Wilson and Repatriation Commission
[2006] AATA 999
•24 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 999
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/623
| VETERANS’ APPEALS DIVISION | ) |
| Re | JAMES WILSON |
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
| Tribunal | Mr RG Kenny, Member |
Date 24 November 2006
Place Brisbane
| Decision | The Tribunal affirms the decision under review. |
...................[Sgd]...........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions –– depressive disorder and alcohol abuse and dependence diagnosed – effects of detonation of scare charge - no psychosocial stressor – no experiencing of a severe stressor - no clinical onset of depressive disorder within two years - no reasonable hypothesis of relevant relationship to service raised – conditions not war-caused
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14, 120, 120A
Repatriation Commission v Smith (1987) 15 FLR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
White v Repatriation Commission [2004] FCR 633; (2004) 39 AAR 67
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission and Cornelius [2002] FCA 750
Youngnickel v Repatriation Commission [2004] FCA 1691
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398; (2002) 74 ALD 68; (2002) 36 AAR 484
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 423; (2004) 40 AAR 486
Woodward v Repatriation Commission (2003) 75 ALD 420; [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 37 AAR 424
Repatriation Commission v Stoddart (2003) 38 AAR 176; [2003] FCAFC 300; (2003) 134 FCR 392
REASONS FOR DECISION
| 24 November 2006 | Mr RG Kenny, Member |
Background
James Wilson (the applicant) undertook a period of service with the Royal Australian Navy (the RAN) from 4 July 1963 until 5 July 1968. On 18 June 2004, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “emotional problems” and alcohol abuse and dependence which he contended were related to his RAN service. On 28 October 2004, the respondent accepted that Mr Wilson suffered from depressive disorder and alcohol dependence but determined that those conditions were not related to his service. The Veterans’ Review Board (the Board) affirmed the decision on 3 August 2005 and Mr Wilson now seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
At the hearing, Mr Wilson was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr M Smith. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Service and Standard of Proof
Mr Wilson was born on 16 July 1947 and was 15 years of age when he enlisted in the RAN. After 12 months of recruit training he was categorised as a naval airman. Subsequently, he completed a marine engineering course and became a stoker. He rendered periods of eligible war service in the form of operational service, as provided for in sections 7 and 6C, respectively, of the Act. This was in 1965 on HMAS Melbourne, in 1966 on HMAS Vampire and, in 1966 and 1967, on HMAS Sydney. One voyage, on HMAS Vampire, was from Manus Island to Hong Kong from 27 April 1966 to 6 May 1966. This included a period from 4 May 1966 to 6 May 1966 in Vung Tau Harbour in South Vietnam.
The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Smith (1987) 15 FLR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in subsection 120(1) of the Act which reads:
“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.”
The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Submissions
Mr Clutterbuck contended that the appropriate diagnoses for Mr Wilson’s psychiatric conditions were depressive disorder and alcohol abuse or dependence. He submitted that each of the conditions was directly related to a stressful experience involving the detonation of a scare charge whilst Mr Wilson was carrying out his duties as a stoker in May 1966 when HMAS Vampire was in Vung Tau Harbour. In alternative submissions, he contended that the incident was responsible for the alcohol-related condition, or for its aggravation, with subsequent development of depression; or that it was responsible for the depressive disorder which, in turn, precipitated alcohol abuse or dependence.
Mr Smith submitted that Mr Wilson suffered from a mood disorder due to alcohol abuse, which was not related to his RAN service. He contended that the latter condition developed in the mid to late 1990s when he was having difficulties in the workplace.
