Wiseman and Repatriation Commission
[2005] AATA 156
•18 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 156
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/559
VETERANS' APPEALS DIVISION ) Re RONALD LEE WISEMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date18 February 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claims that two conditions are war-caused - depressive disorder - alcohol dependence - consideration of stressors – meaning of “clinical onset” – meaning of “occurrence” – meaning of “severe stressor”- Hoi Chanh prisoners brought on board HMAS Perth – sound of incoming rounds - decision affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309; (2004) AAR 511
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
McKenna v Repatriation Commission (1999) 86 FCR 144
REASONS FOR DECISION
18 February 2005 Deputy President D G Jarvis 1. Ronald Lee Wiseman enlisted in the Royal Australian Navy on 15 January 1965 and was discharged on 14 January 1974. He served aboard HMAS Perth from April 1969 until April 1971.
2. On 28 August 2002, Mr Wiseman lodged a claim for pension in respect of nervous disorder, alcohol abuse, hearing loss, tinnitus, skin damage and psoriasis. The Repatriation Commission recorded a diagnosis of bilateral sensorineural hearing loss, depressive disorder, alcohol dependence, solar keratosis and psoriasis. The Commission accepted the claim for sensorineural hearing loss, but otherwise rejected Mr Wiseman’s claims in a decision dated 6 January 2003.
3. Mr Wiseman subsequently sought a review of this decision by the Veterans’ Review Board (“VRB”). At the VRB hearing Mr Wiseman withdrew his claim for psoriasis. The VRB otherwise affirmed the decision of the Commission in a decision dated 16 September 2003. Mr Wiseman has applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, in respect of the claims for depressive disorder and alcohol dependence. He withdrew his claim for solar keratosis at the commencement of the hearing before me.
Issues before the Tribunal
4. The issue before me is whether Mr Wiseman’s depressive disorder and alcohol dependence are war caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). This in turn raises the following further issues:
(a)whether Mr Wiseman experienced a severe stressor or a severe psychosocial stressor within the meaning of certain Statements of Principles (“SoPs”);
(b)when Mr Wiseman experienced the clinical onset of alcohol dependence and depressive disorder; and
(c)whether Mr Wiseman was suffering from a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder.
5. The parties agreed the diagnoses of the relevant conditions. It was also common ground that if Mr Wiseman was successful in his claim then the earliest date of effect is 28 May 2002.
Background
6. Mr Wiseman was born on 2 December 1947. He completed his schooling at Croydon Boys’ Technical High School and worked on a farm, and then as a process worker in the first 15 months after leaving school. In January 1965 Mr Wiseman joined the Royal Australian Navy and undertook recruit training at HMAS Cerberus. He was subsequently posted to HMAS Anzac until October 1965, when he was transferred back to HMAS Cerberus in order to complete engineering training. In April 1966 he was posted to HMAS Sydney. He was only with HMAS Sydney for about a month before he was posted to HMAS Melbourne, where he remained for about two years. Mr Wiseman was then transferred to HMAS Platypus for 11 months until he was finally posted to HMAS Perth in about April 1969.
7. Mr Wiseman was engaged in operational service for several periods. It is his operational service from 14 September 1970 to 8 April 1971 in Vietnam while on board HMAS Perth that is relevant to the issues before me. Mr Wiseman’s defence service is not relevant to this application.
8. Mr Wiseman remained in the Navy until January 1974, at which time he came to the end of his nine-year enlistment. He secured work at the Mobil Adelaide refinery as a process operator and was employed there for 27 years. He was made redundant in 2001 and subsequently worked for Hardy’s winery at Reynella for two years. He believes that the position with Hardy’s came to an end because of his depression.
Evidence Before the Tribunal
Evidence of Mr Wiseman
9. Mr Wiseman gave oral evidence to the Tribunal and also relied upon his statement which was admitted into evidence as exhibit A3. In his statement Mr Wiseman explained that at some point during his operational service aboard HMAS Perth, between September 1970 and April 1971, the vessel was off the coast of South Vietnam when Mr Wiseman heard several loud explosions while performing his duties in the engine room. He was with several other sailors at the time and was under the supervision of Petty Officer Bailey. He asked Petty Officer Bailey what the noises were, and he was told that it was the sound of incoming rounds. The ship was at defence stations before and during the noises, and after the noises the access hatches were closed. There was no official communication concerning the sounds, but from Mr Wiseman’s conversations with fellow sailors the general view was that the noises were incoming rounds. Mr Wiseman’s statement records that he was in fear of injury or death from what he believed were incoming rounds.
