Worden and Repatriation Commission
[2004] AATA 520
•24 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 520
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/197
VETERANS' APPEALS DIVISION ) Re GRAHAM RORY WORDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date24 May 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2001/197
VETERANS’ APPEALS DIVISION )
Re: GRAHAM RORY WORDEN
Applicant
And: REPATRIATION COMMISSION
Respondent
CORRIGENDUM TO DECISION [2004] AATA 520
TribunalDeputy President Jarvis
Date of Decision 24 May 2004
Date of Corrigendum 10 June 2004
PlaceAdelaide
Corrigendum:
That the phrase ’Alcohol SoP’ appearing in paragraph 61 of the reasons for decision be deleted and ’Anxiety SoP’ be inserted in its place.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS - operational service - whether veteran suffers from anxiety disorder - whether veteran suffers from alcohol dependence - consideration of stressors – objective assessment of state of affairs constituting stressor - scare charges in Vung Tau Harbor and other defensive measures aboard HMAS Sydney – meaning of “clinical onset” and “clinical worsening” – decision of VRB affirmed.
Veterans' Entitlements Act 9, 13(1), 120(1), 120(3) and 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
O’Neill v Repatriation Commission (2001) 34 AAR 290
Woodward v Repatriation Commission (2003) 75 ALD 420
Repatriation Commission v Stoddart [2003] FCA 300
Stoddart v Repatriation Commission (2003) 197 ALR 283
Delahunty v Repatriation Commission [2004] FCA 309
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re A’Bell and Repatriation Commission (1999) 58 ALD 721
Gerzina v Repatriation Commission [2003] FMCA 490
Gerzina v Repatriation Commission [2004] FCAFC 96
Benjamin v Repatriation Commission (2001) 34 AAR 270
REASONS FOR DECISION
24 May 2004 Deputy President D G Jarvis and Dr E Eriksen, Member Reasons for Decision
1. The applicant, Graham Rory Worden, is a Vietnam veteran. In a decision made on 24 February 2000, a delegate of the respondent refused the applicant’s claim for medical treatment and for a pension for incapacity for conditions diagnosed as anxiety disorder, spondylolisthesis, alcohol dependence and alcohol abuse on the ground that the conditions were not war-caused. The applicant has an accepted disability of sensorineural hearing loss of the right ear. On 9 April 2001, the Veterans’ Review Board affirmed the delegate’s decision. The applicant has applied for review of this decision.
2. The applicant was represented by Mr S D Ower of counsel and the respondent was represented by its advocate, Mr G Doube. The applicant and a psychiatrist, Dr M Ewer, gave evidence in support of the applicant’s case, and Commodore Mulcare gave evidence for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of other documents. Following the conclusion of the hearing, we asked the parties to address certain issues in relation to the claim for alcohol dependence, and we subsequently received further submissions from the applicant on 4 February 2004 and from the respondent on 13 February 2004. We have carefully considered those submissions, together with all the evidence and documentary material before us.
3. At the outset of the hearing, we were asked not to proceed with the application insofar as it related to the rejection of the claim for spondylolisthesis, on the grounds that the parties had agreed that the applicant’s condition amounted to lumbar spondylosis, and the respondent would proceed to determine whether that condition was war-caused. If the respondent decided that it was, then the applicant will not pursue his claim in respect of spondylolisthesis. We also record that the applicant conceded at the outset of the hearing that he did not rely on the condition of alcohol abuse, and only relied on the condition of alcohol dependence.
Issue Before the Tribunal
4. The issue before the Tribunal was whether the applicant’s conditions of general anxiety disorder and alcohol dependence were war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). The respondent accepts that the applicant is suffering from these conditions.