The Applicant
Mr Wilson served on HMAS Vampire as a stoker in the boiler room. He was working in that capacity with two other seamen and a chief petty officer (CPO) when the vessel arrived in Vung Tau Harbour. He described the boiler room as a pressurised area with only one exit/entry point through an air-lock. He only realised that the vessel had arrived in the harbour when it came to a stop. Whilst in the harbour, they were required to maintain pressure because the propellers were routinely turned over at approximately 20 minute intervals. His shift involved working four hours on duty followed by four hours off duty. On one of his work shifts shortly after arrival in the harbour, Mr Wilson heard an “almighty bang” which frightened him so much that he wet himself. He feared that the vessel was under enemy attack. He was working below the water line and, initially, he thought that he was going to die. However, within minutes, he was calmed down by the CPO. Subsequently, he learned that the noise came from the detonation of a scare charge. He had never experienced such a sensation before as he had not received training in the use of scare charges and was not aware that these would be detonated periodically in the water around the vessel to deter enemy divers. Mr Wilson believes that this incident was responsible for the development of his subsequent depression and alcohol dependence. He said that, since his experience in Vung Tau, he has had frequent nightmares in which he screams and tears at the sheets. He sees animals and birds which are coming at him and he described his biggest dread as the things in his dream, which he was unable to see but feared were there.
Mr Wilson’s evidence was that the scare charge was responsible for damaging a “plumber” box which contained lubricant for a bearing on the propeller shaft of the vessel. The box cracked and was drained of lubricant resulting in damage to the bearing which prevented the use of one of the propellers. This was repaired, subsequently, in Singapore.
Mr Wilson said that he consumed very little alcohol prior to the incident with the scare charge. However, he recalled two instances where he had become intoxicated prior to that event. The first of these was in 1964, at 17 years of age, when he fell into an alcoholic coma after consuming whisky. He required hospitalisation. He described this as a “one off” which was an act of “bravado” in wanting to be a “big time sailor” and also a reaction by him to hearing that his brother had survived the sinking of HMAS Voyager on which he was then serving. He said that, at the time, a doctor told him that if he “kept going like that” he “wouldn’t get past 21 years of age”. He recalled another occasion when he was in an alcoholic coma after drinking and getting into a fight on shore leave in Singapore. This was in March 1966.
Mr Wilson referred to the period when HMAS Vampire was undergoing repairs in Singapore after leaving Vung Tau. He had two or three days of shore leave. He spent his time sight-seeing and did not consume any alcohol because he was too “wide-eyed” as a tourist during that time. However, he said that, on later occasions as the “tourist thing” wore off, he drank heavily and did so because he knew that he would have to go back to Vung Tau. He found that alcohol made him feel better and helped him to relax. Mr Wilson said that heavy alcohol consumption got him into trouble and he recalled occasions when he had fights with other sailors, when he “jumped ship” and when he served a prison sentence in Holsworthy. When he was at sea, he would drink his beer ration but always managed to carry out his duties and would treat his sea time as an opportunity to “dry out”. However, when he was on shore leave, he would drink in hotels all day and night.
Mr. Wilson outlined aspects of his post-service life. He was married in September 1968 and had a variety of jobs including labouring work, swimming pool construction and manufacturing various chemicals. He described a good family life and no other traumas in his life apart from the episode at Vung Tau. He continues to consume alcohol heavily. He recalled an episode which occurred in March 2004 when he was driving his vehicle and suddenly started crying. He went to his local doctor who prescribed medication for anxiety and depression. He also went to see a psychiatrist, Dr Ivan Holm, and has now seen him on five or six occasions. He described Dr Holm as being very helpful to him. He also saw a second psychiatrist, Dr David Alcorn, with whom he felt he had no rapport.
Mr Wilson completed a statement in which he made reference to aspects of his alcohol consumption. He referred to his first 12 months in the RAN when he was undergoing recruit training, which began when he was still 15 years of age. It was the practice of the RAN to provide young recruits with a family to “adopt” him during his training. He wrote:
I was adopted by Mr. and Mrs. ---- for most of my time in recruitment, alcohol was available due to the fact that Mr.---- was gainfully employed at the Swan brewery. At mid recruitment, I received xmas holidays in which being in a household of military service I had ample opportunity to consume alcohol, the availability of entry to the RSL and to various establishments in the city and suburbs (noting that legal consumption of alcohol) was 21 years of age in Queensland and 18 years of age in New South Wales.