10. Under cross-examination Mr Wiseman expanded upon his evidence about this incident. He explained that during the incoming fire there were four or five loud explosions that sounded like someone “beating on the hull with a 14 pound hammer”. He agreed that this event was less concerning than the Hoi Chanh incident described below.
11. On 1 February 1971, while on patrol off the South Coast of Vietnam, HMAS Perth was approached by a Vietnamese fishing vessel. The fishing boat tied up along side HMAS Perth and five or more Vietnamese men (the “Hoi Chanh”) were brought onboard HMAS Perth. Mr Wiseman was present on the quarter deck because he was off duty at the time, and he believes about six other sailors were also present. The Hoi Chanh boarded HMAS Perth, were stripped and then forced to lie down on the deck of the ship. They were ultimately provided with new overalls. Mr Wiseman recalled that the Hoi Chanh’s fishing vessel was higher in the water than HMAS Perth such that the Hoi Chanh had to climb down on to the quarterdeck. A South Vietnamese Naval Officer eventually arrived and proceeded to interrogate them. At one point the Vietnamese Naval Officer hit one of the Hoi Chanh across the head with the butt of his gun. Mr Wiseman’s statement records that Captain Burnside then intervened and brought an end to the assault, although Mr Wiseman conceded that, in light of Commodore Mulcare’s historical report, it could have been another officer who intervened in the assault.
12. Mr Wiseman’s statement goes on to record that after the interrogation the Hoi Chanh were taken away to an American vessel. Having seen the treatment that they had received, Mr Wiseman was fearful that they were ultimately shot. He was angered by their treatment and felt helpless when he could not intervene to stop the assault. After his tour aboard HMAS Perth he began suffering from nightmares that were predominantly concerned with the Hoi Chanh.
13. Mr Wiseman provided more information about this event in the course of cross-examination as follows. He said that he watched the Hoi Chanh for around one hour and he had an unobstructed view throughout that time. The Hoi Chanh were brought on board one at a time and then stripped and forced to lie on the deck. Mr Wiseman said that he and some other sailors objected to this because the deck was hot, although he agreed that it was a sensible precaution to strip and search the Hoi Chanh. The Hoi Chanh were then escorted below decks for showers and a medical examination. Some of them had minor wounds. They were then provided with overalls and some were given cigarettes by HMAS Perth crew members while they waited for the Vietnamese Naval Officer to arrive. Many of HMAS Perth’s crew took photographs of the Hoi Chanh. Mr Wiseman agreed with the Department’s advocate that the Hoi Chanh were not considered a threat by that time.
14. At one point, the Vietnamese Naval Officer shook his pistol at one of the Hoi Chanh and then hit him. When the Vietnamese Naval Officer hit the Hoi Chanh man, Mr Wiseman and three or so other sailors objected. Mr Wiseman could not recall exactly what he said, but he believes that he swore and said something to the effect that the officer should not be doing that. Mr Wiseman said that when the Hoi Chanh were being escorted off HMAS Perth they were distressed and talking amongst themselves. As they moved past Mr Wiseman, one Hoi Chanh grabbed Mr Wiseman’s arm and spoke to him in a pleading tone in Vietnamese. Mr Wiseman was ordered away from the quarterdeck.
15. Mr Wiseman was cross-examined about a report from Dr Ewer, contained in exhibit A1, in which Dr Ewer recorded that Mr Wiseman had subsequently learned that the Hoi Chanh had been shot. Mr Wiseman explained that he had been told by more than one person at the time of the event that the Hoi Chanh were taken into a river system and killed. He asked his padre and an officer about this rumour, and he was assured by both that the Hoi Chanh had not been executed. Mr Wiseman was also referred to the decision of the VRB in which he is recorded as having told the VRB that in October 2002 he was informed by a HMAS Perth medic that the Hoi Chanh had been killed (see exhibit A1, page 6). He added that he was told the same thing by Mr Hanmer, a fellow sailor, two years ago.
16. Given the prominence of the Hoi Chanh incident in Mr Wiseman’s nightmares, he was not able to explain why he did not refer to the Hoi Chanh incident in his claim form, especially as he said it was his belief at the time that he lodged his claim that the Hoi Chanh incident was causative of his conditions (exhibit T5, page 72). Mr Wiseman said that he failed to mention the Hoi Chanh incident when answering question 6 of an alcohol questionnaire (see exhibit A1, at page 84) because he did not read the question correctly.