5. It was common ground that if the applicant is successful in his claim, the date of effect would be 19 October 1999.
Background
6. The applicant was born on 25 September 1948. He served in the Royal Australian Navy from 11 March 1967 until 10 January 1974. It is agreed that for the purposes of the VE Act he was engaged in operational service aboard the HMAS Sydney in Vietnam from 17 November to 5 December 1969, 16 February to 5 March 1970, 21 October to 12 November 1970, 15 February to 4 March 1971, 26 March to 8 April 1971 and 13 May 1971 to 1 June 1971, being a total of 106 days. During each of those periods of service the HMAS Sydney was in Vung Tau Harbor for a period of either one or two days. The applicant worked as a radio operator on board the HMAS Sydney during his periods of operational service.
7. On 19 January 2000, the applicant lodged a claim for pension in respect of emotional and behavioural disorder, hearing loss and tinnitus, skin disorder and lumbar spondylosis (T5). In a reviewable decision on 24 February 2000, the respondent advised the applicant that the medical names for the claimed conditions were anxiety disorder, sensorineural hearing loss of the right ear, chronic solar skin damage, spondylolisthesis, non-melanotic malignant neoplasm of the skin of the back, and alcohol dependence or alcohol abuse. In a decision on the same date, a delegate of the respondent accepted the claim for sensorineural hearing loss of the right ear, but refused the claim for anxiety disorder, chronic solar skin damage, spondylolisthesis, non-melanotic malignant neoplasm of the skin of the back, and alcohol dependence or alcohol abuse. The respondent further decided to grant disability pension at 20% of the general rate with effect from 19 October 1999.
8. The applicant sought a review of the determination, and on 9 April 2001, the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision of 24 February 2000 in respect of anxiety disorder and alcohol dependence or alcohol abuse. The applicant subsequently applied for review of the delegate’s decision pursuant to s 175 of the VE Act, insofar as that decision related to the refusal of the claims for anxiety disorder, spondylolisthesis, alcohol dependence or alcohol abuse. There is no application for review in respect of the decision to reject the claim in respect of the skin conditions.
Legislative Framework
9. Sections 9, 13(1), 120(1), 120(3) and 120A of the VE Act are relevant in this matter. Section 9 provides for when an injury or disease is to be taken as 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; …”
10. 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 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.
11. Section 13(1) of the 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.
12. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his conditions of general anxiety disorder and alcohol dependence are war-caused, is to be made by applying ss 120(1) and 120(3) of the VE Act. These sections provide 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.”
13. Section 196A of the VE Act provides for the Repatriation Medical Authority (“RMA”) to produce Statements of Principles (“SoPs”). Under s 120A, in the case of applications lodged after 1 June 1994, where the 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.”
14. In the present matter, it is agreed that the relevant SoPs are Instrument No. 1 of 2000 in respect of Anxiety Disorder (the “Anxiety SoP”, T13, at page 144) and Instrument No. 76 of 1998 in respect of Alcohol Dependence (the “Alcohol SoP”, T13, at page 158).
15. Under clause 4 of the Anxiety 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 Anxiety SoP relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder … only
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; … .”
In clause 8, the words “severe psychosocial stressor” are defined to mean:
“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.”
16. Clause 5 of the Alcohol SoP relevantly provides:
“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 or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or”.
Factor 5(a) is qualified by clause 7 of the SoP, which provides:
“7 In this Statement of Principles if a relevant factor applies and that 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.”
17. The words “experiencing a severe stressor” are defined as follows:
““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’ Entitlement 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.”
Evidence Before the Tribunal
18. The applicant gave evidence that when he left school he commenced an apprenticeship as a sheet metal worker but experienced problems with bullying at work, and enlisted in the Navy when he was 18. He completed his basic training and was subsequently trained to be a radar plotter. After completing that training he was posted to the HMAS Anzac and later the HMAS Duchess and the HMAS Derwent, and he served for various periods on these vessels as a radar plotter. He said he enjoyed his life in the Navy and had no problems, apart from seasickness during his first few days out at sea.
19. The applicant said he was later posted to HMAS Sydney, and he understood he would be going to Vietnam. He gave evidence that he did not recall receiving any specific training prior to his first trip to Vietnam. He said that he was not told that they were going to a war zone, but just that they were taking troops to Vietnam and dropping them off and returning to Australia, and they would be there for 24 to 48 hours.