Mr Wilson then referred to spending time in Sydney at the Paragon Hotel at Circular Quay with his brother who had survived the sinking of the Voyager in February 1964. He also referred to a period of time when he was serving on HMAS Melbourne and wrote:
[D]uring that period of time I was but 17 + years old and drinking well without any remorse, beer was 20 cents a large can on the carrier, weather permitting, and 10 cents a can (2 of) on the escorts, so I must confide in you that the window of opportunity was forever open.
“Cerebus” and stokers course, “Castlemaine” ww2 corvette, once again the window opens, wet canteen, (5 cents/6 pence ) a pot, [W]hite [E]nsign [C]lub, alcohol available, am now 18+ years old, Cerebus had its own brew which would blow the arse off any saint that professed to be a top drinker.
Mr Wilson’s statement continued with references to other aspects of service including many occasions of being punished for excessive alcohol consumption and to his posting to HMAS Sydney for four trips in 1967. He then referred to the need to drink to excess which was “provided by the insulting treatment of our own people and the indignity of having to deny myself the right to wear the ‘Queens Uniform’ in public”……He also referred to what he considered to be his unfair dismissal from the RAN and wrote:
On discharge I was still 20 years of age, so when I went to join the (RSL) they denied my application due to the fact that I was not 21 years of age, I had been drinking there since I was 15 and a half without question.
In another statement, Mr Wilson referred to his feelings on hearing of the Voyager sinking and learning from his father that his brother had survived. He considered that he had “already learned to drink and come to accept that drinking was an answer” to his woes.
Medical Evidence
Dr Holm has been Mr Wilson’s treating psychiatrist since May 2004. He said that he relied upon the reporting by Mr Wilson in giving an opinion on the relationship between his health problems and his service. He provided reports dated 10 August 2004 and 31 May 2006. He diagnosed Mr Wilson as suffering from alcohol abuse and dependence as well as depressive disorder or dysthymia which he described as depression of fluctuating severity. He referred to various stressors in Mr Wilson’s life including a period of recognised depression 20 years earlier following his father’s suicide as well as a period some four or five years earlier when his work became more stressful. He also referred to incidents which occurred during Mr Wilson’s RAN service and noted the scare charge incident in Vung Tau Harbour. He expressed the opinion, in his first report, that, if the scare charge incident were identified as a psychosocial stressor, it could be responsible for the development of his depressive disorder as well as his alcohol problems. He opined that, although Mr Wilson was not treated for psychiatric problems at that time, it was likely, in retrospect, that he suffered symptoms of depression in the final part of his service. However, in his second report, he indicated that it was very difficult to determine whether he developed depression and alcohol abuse at the same time or whether the alcohol abuse developed initially and led secondarily to depressive symptoms. He also agreed with Dr Alcorn that Mr Wilson’s major problem has been with alcohol dependence and that his depressive symptoms, described by Dr Alcorn as dysthymia, could be considered at least partly as a secondary phenomenon to his alcohol dependence.
Dr Alcorn saw Mr Wilson in January 2006 and he provided a report, dated 24 February 2006. He excluded a diagnosis of post traumatic stress disorder and diagnosed mood disorder due to alcohol abuse or, less likely, a dysthymic disorder. Dr Alcorn said that he preferred the diagnosis of mood disorder because, where alcohol dependence or abuse is present, a diagnosis of major depressive disorder or dysthymia cannot be made. Dr Alcorn said that the scare charge incident did not appear to be an objectively threatening psychosocial stressor. However, he opined that if such a determination was made, it could have been sufficient to precipitate alcohol dependence provided there was no evidence of pre-existing alcohol abuse. He considered that an increase in a previous alcohol consumption pattern was not excluded. However, he also said that the description given by Mr Wilson of the incident was vague – unlike descriptions commonly given of a frightening incident where details are usually recalled vividly. Dr Alcorn said that he had tried very hard to obtain details from Mr Wilson about the incident. He said that he was not told that the boiler room was a pressurised room with only one exit, that he wet himself, or that the CPO had spoken to him afterwards. He noted Mr Wilson’s references to having problems at work some 4 to 5 years earlier. This involved the death of his long term supervisor and friend. He also noted Mr Wilson’s reference to workplace changes thereafter with which he had difficulty. He was of the opinion that these events, along with the effects of alcohol abuse, constituted the precipitating event for his mood disorder. Dr Alcorn conceded that the episode of alcoholic coma in 1964 was understandable in light of Mr Wilson learning of the safety of his brother following the sinking of the Voyager - although he noted in his report, that Mr Wilson told him that he “had been using alcohol since he was 16 years of age”.