17. As to his drinking history, Mr Wiseman gave evidence that he was a light drinker before the Hoi Chanh incident and that he first started to abuse alcohol on the way back to Australia because he was distressed and saddened. Mr Wiseman agreed that he had been intoxicated on one occasion on Manus Island on the way to Vietnam but he asserted that that was a “once off binge” because he was “feeling low”. Mr Wiseman was also referred to exhibit A1, at page 37, in which he is recorded in a hospital admission form as being under the influence of alcohol in Manila in 1967. Whilst Mr Wiseman recalled being in Manila, he did not recall being drunk at the time of his admission to hospital, and he argued that it is possible to be under the influence of alcohol without being drunk.
Evidence of Dennis Hanmer
18. Dennis Hanmer gave oral evidence by telephone and provided a statutory declaration dated 13 August 2004, which was admitted into evidence as exhibit A4. In that document Mr Hanmer confirmed that he witnessed the Hoi Chanh incident alongside Mr Wiseman, and he had also heard rumours that the Hoi Chanh were ultimately executed. He also confirmed that Mr Wiseman voiced an objection to the Hoi Chanh being forced to lie on the hot deck and again when one was struck by the South Vietnamese Naval Officer. Mr Hanmer’s statutory declaration refers to Mr Wiseman having been visibly upset when one of the Hoi Chanh touched and pleaded with him.
19. In cross-examination Mr Hanmer agreed that stripping and searching the Hoi Chanh was an understandable precaution. He did not recall Captain Burnside being present, but he did recall Masters of Arms on the quarterdeck. Mr Hanmer explained that he did not see the Hoi Chanh man being hit by the South Vietnamese Officer but he heard Mr Wiseman object to it when it occurred. He also explained that he has always been close to Mr Wiseman, and that Mr Wiseman had often said that the Hoi Chanh incident had affected him and that he wondered what had ultimately happened to them.
Evidence of Commodore Mulcare
20. Commodore Mulcare, a retired Royal Australian Navy Commodore and historian, gave evidence by telephone and provided an historical report dated 24 August 2004, which was admitted into evidence as exhibit R2. In his report Commodore Mulcare states that “there is no record of HMAS PERTH coming under fire at any time during her 1970/1971 deployment” (page 4). It was the Commodore’s view that if there had been any incoming fire it would certainly have been reported.
21. Regarding the Hoi Chanh incident, Commodore Mulcare explained that the safety of the ship would have been the motivation behind stripping and searching the men. He referred to several photographs attached to his report which show the Hoi Chanh after their surrender to HMAS Perth. He also said that contrary to Mr Wiseman’s recollection, HMAS Perth was higher in the water than the fishing vessel shown in the Hoi Chanh photographs such that the Hoi Chanh would have had to climb up to HMAS Perth’s quarterdeck. Commodore Mulcare referred to the HMAS Perth Report of Proceedings for January 1971 in which the events preceding, during and after the Hoi Chanh surrender are recounted in detail. He reported that “there is no evidence of the South Vietnamese interpreter striking or threatening to shoot the Hoi Chanh” and furthermore, Captain Burnside told the Commodore that he did not have to intervene to stop an assault (see exhibit R2, page 3). In his oral evidence Commodore Mulcare put this even higher in that he said that he has been told by several officers from HMAS Perth that there was no mistreatment of the Hoi Chanh, as opposed to there merely being an absence of any mistreatment in the records.
Evidence as to Mr Wiseman’s Medical Conditions
22. Exhibit A1 includes, at pages 83 to 84, an alcohol questionnaire dated 19 August 2002, in which Mr Wiseman reports that he took up drinking because of “peer pressure” in 1965 during his service. His consumption increased “substantially when on overseas deployments” because of “stress and pressure”. In this document he does not refer to either alleged stressors although his accompanying claim form does refer to gunfire from the coast (exhibit A1, page 72).