20. From a daily medical record dated 20 September 1968 which forms part of the applicant’s service record, it appears that he saw a medical officer on that date with a variety of symptoms including depression, lack of energy, inability to concentrate and difficulty in controlling emotions, and that the medical officer made a diagnosis that the applicant was suffering from an anxiety state (T4, at page 80). The applicant gave evidence that he could not recall the name of the medical officer or his diagnosis, but thought that it was probably then that he had learned that he was going to be drafted to the HMAS Sydney to do runs to Vietnam. He said that he was “pretty apprehensive” about going to a war zone, and he had heard bad stories from sailors about Vietnam, because soldiers had passed on reports of injuries to sailors on board the Sydney.
21. In cross-examination, and after being referred to attachment 1 to exhibit R1 (a report from Commodore Mulcare), the applicant admitted that he had been posted to the Sydney on 3 October 1969, and that he would not have been aware on the date of the above consultation (20 September 1968) of any transfer to the HMAS Sydney. The applicant further said in cross-examination that he could not recall that at the time of his initial medical examination on enlisting his emotional stability was recorded as “abnormal” (T4, at page 89). He said that he could not remember any home tensions, although admitted he had tensions at work. After reading the medical officer’s comments against Item 48, namely “Seems rather tense - anxious joined to get away from home tension – discussed with psychological branch and considered should be satisfactory”, he said that his parents were disappointed that he did not stick out his apprenticeship, but that did not cause him to be anxious or tense. He further admitted saying to Dr Ewer that he did not have feelings of anxiety before going to Vietnam. He also said that he could not remember the medical officer prescribing tryptanol tablets for his depression, and was pretty sure he never took any tablets following this consultation.
22. The respondent’s advocate also put to the applicant in cross-examination the notes made by a medical officer of a consultation on 20 August 1970, in which the medical officer made a diagnosis of anxiety. The notes record that the applicant’s wife was very upset that he would be at sea when his wife was due to give birth, and that he himself was very upset and unable to concentrate at work and did not know what he would do if he was not allowed to stay home. It further appears from a record of an examination on 5 August 1971 that the applicant was diagnosed with insomnia by a Naval medical officer, and the causes were stated to be giving up smoking recently, an impending move to the Melville and his wife having difficulty coping while he was away. On 5 November 1970 the applicant saw a medical officer and was diagnosed with a mixed neurotic reaction, anxiety and depression, and the history refers to his first child having died “a few weeks ago” when the child was only two days old. It was suggested in cross-examination that his condition of anxiety was not related to his service in Vietnam, but the applicant said this episode had not greatly upset him because he and his wife had planned to have the baby adopted because they could not afford to bring the baby up. He was prescribed mandrax tablets. The applicant said that he did not think that he was prescribed any medication for anxiety.
First trip to Vietnam – Entering Vung Tau Harbor
23. He said he made six trips to Vietnam in all, but the first trip had stayed in his mind. He said that as they approached Vung Tau Harbor the ship was put into a state of darkness and when they entered the harbor he saw explosions in the distance and he “became quite worried”. He also saw various helicopters and fighter planes flying around and he did not know whether they were the enemy or friends. He said he could not determine how far away the explosions were but they “lit up the hills and there was a red fire ball with smoke coming off it” and that it was approaching daylight when they entered the harbor. He said that he saw aircraft and helicopters all the time they were in the harbor and he felt pretty nervous because he was not sure whether they were friendly or not and he felt scared for himself first and also for the ship and crew.
24. In cross-examination he said that he saw the explosions when he looked through one of the scuttles, and he looked briefly on and off, and saw them over a period of half an hour to an hour. When he saw them he estimated that the Sydney was 30 to 40 kilometres away from Vung Tau Harbor and there was a couple of kilometres from the beach in Vung Tau Harbor to the hills. He said the Sydney had troops on board and he thought it was a prime target. He said that he was not sure if he could hear the explosions or not, but it looked as if they were too far away to hear. He said further that he did not remember any explosions in the hills after the first trip to Vung Tau Harbor.