other evidence
Mr Wilson‘s service medical records reveal that he was given medical treatment on two occasions prior to his experience in Vung Tau Harbour. The first of these was in August 1964 when he was diagnosed as suffering from an alcoholic coma following the ingestion of spirits. The second was in March 1966. That entry refers to him as having been involved in a brawl after he had been drinking during a period of shore leave in Singapore. He was diagnosed with “alcoholic intoxication” and hospitalised for 3 days.
In his initial claim, Mr Wilson was asked to indicate why his service had contributed to his emotional problems. He wrote: “Responsibility of command”. For his alcohol abuse or dependence, he wrote: “The demand of my job about ship”.
Diagnosis
The Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM IV) lists the diagnostic criteria for depressive disorder. It provides that the symptoms of that condition should not be due to various factors including alcohol. I have noted the reference to this by Dr Alcorn. However, Dr Holm has had the opportunity of observing the range of symptoms displayed by Mr Wilson over several visits and many months. His opinion is that, in Mr Wilson’s case, distinct diagnoses can be made for depressive disorder and alcohol abuse or dependence and I am satisfied that, on the balance of probabilities, his opinion should be accepted.
The Statements of Principles for these conditions, in so far as relevant, read:
Instrument No. 58 of 1998- depressive disorder
5(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
5(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;
“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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Instrument No. 76 of 1998 - alcohol abuse and dependence
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse
“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;
Principles of Causation
The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. I am satisfied that the scare charge incident described above constitutes an hypothesis of a relationship between Mr Wilson’s operational service and each condition of depressive disorder and alcohol abuse and dependence.
The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. This has been done above. For depressive disorder, factor 5(b) is relevant for a direct causal association between the scare charge detonation and the development of the condition; factor 5(c) is relevant for the onset of the condition where it was preceded by alcohol abuse and dependence. For alcohol abuse and dependence, factor 5 (a) is relevant for the onset of the condition where it was preceded by depressive disorder; factor 5 (b) is relevant for a direct causal association between the scare charge detonation and the development of the condition; factor 5 (d) is relevant for direct causal association between the scare charge detonation and the worsening of a previously existing condition of alcohol abuse and dependence.
The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
depressive disorder: factor 5(b)
In order to constitute an identifiable occurrence for the purposes of the definition of a severe psychosocial stressor and factor 5(b), an event described by Mr Wilson must be one which, subjectively, evoked feelings of substantial distress in him as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence: White v Repatriation Commission [2004] FCR 633. The examples of "identifiable occurrences" contemplated by the Statement of Principles as psychosocial stressors cover a wide range of circumstances which suggest feelings which extend over a time-frame and which thereby have a social dimension to them. This is unlike stressors as defined in other Statement of Principles such as that for alcohol abuse and dependence. The material in relation to the detonation of the scare charge includes the unchallenged evidence that it was sufficient to damage a component of the ship. No material was provided by the respondent from the records of HMAS Vampire or elsewhere to confirm or deny that there was any such damage or that it was caused in the manner described by Mr Wilson. This points to an effect from a scare charge greater in this case than has been the situation in previous accounts of such events. Mr Wilson described a fear of death at the time. Nevertheless, this was brief because of the intervention of the CPO. There was no evidence that Mr Wilson was unable to continue with his duties and, although the material, taken at its highest from Mr Wilson’s perspective, may point to some distress in both an objective and subjective sense, it does not point to a level of distress which might be described as substantial. Accordingly, the material in relation to the scare charge does not point to the satisfaction of factor 5(b) in the Statement of Principles as a severe psychosocial stressor.