23. Dr Ewer, Mr Wiseman’s treating psychiatrist, provided oral evidence and several medical reports to which I will refer in turn. Mr Wiseman had not consulted a psychiatrist before he saw Dr Ewer. It is Dr Ewer’s opinion that Mr Wiseman’s operational experiences led to his alcohol abuse which in turn led to his depressive disorder. However, Dr Ewer agreed that his diagnosis of war-caused alcohol abuse was dependent upon the history that Mr Wiseman provided to Dr Ewer. Furthermore, Dr Ewer was aware of the HMAS Perth medical record dated 25 September 1970 (see exhibit A1, page 52) that records the diagnoses of “Acute depression” and “Intoxication” after an incident at Manus Island in which Mr Wiseman jumped overboard. Dr Ewer conceded that this record was contrary to the history provided by Mr Wiseman, but he considered that intoxication on one occasion was not indicative of a pre-existing alcohol problem. Dr Ewer was of the opinion that the medical note from 1967, in which Mr Wiseman is recorded as being under the influence of alcohol while in Manila, did not provide much helpful information as it did not indicate the quantity of alcohol consumed.
24. It was Dr Ewer’s view that the incoming fire incident would not meet the objective test required under the applicable SoP for alcohol dependence. However, he was also of the view that Mr Wiseman was deeply saddened, shocked and distressed by the Hoi Chanh incident. Dr Ewer explained that Mr Wiseman had focussed upon the Hoi Chanh being forced to lie upon a hot deck in circumstances in which they were naked and wounded, and also upon the assault by the Vietnamese officer. However, upon being advised of the contents of Commodore Mulcare’s report, Dr Ewer agreed that that report did cast some doubt upon the severity of the Hoi Chanh incident.
25. There are three reports by Dr Ewer that are in evidence before me. The first is dated 24 October 2002 and is part of exhibit A1, at pages 86 to 90. The emphasis of that report differs somewhat from the evidence provided by Mr Wiseman in that Dr Ewer records that the Vietnamese officer threatened to shoot the Hoi Chanh, and the Hoi Chanh were reported as being 13 years old with shrapnel wounds and burns. In this report Dr Ewer notes that “whether Mr Wiseman’s current psychiatric conditions can be related to his services history will depend on whether or not he was abusing alcohol prior to the subject stressor” (page 89), and he asks for further documents in order to provide an opinion as to the cause of Mr Wiseman’s alcohol dependence and major depressive disorder. This report does not refer to the incoming fire incident, but Dr Ewer does record that Mr Wiseman became depressed in 1976 and he has continued to be troubled by emotional problems since then. Dr Ewer also records that Mr Wiseman’s alcohol consumption in 2002 was 3 to 4 cans of light beer, 2 glasses of wine and 2 to 3 standard measures of spirit per day. He also regularly drank more alcohol after waking in the middle of the night.
26. In the second report dated 27 November 2002, Dr Ewer considers further material provided by the Department and confirms his earlier diagnosis (see exhibit A1, pages 108 to 111). With the benefit of this further material, Dr Ewer records his opinion that Mr Wiseman’s major depression is secondary to his alcohol dependence and that he could not identify any other cause for the depressive condition. The incoming fire incident is again absent from the report.
27. The final report from Dr Ewer is dated 6 May 2004 and was admitted into evidence as exhibit A2. In this report the diagnosis is alcohol dependence (in remission) and major depressive disorder. This report also includes a reference to the incoming fire incident, and Dr Ewer notes that when he queried why this incident was not mentioned at an earlier time, Mr Wiseman explained that he may not have mentioned the incident because “it did not trouble him as much as the incident which took place on the 1st February 1971”. Dr Ewer records that Mr Wiseman told him about the aggressive behaviour of the Vietnamese officer including that the officer was said to have “threatened the boys with a hand gun and Mr Wiseman thought he was going to shoot them”. I note that this was clarified by Mr Wiseman during cross-examination to just one Hoi Chanh who was threatened by a pistol. With respect to the Hoi Chanh being required to lay naked on the hot deck, Dr Ewer reports that “Mr Wiseman was shocked and saddened by this as he felt this was inappropriate behaviour and he was concerned that Australians were ‘not playing by the rules’” (page 4).
28. This final report from Dr Ewer also records that Mr Wiseman commenced drinking heavily after the Hoi Chanh incident and that he continued to drink heavily after he had returned to Australia. Mr Wiseman’s drinking led to conflict with his wife and socially unacceptable conduct while intoxicated. Dr Ewer reports that this history was confirmed by Mrs Wiseman who also explained that she “did not feel that her husband was excessively depressed when he first returned from Vietnam but she said that he has been very depressed for the last 10 or more years” (exhibit A2, page 6).