Scare Charges Event
25. The applicant said that his accommodation was below deck, and the galleys were also below deck. He gave evidence that when he was in Vung Tau Harbor on the first trip and at a time when he was below deck, he heard a loud explosion and he could detect that it was coming from below the water. He said it was quite a loud bang and he thought they were being attacked and that they had been hit. He said that he was scared, that his heart rate went up and he had “sweatiness”. He said that he had never heard an explosion like that before and had never been exposed to anything like that in training. He said it “scared the life out of me” and his first thought was that someone had torpedoed the ship, but he discounted that because the ship did not move on the water. He said that he asked questions straight away after the first explosion and learned that the explosion had been caused by scare charges or depth charges which were dropped to keep enemy away from the hull of the ship. He said that after that first occasion explosions happened at about 30 to 35 minutes apart and they all sounded about the same as the first explosion.
26. In cross-examination, after being referred to Dr Ewer’s report of 6 February 2002 (exhibit A2), the applicant agreed that he had told Dr Ewer that he had been informed that depth charges would be used in Vung Tau Harbor but he had no idea how loud one would be. When pressed about the details of the circumstances in which the incident occurred, the applicant said that the significance was the overall effect of being in Vietnam that affected him, and it still did, and the scary part of his experience was entering Vung Tau Harbor for the first time. After being taken to Commodore Mulcare’s report (exhibit R1), the applicant accepted that on his first trip to Vung Tau Harbor the Sydney had only been there for six hours.
Incident involving Sampan
27. The applicant gave evidence that on a subsequent trip to Vung Tau Harbor he was in the radar room on duty and saw one small dot on his screen which was too close for comfort and from the ship’s course it looked as if they were going to run over it. He reported it to the bridge but there was no time to take evasive action. He said he then looked out of a porthole and saw a sampan-type craft tipped over and people in the water. He said he was worried about this, not because of the safety of the people in the water, but because he was worried about the safety of the ship. This was because, he said, he had heard stories of enemy carrying detonating equipment and hiding in flotsam which drifted into the harbor or using a small boat, and he did not know what they were going to run into.
28. In cross-examination, the applicant said that when he first saw the boat it was tipping over or had just tipped over and it was about 1/5th or 1/6th of the way along the ship. The applicant also said in cross-examination that after about 10 seconds, the Sydney was past the boat in the water and he did not remember what happened afterwards, but he suspected that the people in the water were rescued by someone else. We note that this is inconsistent with the applicant’s account to the VRB, where he said that the people in the water were picked up by a rubber duck.
We also note that the history obtained by Dr Ewer relating to this issue was significantly different, in that he records that the applicant had seen a motorised sampan carrying four people approximately half a kilometre away from the Sydney. Further, Dr Ewer also said that whilst he understood that the applicant had seen the sampan himself, it was possible that he was referring to having seen it on the radar screen.
Bomber Brown Overboard Incident
29. On another occasion when he was en route to Vietnam, the ship turned around and he learned that there was a man overboard. He found out that it was one Bomber Brown, whom he had made friends with and whom he had known for a couple of years or so. The applicant said that they later found Bomber Brown, and he thought that he must have been in the water for four to six hours. He saw Bomber Brown in a rubber ducky and he was brought on board on a stretcher. The applicant said that Bomber Brown did not look “too well”, his skin was white and his eyes were bulgy and he thought that he was dead. He said that it was dark when he was brought on board, and after that he was taken away to the medical room, and the applicant did not see him after that, and did not know what became of him. The applicant could not recall whether this was on his first, second or third trip to Vietnam.