In addition to the need for a severe psychosocial stressor, factor 5(b) in the Statement of Principles for depressive disorder requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. Also, all of the symptoms of the disease need to be shown within the two year period: see Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691. The consideration of clinical onset is not confined to the matters favourable to the applicant: see Hardman v Repatriation Commission[2004] FCA 1174. The evidence of Dr Holm is, to an extent, favourable to Mr Wilson. In his first report, he considered that it was likely that Mr Wilson suffered symptoms of depression in the final part of his service. He does not conclude that all of the symptoms of depression were present at that time and he referred to the “first obvious period of recognised depression” as occurring about 20 years before he saw him in 2004 with further recognition in more recent years. In his second report, he noted that Mr Wilson developed “some symptoms” of at least dysthymia during his service but without it being clearly identified. Those descriptions do not point to a diagnosis of depressive disorder but, rather, a description of some symptoms thereof.
Also of relevance in considering the clinical onset of depressive disorder is the report of Dr Alcorn. It is a very detailed report. It set out many direct quotations and responses provided by Mr Wilson. He was described by Dr Alcorn as being cooperative during the interview with reactive and pleasant affect. The breadth of subject matter dealt with and the detailed responses provided by Mr Wilson are not suggestive of an absence of rapport between the two of them as claimed by Mr Wilson and I do not accept his evidence in that regard. Dr Alcorn noted the references to the problem becoming noticeable to Mr Wilson and his family about 4 to 5 years before he saw him and to the exacerbation of this by events in the working environment in 2003-4. He considered that those events combined with the effects upon him from alcohol abuse were causally associated with his mood disorder.
When all of the material in relation to depressive disorder is considered, it does not point to the presence of a severe psychosocial stressor or to the clinical onset of depressive disorder within two years of the scare charge incident on HMAS Vampire. As these essential components of the template in factor 5(b) are not raised, this means that there is no reasonable hypothesis of a relationship to service per medium of that factor.
depressive disorder: factor 5(c)
To raise a reasonable hypothesis under factor 5(c) of the Statement of Principles, alcohol abuse and dependence would need to be accepted as being service–related and to have preceded the onset of depressive disorder. There is medical evidence that points to the timing of the onset but, as is detailed below, there is no reasonable hypothesis of a relationship between alcohol abuse and dependence and Mr Wilson’s service. Accordingly, factor 5(c) of the Statement of Principles is not met. This means that no reasonable hypothesis is raised under factor 5(c) for depressive disorder. The condition is not war-caused by that means.
alcohol abuse and dependence: factor 5(b), (d)
For a reasonable hypothesis of a relationship between Mr Wilson’s alcohol abuse and dependence and his service under factors 5(b) or 5(d), there needs to be material concerning the scare charge incident which points to him experiencing a severe stressor as that term is defined above. Both subjective and objective considerations are relevant in considering that definition: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 38 AAR 176 at 183. In Woodward, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partial subjective connotation.”
As noted above, the evidence concerning the scare charge points to a louder than usual detonation. Given the position of the engine room below the waterline in HMAS Vampire, such an episode would be capable of being perceived as a threat to a person with little or no experience with the scare charge phenomenon. There was no actual threat to Mr Wilson but the material suggests that he had, albeit briefly, a strong perception that he faced a threat of serious injury or death at the time. Perceptions have been held to be sufficient to satisfy the meaning of experiencing a severe stressor: see Stoddart at paragraph at 183 and Woodward at 131-142. Nevertheless, the evidence is that Mr Wilson was quickly put at ease by the CPO and continued with his duties. The material in relation to the scare charge does not point to an event which, objectively, might evoke intense fear, helplessness or horror or which, subjectively, did so in Mr Wilson. It is not consistent with the requirements of paragraphs 5(b) and 5(d) of the Statements of Principles for alcohol abuse and dependence.