29. Dr Ewer further explains at page 7 of his report that:
“Mr. Wiseman developed major depressive disorder many years after his trip to Vietnam. There are a range of explanations as to why Mr. Wiseman developed a Major Depressive Disorder. It is possible he could have developed a Depressive Disorder independently of the events which occurred in Vietnam. In this regard I note Mr. Wiseman felt depressed on the way to Vietnam and jumped off the ship. However, according to Mr. Wiseman and his wife he did not become clinically depressed until many years later. Consequently I believe Mr. Wiseman probably developed a Major Depressive Disorder secondary to his long history of excessive alcohol intake”.
Legislative Background
30. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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; … .”
31. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
32. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
33. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(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) or (2) 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 or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-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.”
34. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which 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 section.”
35. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
36. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA 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 operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and 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 the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
37. The diagnoses of alcohol dependence and depressive disorder were agreed by the parties and are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply ss 120(1) and s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
38. I have considered all of the material before me and I am satisfied that the material points to two hypotheses connecting the conditions of alcohol dependence and depressive disorder with Mr Wiseman’s operational service. The first is that Mr Wiseman experienced two stressful events (namely the Hoi Chanh and incoming fire incident) during his operational service and as a result he developed alcohol dependence and depressive disorder. The second hypothesis is that as a result of his operational service experiences, he developed alcohol abuse which in turn led to depressive disorder.
39. SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the condition in question. The SoP in respect of alcohol dependence is Instrument No. 76 of 1998 (the “Alcohol SoP”, being exhibit A1, at pages 130 to 135). The SoP in respect of depressive disorder is Instrument No. 58 of 1998 (the “Depression SoP”, being exhibit A1, at pages 122 to 125). These findings address the first two steps in Deledio, and were not the subject of any dispute between the parties.
40. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypotheses comply with one or more of the factors referred to in the relevant SoPs. This step involves considering the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331. I will consider each claimed condition in turn.
Alcohol Dependence
41. Under clause 4 of the Alcohol SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 of the Alcohol SoP provides relevantly as follows:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse … with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
… .”
In clause 8, the words “experiencing a severe stressor” are defined to mean:
“… 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.”
42. The expression “alcohol dependence” in factor 5(b) is defined in clause 2(b) of the Alcohol SoP, and operational service constitutes “relevant service” by virtue of the definition of that expression in clause 8 of the Alcohol SoP.
43. On the material before me the only relevant factor is clause 5(b) of the Alcohol SoP. This must be read in conjunction with the definition of “experiencing a severe stressor”.
44. Having regard to the judgments of Mansfield J and the Full Court in Repatriation Commission vStoddart (2003) 77 ALD 67 and the judgment of the Full Court in Woodward v Repatriation Commission (2003) 75 ALD 420, and the judgment of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309, I consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “experiencing a severe stressor” in the Alcohol SoP, and whether the applicant experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be 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”, and the event or events must be such that they “might evoke intense fear, helplessness or horror”. These characteristics entail an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(d)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraph (b).
45. I am mindful that paragraphs (b) and (d) above address issues that are related to a point expressly reserved by the Full Court in Woodward (supra). After quoting from extracts of the judgment of Mansfield J at first instance in Stoddart, the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, but added (at [141]):
“… we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
46. Whilst noting the Full Court’s reservations as set out in the preceding paragraph, I consider that the summary set out in paragraph 44 above sets out the effect of the present state of the relevant authorities. Of course, the requirement for a decision-maker to determine whether a particular occurrence satisfies the objective requirements of the definition of the stressor raises difficult issues where there is no evidence as to any specialised meaning or usage. In Delahunty (supra), Tamberlin J pointed out that the concept of the man on the Clapham omnibus was inappropriate in the present context. I consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra)). Even so, this suggested characterisation is of only limited assistance, because the Armed Forces could include experienced soldiers who have been exposed to combat situations on many occasions, as well as (particularly in the case of veterans who have seen service in Vietnam) young soldiers who have completed their formal training, but have not previously been in a war zone or been involved in combat experience.
The Hoi Chanh Incident
47. In my opinion, the material before me does not satisfy the provisions of clause 5(b) of the Alcohol SoP. Mr Swan of counsel for the applicant submitted that this incident entailed three cumulative “layers” which either separately or in combination satisfied the requirements of the definition of experiencing a severe stressor. He referred to the following evidence of Mr Wiseman in the context of the three layers.