30. In cross-examination, the applicant admitted that he told the VRB that Bomber Brown had been in the water for about 12 or 14 hours by the time he was found. He further admitted that he did not tell Dr Ewer about the incident with Bomber Brown on the first or second occasions when he saw Dr Ewer, and that the first mention of this is in Dr Ewer’s report of 6 April 2001. We note that in that report Dr Ewer describes the man overboard as a “close friend” of the applicant, but this appears to us to be inconsistent with the relationship described by the applicant in his evidence before us, namely that he was an acquaintance. Dr Ewer further said that sometimes patients with anxiety disorders find it hard to give a history of events 30 years ago, but the alcohol dependence would not affect the applicant’s long-term memory except for events when he was intoxicated. However, relevant traumatic events would often be quite clear in a veteran’s memory, although they cannot remember events just before or just after the traumatic event.
Shooting at Debris
31. The applicant said that when the ship was at anchor in Vung Tau Harbor divers would carry out searches around the ship and armed sentries would be on duty. There were instances when the sentries fired rifles at something in the water. He said that this made him feel anxious and he did not like loud bangs or gun shots. Whilst he had received training with small arms, he felt he was in control when he fired a rifle, but it bothered him “a bit” when other people were shooting. This unnerved him because he did not know whether a particular bang was going to send a projectile his way or not and he did not want to be there.
Subsequent Events
32. He said that his first and subsequent trips to Vietnam did not improve his state. He was more worried about being shot and thought a lot about this. He said after completing his time on the Sydney he went to a Navy base in Darwin, but it was hard for him to settle down; he still felt worried, it was hard to forget what he had experienced, he could not sleep, and he put these things down to the shock of his first trip to Vietnam. He said that after that first trip he needed to “block things out” and he got “stuck into alcohol”. He could not remember seeing any Navy doctor about his complaints.
Alcohol Abuse
33. The applicant said that prior to being posted to the Sydney he had an occasional drink with friends but he did not do any binge drinking or partying involving alcohol, and in any event it was hard to do this while he was in basic training. However, when he was posted on the Sydney there was an alcohol ration of one 26 oz can a day. He said that he did not sleep and his drinking increased. He said he took his alcohol ration every day and would drink more than his ration by getting the ration of a sailor who did not drink. He said he was drinking three and maybe four 26 oz cans of beer a night and this was fairly regular, although not every night. Again, once he had been posted to the Sydney, he would go to hotels with his friends when he had shore leave and would have quite a lot to drink. He said he had been very scared by his first trip to Vietnam and he took alcohol straight away to forget and to sleep. He said he was worried how this would affect his duties in the radar room and he knew he had overstepped the mark.
34. He said that since leaving the Navy he has continued to drink, and his drinking over the past 30 years has been fairly constant. He said he would drink about four stubbies of beer and three or four whiskeys a day on average. He had never sought treatment for his alcohol problem.
35. In cross-examination, the applicant agreed that he did not seek treatment in respect of his consumption of alcohol. He said that he did not like Vietnam and he drank to forget it and needed it to help him unwind.
Evidence of Commodore Mulcare
36. The respondent called Commodore Mulcare, a retired naval officer who prepared an historical report in relation to issues raised by the applicant. This report is dated 6 March 2003 and is exhibit R1. In this report, Commodore Mulcare says that the principal threat to ships at anchor off Vung Tau was considered to be that of attack by enemy divers or floating mines. One concern was that swimmers could approach under cover of debris from the outflow of the local river system, and another concern 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. He reported further that other possible threats included mortar or rocket attack if the Viet Cong could get within range or attack by boats or surfboard-type craft. However, the principal threats were considered to be swimmer-diver attack, or floating charges or drifting mines. Whilst none of these threats materialised during Sydney’s voyages to Vung Tau between 1965 and 1972, they were always taken seriously and appropriate defensive measures put in place. The report further confirms that defensive measures, collectively known as “Operation Awkward” were put in place when ships anchored, and in the case of HMAS Sydney these measures included (relevantly):
· armed sentries being posted on the flight deck and in some other locations to watch for signs of any suspicious activity in the vicinity of the ship, e.g. air bubbles or suspicious debris; and
· boats patrolling in the vicinity of the ship, towing “home made” anti swimmer devices, and threw scare charges as directed, except when ship’s divers were in the water.