The timing of the clinical onset is also relevant to alcohol abuse and dependence for factor 5(b) and (d). Additionally, paragraph 5(d) requires material which points to the presence of the condition prior to the scare charge incident and for a clinical worsening to have occurred within two years of experiencing the severe stressor. While there is material which points to a significant level of alcohol consumption by Mr Wilson before the scare charge incident, there is no evidence pointing to a diagnosis of alcohol abuse and dependence before then. This means that material relating to the clinical worsening of alcohol abuse and dependence does not fit the template of factor 5(d) in the Statement of Principles.
Factor 5(b) requires material which points to the clinical onset of alcohol abuse and dependence within two years of the episode in Vung Tau Harbour. It is not disputed that Mr Wilson was a heavy consumer of alcohol within that time frame or that he was in that situation in the latter part of his service which ended in July 1968. There is material before me which points to that aspect of the template in factor 5(b) of the Statement of Principles. Despite that, when all of the material in relation to alcohol abuse and dependence is considered, it does not point to all of the components of factor 5(b) and this means that there is no reasonable hypothesis of a relationship to service per medium of that factor. The condition is not war-caused by those means.
alcohol abuse and dependence: factor 5(a)
To raise a reasonable hypothesis under factor 5(a) of the Statement of Principles, depressive disorder would need to be accepted as being service–related and to have preceded the onset of alcohol abuse and dependence. The medical evidence does not point to that timing of onset of the respective conditions and, in any event, as detailed above, there is no reasonable hypothesis of a relationship between depressive disorder and Mr Wilson’s service. Accordingly, factor 5(a) of the Statement of Principles is not pointed to by the materials. This means that alcohol abuse and dependence is not war-caused by that means.
Deledio Step 4: Are the conditions War-caused?
As no reasonable hypothesis for either depressive disorder or alcohol abuse and dependence have been raised, it is not necessary to give further consideration to the evidence under step 4. However, as findings of fact are not permitted under step 3 of the Deledio process, I make the following observations in relation to the evidence of Mr Wilson concerning his alcohol consumption. Reference has been made above to two incidents of alcoholic coma which Mr Wilson experienced prior to the scare charge incident. I have noted Dr Alcorn’s concession concerning the first of these after Mr Wilson learned of the safety of his brother following the sinking of the Voyager. There was no such concession for the second occasion.
Various statements made by Mr Wilson have been reproduced above in paragraphs 13 to 16 of these reasons. It was put to Mr Wilson in cross-examination that these were references to the consumption of alcohol before the scare charge incident. He denied this. He described them as consumption “opportunities” to which he did not yield. I do not accept his evidence in that regard. One of the references is consistent with opportunity only. This is the one relating to the period with his adopted family in Western Australia. The other statements are specific in their reference to actual consumption. He referred to spending time in Sydney at the Paragon Hotel at Circular Quay with his brother; to being “17 + years old and drinking well without any remorse”; to the low cost of alcoholic drinks; to the quality of the beer at Cerberus; and to drinking at the RSL since he “was 15 and a half without question.” Dr Alcorn also recorded Mr Wilson as advising him that he had consumed alcohol since he was 16 years of age. Even if exposure to the scare charge incident met the requirements of experiencing a severe stressor, I would be satisfied beyond reasonable doubt that he had a well developed pattern of alcohol consumption prior to May 1966 although, as noted above, there is no medical evidence of a formal diagnosis of alcohol abuse or dependence pertaining to that time.
Decision
The decision under review is affirmed.
I certify that the preceding 38 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ............................................................
Legal Research Officer
Date/s of Hearing 26 and 27 September 2006
Date of Decision 24 November 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
Representative for the Respondent Mr M Smith
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