(a)The first layer entailed stripping naked the prisoners (at least one and possibly some of whom were injured), binding them and placing them on the hot deck until they were taken below to be medically examined and given a shower, and then dressed in overalls before being brought back on deck. Counsel submitted that this was a strong reaction on the part of the crew of HMAS Perth, and set the scene for the further events which followed.
(b)The second layer was that a South Vietnamese officer came on board and commenced to interrogate the prisoners in a very aggressive manner and struck one of the prisoners over the head with the butt of his pistol, and then waived his pistol at one or more of the prisoners.
(c)The third layer was that the prisoners were then taken away in the South Vietnamese swift boat, and as they were being taken away, one of the prisoners grabbed Mr Wiseman’s arm apparently in an attempt to have Mr Wiseman help him to avoid having to go on the boat.
48. Mr Wiseman’s account of this incident as outlined in the preceding paragraph was only part of the material before me. Other material included the report of proceedings of HMAS Perth, as set out in the report of Commodore Mulcare (exhibit R2). This indicates that the episode commenced some time after 8:40, that the prisoners were all dressed and back on the quarterdeck again by at least 10:48, and that the prisoners were transferred to the swift at about 13:50. This report therefore contains evidence that the events described by Mr Wiseman lasted for about five hours. Further evidence before me indicates that for the majority of this time, the prisoners were not lying on the deck of the Perth, but on the contrary had been dressed and brought up from below, that many of the crew took photographs of the prisoners, that there was some interaction between the crew and the prisoners, and that the crew gave the prisoners food and cigarettes. The evidence before me also indicated that none of the prisoners was seriously injured, and Mr Wiseman’s evidence was that the prisoners had been affected by shrapnel wounds and in one case burns, but they did not appear to have serious bullet wounds. Both Mr Wiseman and Mr Hanmer agreed that it was sensible to strip the prisoners when they were brought on board in case they were concealing anything harmful under their clothing, and Commodore Mulcare described this as being a sensible precaution to protect the safety of the ship.
49. The evidence in relation to the South Vietnamese officer is that only one prisoner was struck on one occasion, and that either Captain Burnside or some other officer intervened and this conduct was not repeated. There is also further evidence in relation to the third “layer”. Mr Wiseman said that after the prisoner had grabbed his arm, he was ordered below deck, and he believed at the time that the prisoners were being taken back to an American vessel. He later heard rumours that the prisoners had been taken by the South Vietnamese up river and shot, but said that these were rumours and were contradicted by officers to whom he also spoke.
50. Having regard to all of the material relating to this occurrence, I consider that the material does not indicate that Mr Wiseman experienced a severe stressor within the meaning of that term in the Alcohol SoP. This incident is not of the same severity as witnessing casualty clearance or abusive violence. In my opinion, on all of the material before me, the occurrence does not meet the objective requirements of the definition, including the requirement that it must be an occurrence of a kind which “might invoke intense fear, helplessness or horror”.
51. I accordingly find that the Alcohol SoP does not uphold the hypothesis connecting Mr Wiseman’s alcohol dependence with his operational service, insofar as that hypothesis is based upon the Hoi Chahn incident.
The Incoming Fire Incident
52. Pursuant to the third step in Deledio, I further consider that the material before me does not satisfy the requirements of factor 5(b) and the definition of “experiencing a severe stressor” contained in the Alcohol SoP.
53. In coming to this conclusion I have taken into account all of the material before me and note Mr Wiseman’s evidence that this event did not have as great an impact upon him as the Hoi Chanh event. I also note that Dr Ewer supported Mr Wiseman’s assessment that this event was not as grave as the Hoi Chanh incident. Furthermore, it is not until the report dated 6 May 2004 that Dr Ewer records an event in which HMAS Perth was said to have been subjected to enemy fire (exhibit A2). The material indicates that Mr Wiseman did not tell Dr Ewer about this event until he had seen Dr Ewer six or seven times. Mr Wiseman’s delay in telling Dr Ewer is further confirmation that this event was not of the calibre of the events required under the SoP. As I explained in paragraph 44(c) above, it is necessary to determine whether Mr Wiseman experienced the event as defined, and while the event described by Mr Wiseman was no doubt disquieting, I find that it was not of the calibre of events which might objectively evoke intense fear, helplessness or horror.