37. As regards scare charges, these were either 1¼ pound or 1 pound charges and instructions for use were that they should be thrown 20 feet clear of the ship or boat and they exploded at a depth of about 20 feet. The report said that the sound of scare charge explosions varies according to various enumerated factors, and the sound of a scare charge thrown from a boat 70 to 100 metres upstream of the ship was “muffled and was generally heard as a loud thud in compartments below the water line. However, explosions nearer the ship were much louder and sharper in these compartments, and could be frighteningly loud if they exploded close alongside, particularly if they were unalerted.” (Exhibit R1, at page 3.6).
According to a statement obtained by Commodore Mulcare from the HMAS Sydney’s diving officer 1970/71, in those years Sydney only used scare charges routinely from the ship’s boats and they were generally dropped 50 to 100 metres upstream of the ship, and no scare charges were used in the immediate vicinity of the ship’s hull. Commodore Mulcare said in his oral evidence that whilst scare charges were used, depth charges were not used in that area.
38. The report states that there is no record of any explosions, flashes, or aircraft strikes on the Vung Tau Peninsular during the November 1969 visit of the Sydney, or during any other visit by Sydney to Vung Tau. However, the report acknowledges that Commodore Mulcare is aware of one published account that there were numerous fixed wing and helicopter strikes on the VC Hill with bombs, rockets and canon fire as Sydney and her escort, HMAS Duchess entered the harbor in November 1969, but he has found no other evidence to support this account. However, the report then proceeds to quote from a report from one Commodore McKay who visited Vung Tau in HMAS Duchess on two or three occasions in the late 1960’s, and he recalled that on one occasion:
“… helicopter gunships firing rockets could be seen through the tropical haze but the rocket firings and their exhausts could be seen many seconds before their associated reports could be heard. My overall impression then and now is that this land battle was non-threatening and way off in the Long Hai Hills or in the riverine complex of Rung Sat, well to the north of the DUCHESS/SYDNEY anchorages. I have no recall of any action in the Cap St Jacques area on arrival or departure of DUCHESS on any of my visits. I can say with a fair degree of certainty that there was not any “action” within 1.5 miles of DUCHESS.” (exhibit R1, attachment 8).
Attachments to exhibit R1 show distances to the shore line to the north of HMAS Sydney’s anchorages and the location of Long Hai Hills. The report states that if there had been any action on VC Hill of the magnitude described it would have been mentioned in the reports of proceedings of both Sydney and HMAS Duchess, and the commanding officer of Sydney was unlikely to have taken the ships into Vung Tau while a battle was raging so near to the city.
39. The report confirms that there is a record of a sailor jumping overboard from the Sydney en route to Vung Tau on 13 May 1971, and that the man was recovered in an unconscious state and had apparently been attempting to swim ashore off Cairns with a life jacket. The Sydney’s then executive officer recalls that the missing sailor was an ordinary seaman and that following the incident, he remained onboard and resumed his training with other ordinary seamen. Curiously, the ship’s report apparently does not disclose the name of the seaman in question. According to the report, the man overboard was found some 1¾ hours after he had been reported missing.
40. The report indicates that there was no record of HMAS Sydney having run over a sampan on any of her visits to Vung Tau, although such an incident would have been recorded in the ship’s log and would probably be mentioned in the relevant Report of Proceedings.
Medical evidence
41. It is agreed between the parties that the applicant suffers from general anxiety disorder and alcohol dependence. Certain relevant medical evidence is included in the T-Documents. We refer in particular to the notes of various consultations by the applicant with medical officers, which are included in the applicant’s service records (T4), to which reference was made during the course of the evidence before us.
42. In addition, the T-Documents include reports from Dr Ewer dated 17 February 2000 (T7, at pages 113 – 120), 4 April 2000 (T10, at pages 131 – 135) and 6 April 2001 (T11, at pages 136 – 140). A further report dated 6 February 2002 from Dr Ewer was admitted as exhibit A2.
