RAN service.
The Tribunal is prepared to treat that material as meeting subpara (ii) of cl 5(a), together with cl 4, of the 2000 SoP in that it involves the applicant’s experiencing a “severe psychosocial stressor” (as defined in cl 8), in the course of his operational service, within the period of two years immediately preceding the clinical onset of his GAD.
60. Accordingly, in the Tribunal’s opinion, the Vung Tau hypothesis is upheld by subpara (ii) of cl 5(a), together with cl 4, of the 2000 SoP and, pursuant to s 120A(3) of the VE Act, that hypothesis is a reasonable hypothesis.
Applying the 2000 SoP, is the applicant’s GAD a war-caused disease?
61. Given that the Tribunal is of the opinion that the Vung Tau hypothesis is a reasonable hypothesis, it must, pursuant to s 120(1) of the VE Act, determine that the applicant’s GAD is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.
62. The material before the Tribunal regarding the alleged factual circumstances underpinning the Vung Tau hypothesis chiefly includes:
·the oral evidence of the applicant (referred to in paragraph 7 above); and
·Writeway Research Service report of Commodore Mulcare, dated 18 October 2009 (Exhibit R2 – see paragraph 19 above).
63. Having regard to the relevant contents of Commodore Mulcare’s report and attachments thereto ― in particular, the statement of Lieutenant Commander Cartwright ― referred to in paragraph 19 above, the Tribunal (as previously discussed in paragraph 28 above) does not accept the applicant’s evidence that, while he was working in the engine room of HMAS Sydney when at anchor off Vung Tau in June 1965, loud explosions occurred just outside the ship’s hull. Nor does the Tribunal accept that, at any time when the applicant was serving on HMAS Sydney when at anchor off Vung Tau in June 1965, any event occurred that evoked substantial distress in him and caused him to experience a “severe psychosocial stressor”, within the meaning of subpara (ii) of cl 5(a) of the 2000 SoP.
64. As regards Dr Kay’s opinion, as stated in his report of 3 August 2007 (see paragraph 13 above) and in his oral evidence (see paragraph 16 above), that the onset of the applicant’s anxiety disorder occurred “immediately after”, or “shortly after”, the applicant experienced the explosion of scare charges when serving on board HMAS Sydney, below the water line, off Vung Tau in June 1965, the Tribunal notes that:
·that opinion was based on a history given to Dr Kay by the applicant which the Tribunal has found to be false (see paragraphs 28-29 above);
·the only objective basis for that opinion provided by Dr Kay was the applicant’s “request for transfer out of where he was previously serving below the water-line” (see his report of 3 August 2007 set out in paragraph 13 above) ― a basis which the Tribunal regards as far from convincing; and
·that opinion does not sit well with Dr Kay’s statement in his report of 24 September 2003 (see paragraph 12 above) as follows:
“ On reviewing his naval records there was no evidence of anxiety symptoms being noted during his naval service and on that basis I think he is unlikely to be successful in pursuing his claim with the Department of Veterans’ Affairs.”
Accordingly, the Tribunal attaches little weight to Dr Kay’s opinion.
65. Having regard to the whole of the material before it, the Tribunal is satisfied, beyond reasonable doubt, that the alleged factual circumstances underpinning the Vung Tau hypothesis, namely, the occurrence of loud underwater explosions close to, or in the vicinity of, the hull of HMAS Sydney when at anchor off Vung Tau, South Vietnam in June 1965, did not occur, and that the Vung Tau hypothesis is false. As previously stated (see paragraph 56 above), the Tribunal is also satisfied, beyond reasonable doubt, that the Saigon hypothesis is false. Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s GAD is a war-caused disease.
66. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal, applying the 2000 SoP, finds that the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act.
Conclusion – the applicant’s GAD is not war-caused
67. The Tribunal concludes, therefore, that, by reference to the current SoP and the 2000 SoP, the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act.
Is the applicant’s Alcohol Abuse (in remission) a war-caused disease, within the meaning of s 9 of the VE Act?
68. The Tribunal has found (see paragraph 33 above) that the applicant’s Alcohol Abuse (in remission) is a direct consequence of his GAD. It is common ground that, absent a finding that the applicant has PTSD, the only basis on which the applicant’s Alcohol Abuse (in remission) could be determined to be a war-caused disease is a determination that his GAD is a war-caused disease.
69. It follows, therefore, from the Tribunal’s determination that the applicant’s GAD is not a war-caused disease, within the meaning of s 9 of the VE Act, that the Tribunal likewise determines that the applicant’s Alcohol Abuse (in remission) is not a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
70. For the above reasons, the Tribunal:
·varies the decision under review by determining that the applicant suffers from Alcohol Abuse (in remission) instead of Alcohol Dependence; and
·affirms that decision, as so varied.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Brigadier A G Warner, Member
Signed: sgd E Jordan .....................................................................................
Associate
Date of Hearing 8 June 2010
Date of Decision 20 July 2010
Representative of the Applicant Mr T RobbinsRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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