54. For the above reasons, I consider that the hypothesis raised by the material before me, based upon the Hoi Chanh and the incoming fire incidents, is not consistent with any of the factors in the Alcohol SoP, and so the SoP does not uphold the asserted hypothesis connecting Mr Wiseman’s alcohol dependence with the circumstances of his operational service.
55. However, in the event that my conclusion in paragraph 52 as to the incoming fire incident is incorrect, I make the following assessment of this incident in accordance with the fourth step in Deledio. Assuming that the material before me in relation to this incident was consistent with factor 5(b) of the Alcohol SoP (which I found it is not), I am satisfied beyond reasonable doubt that I should not accept Mr Wiseman’s evidence about this event.
56. An assessment under the fourth step in Deledio entails finding facts from the material before me. Mr Wiseman’s evidence about the incoming fire incident was contradicted by the evidence of Commodore Mulcare. The Commodore said that he could find no reference in the log of the Perth or in the report of proceedings of the Perth that the vessel had come under enemy fire during her deployment in Vietnam in 1970 and 1971. He had found records that the Perth had come under fire during deployments in 1967 and 1968. He was emphatic that if the Perth had come under enemy fire in 1970 or 1971, then this would have been recorded in these records, because of the gravity of such an event. Because there is no reference to this event in the records, he was very confident that it did not occur.
57. Mr Wiseman’s evidence on this matter was most unsatisfactory and contradictory. I note that in the alcohol questionnaire form (exhibit A1, T5, at page 84) in answer to a question as to when and how his drinking habit changed during his service, he answered: “Increased substantially when on overseas deployments”. This answer connotes an ongoing state of affairs, rather than a single isolated incident as described in Mr Wiseman’s evidence before me.
58. On the evidence before me, were my assessment that this event does meet the requirements of the Alcohol Sop incorrect, I find that the incident described by Mr Wiseman did not occur, and accordingly the claim for alcohol dependence would also fail on this analysis. In summary, with regard to both the Hoi Chanh and incoming fire incidents, the hypothesis with respect to alcohol dependence is not reasonable, and by virtue of s 120(3) of the VE Act I must find beyond reasonable doubt that there is no sufficient ground for determining that the condition of alcohol dependence was war-caused. Having made this determination, it is not therefore necessary for me to determine whether Mr Wiseman experienced the clinical onset of alcohol dependence within two years of his operational service.
Depressive disorder
59. Originally, Mr Wiseman relied only upon clause 5(b) of the Depression SoP. On 20 January 2005 the parties were invited to make submissions in respect of clause 5(c) of the Depression SoP. A submission and additional witness statements were received from the applicant on 4 February 2005. The applicant also applied to reopen the hearing of this matter. Following the applicant’s request, I convened a telephone directions hearing on 15 February 2005 in which a further statement by Mr Wiseman dated 2 February 2005 and a statement by Mrs Wiseman also dated 2 February 2005 were admitted as exhibits A5 and A6, respectively. For reasons which are apparent in the consideration below, I also decided not to reopen the hearing of this matter.
60. Under clause 4 of the Depression SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 of the Depression SoP provides relevantly as follows:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
… .”
61. Clause 7 provides that if a factor includes “an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles”.
62. In clause 8, several relevant phrases are defined as follows:
““clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner”
““psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV”
““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.”
63. The expression “depressive disorder” is defined in clause 2(b) of the Depression SoP. Operational service constitutes “relevant service” by virtue of the definition of that expression in clause 8 of the Depression SoP.
64. Factor 5(b) requires that an applicant have experienced a “severe psychosocial stressor” within two years before the clinical onset of depressive disorder. The applicant asserts that the Hoi Chanh and incoming fire incidents are severe psychosocial stressors. Factor 5(c) requires that within the two years immediately before the clinical onset of depressive disorder the applicant had a clinically significant psychiatric condition. I refer to the second hypothesis previously outlined in paragraph 38.
Factor 5(b) of the Depression SoP
65. In both factors 5(b) and (c) of the Depression SoP, reference is made to the “clinical onset” of depressive disorder. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius [2002] FCA 750.