43. Dr Ewer said in examination-in-chief that he was familiar with the Statements of Principle and with the concept of clinical onset within two years of a stressor. He said that based on what the applicant had told him, before his first trip to Vietnam he drank in moderation but then he began drinking three beers a night, began shaking and vomiting, he would go ashore and spend four or five hours a day drinking until he could barely walk, and when he stopped he was tremulous and could not sleep and had a craving for alcohol. There was also a conviction for driving while under the influence of alcohol.
44. When asked what he understood by the reference in the Anxiety SoP to clinical worsening, Dr Ewer said that this applied where a person already had a condition but subjective stress increased or the level of impairment worsened in important areas of functioning such as in relation to family or work, and in the context of the definition of general anxiety disorder in the Anxiety SoP, clinical worsening involved symptoms not previously displayed, such as inability to sleep which impacted on the patient’s functioning or distressed the patient.
45. Dr Ewer said that the applicant did not describe the symptoms of anxiety disorder until very recently. However, prior to Christmas 2003 Dr Ewer was sent the applicant’s Naval records and he noted the diagnosis and symptoms of anxiety on 20 September 1968, and said that the tablets prescribed, tryptanol, were an antidepressant. He said that as a result of seeing the records, he had reassessed the applicant’s condition and could not say that his anxiety disorder was caused by the stressful events which he described, because he had the disorder previously and needed treatment for it.
46. The doctor was also asked about his understanding of the concept of “experiencing a severe stressor” as that term was defined in the Anxiety SoP (T13, at page 160). He said that the concept involved an objective element and a subjective element. He considered that in relation to the depth charges the applicant said he felt really scared, his heart rate was raised, he felt tight in the chest, had difficulty breathing and had an intense wish to get away. He thought that that stressor was “borderline” but because of the applicant’s physical changes that experience would fall within that definition.
47. When asked as to his understanding of the definition of “severe psychosocial stressor” in the Anxiety SoP (T13, at page 147), Dr Ewer again said that that stressor required a subjective and objective element, the objective element being an identifiable occurrence, some examples of which were set out in the definition. When Dr Ewer was referred in cross-examination to the historical medical information in the applicant’s service records, he acknowledged that the death of a child would be a significant stressor, and confirmed that the medication prescribed in consequence of the visits to medical officers on 16.8.72 (T4, at page 36) and 23.8.72 (T4, at page 35) were tranquillisers which would reduce anxiety and help the applicant sleep.
48. As regards alcohol dependence, Dr Ewer said that he was not aware of the history that the applicant had consulted a medical officer on 24 August 1967 when he was diagnosed as having sustained a bruise to his left hand and tendonitis as a result of having been pulled along in handcuffs when drunk two weeks earlier (T4, at page 84). On the applicant’s evidence, this episode, in turn, had arisen because the applicant was arrested for urinating when drunk when on leave in Sydney, and this episode occurred only some five months after the applicant enlisted. As regards the Anxiety SoP, and taking into account the definition of “general anxiety disorder”, Dr Ewer conceded in view of the further information available to him from the service records that whilst the applicant reported getting worse after Vietnam, the applicant did not recall the position before Vietnam, and so he (Dr Ewer) was not in a position to say with confidence that the applicant was worse after Vietnam. Dr Ewer considered that the applicant satisfied the definition of “alcohol dependence” in the Alcohol SoP (T13, at page 158) because he had had episodes of falling over, being unable to walk, had a tremor, was unable to sleep without alcohol, had had a motor vehicle accident, and had a conviction for driving under the influence. He agreed, however, that there was nothing in the service records to verify the applicant’s statements in relation to these matters.
49. In his reports, Dr Ewer had placed some reliance on a conviction for driving under the influence and another occasion when the applicant was involved in a motor vehicle accident. However, the applicant said in his evidence that the conviction related to an incident about 15 years ago, after he had left the Navy. He said that the motor vehicle accident had occurred whilst he was still in the Navy but there had not been any alcohol related charge arising from that accident.
Consideration
50. In determining this matter the Tribunal has first considered the approach laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“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.”