66. There is material before me that points to the clinical onset of depressive disorder at a considerable time after the two operational service experiences that Mr Wiseman relies upon. That material is the evidence of Dr Ewer and in particular, his considered opinion in his second and third reports, based on the history provided to him by Mr and Mrs Wiseman, that “Mr. Wiseman developed major depressive disorder many years after his trip to Vietnam”. Dr Ewer particularly notes in his report dated 6 May 2004 that Mrs Wiseman had noticed a significant deterioration in Mr Wiseman’s depressive state in the last 10 years or more. Taking the reasoning in paragraph 65 into account, the material before me points to the clinical onset of depressive disorder in the early 1990s, at the earliest.
67. Clearly the material before me does not point to the clinical onset of Mr Wiseman’s depressive disorder within two years of his operational service experiences. Mr Wiseman’s hypothesis therefore fails to comply with factor 5(b). Accordingly, I consider that the hypothesis based upon the clinical onset of depressive disorder within two years of Mr Wiseman’s operational service experiences is not a reasonable one. As a result, Mr Wiseman’s claim for depressive disorder on the basis of clause 5(b) of the Depression SoP fails, and it is not necessary to consider whether the Hoi Chanh and incoming fire incidents constitute severe psychosocial stressors.
Factor 5(c) of the Depression SoP
68. Factor 5(c) of the Depression SoP connects depressive disorder with a veteran’s war service in circumstances in which the veteran was suffering from a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder. Alcohol dependence is described as an Axis 1 mental health disorder in DSM-IV and therefore falls within the definition of a “psychiatric condition”. According to Dr Ewer:
“…Mr Wiseman’s Major Depression was secondary to his Alcohol Dependence. Firstly, Mr. Wiseman denied suffering from clinically significant depression prior to the subject incident. Secondly, Major Depression is a well recognized complication of Alcohol Dependence. I could not identify any other cause for Mr. Wiseman’s Major Depressive Disorder and therefore it is reasonable to hypothesize that it was caused by his Alcohol Dependence.” (exhibit A1, page 110)
69. Notwithstanding Dr Ewer’s opinion, in accordance with clause 7 of the Depression SoP and the judgment in McKenna v Repatriation Commission (1999) 86 FCR 144, Mr Wiseman will only succeed under factor 5(c) if he can also connect his alcohol dependence with his war service pursuant to the Alcohol SoP. I have already determined that he cannot establish that alcohol dependence is war caused. As a result, the hypotheses under factors 5(b) and 5(c) are not reasonable, and by virtue of s 120(3) of the VE Act, I must find beyond reasonable doubt that there is no sufficient ground for determining that the condition of depressive disorder was war-caused.
70. In any event, I also consider that the material before me does not point to Mr Wiseman having had clinically significant alcohol dependence in the late 1980s or early 1990s (and I refer to that period in order to allow for the imprecision in the evidence as to the date of clinical onset of depressive disorder). I note that the additional statements provided by Mr and Mrs Wiseman address Mr Wiseman’s drinking habits and related behaviour in the period after his operational service until around 1972. This evidence is not relevant to the issue of whether Mr Wiseman’s alcohol dependence was “clinically significant” within the meaning of the Depression SoP prior to the early 1990’s onset of his depressive disorder. As for the other material before me, it is evident that Mr Wiseman has suffered from alcohol dependence for many years but it is not evident that this condition was “clinically significant” during the relevant time. Although the definition of “clinically significant” requires only that the condition “may” have warranted ongoing management, I note that Mr Wiseman did not see a psychiatrist until he consulted Dr Ewer in 2002. It is also relevant that he was employed by Mobil for some 27 years. According to Mrs Wiseman, Mr Wiseman’s drinking has caused arguments and unacceptable behaviour, but despite not having sought medical assistance for his alcohol consumption, Mr Wiseman told Dr Ewer he has a good marriage (exhibit A1, page 89). I am also mindful that it has also been a very long marriage of some 35 years. While Mr Wiseman’s drinking is no doubt excessive, the material before me does not point to his alcohol dependence being “clinically significant” in the years before the clinical onset of his depressive disorder. Therefore, even if his alcohol dependence were war-caused, I am of the opinion that Mr Wiseman would be unable to meet the requirements of clause 5(c) of the alcohol SoP.
Conclusion
71. For the above reasons I find that Mr Wiseman’s conditions of alcohol dependence and depressive disorder are not war-caused conditions.
Decision
72. For the above reasons, I affirm the decision under review.
I certify that the 72 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N. Quirke AssociateDate/s of Hearing 6 September 2004
Date of Decision 18 February 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr G Doube
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