51. We have considered all of the material before us and are satisfied that that material points to an hypothesis connecting the conditions of general anxiety disorder and alcohol dependence with the circumstances of the applicant’s operational service. Further, SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the two conditions in question, and those SoPs are, as mentioned above, the Anxiety SoP and the Alcohol SoP. These findings address the first two steps in Deledio.
52. We now turn to third step described in Deledio. This entails determining whether the hypothesis contains one or more of the factors referred to in the relevant SoP. Once again, this step involves considering the material before the Tribunal, 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 the purposes of the third stage of the process described in Deledio : Lees v Repatriation Commission (2002) 125 FCR 331. However, in his evidence before us Dr Ewer appeared to be satisfied from reading the applicant’s service records that his anxiety disorder had developed prior to his operational service. This appears to be Dr Ewer’s concluded position, and we therefore do not regard his earlier reports, which referred to the disorder having developed during or immediately after his service in Vietnam, as constituting relevant material for the purpose of this step. In considering the reports from Dr Ewer, we note that when he gave evidence, he retracted certain opinions he had earlier expressed in his reports, in the light of the information which he later obtained from the applicant’s service records. We think that our proper approach is to consider the final position reached by Dr Ewer in his evidence, and that that is the material before us as far as that witness is concerned. We think that this approach (entailing as it does not taking into account evidence which has been withdrawn or retracted by a witness) would not involve making impermissible findings of fact when applying the third step in Deledio.
Anxiety Disorder SoP
53. As regards the Anxiety SoP, the only factors relevant are those referred to in subparagraphs (ii) and (v) of clause 5(a), and these provisions must be read in conjunction with the definition of “severe psychosocial stressor”. We have set out the relevant provisions of the Anxiety SoP in paragraph 15 above.
54. In O’Neill v Repatriation Commission (2001) 34 AAR 290 the relevant SoP was Instrument No. 49 of 1994 concerning General Anxiety Disorder, and it referred to a “stressful event”. This was defined as “an occurrence which evokes feelings of anxiety or stress”. North J referred to the decision of the Tribunal in that matter, and said that the Tribunal had postulated two aspects of the approach to the relevant SoP: first, an assessment of the subjective response of the applicant, and second, an objective test as to whether a stressful event occurred. His Honour then continued (at [8]):
“In my view, the construction of the SoPs is clear and simple. The subject matter is the experience connected with a Generalised Anxiety Disorder. This is, obviously, something which is peculiarly personal and dependent upon subjective feelings. Indeed, ‘stressful event’ is defined as ‘an occurrence which evokes feelings of anxiety or stress’.”
He then discussed the task of the Tribunal, and said, in effect, that this included determining whether or not the circumstances amounted to an occurrence within the meaning of the definition. He then continued:
“[11] The Tribunal’s reference to an objective test is, I must say, difficult to understand. Mr Hanks, with his usual clarity, attempted to explain the way in which the Tribunal meant that this test was intended to operate. He said that the SoPs mandated a two-step process. The first step required the Tribunal to ask whether, as an objective matter, the occurrence was of such a character that it could fall within the description of an occurrence which evoked feelings of anxiety or stress. The second step was to ask whether the occurrence did in fact evoke such feelings in the person concerned.
[12] Once stated in this way, the difficulty in attributing any meaning to the first suggested step test becomes evident. It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not property open on the SoPs.”
55. In two later Full Court decisions, namely Woodward v Repatriation Commission (2003) 75 ALD 420 (Black CJ, Weinberg and Selway JJ) and Repatriation Commission v Stoddart [2003] FCAFC 300 (Carr, Finn and Sundberg JJ), the Courts considered the definition of “experiencing a severe stressor” in SoPs concerning post traumatic stress disorder and alcohol abuse. The definition is identical in each SoP, and reads:
“’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 … .”
It was decided in these two Full Court decisions that the definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances.
56. In Woodward the Court approved the decision of the primary judge in Stoddart v Repatriation Commission (2003) 197 ALR 283 (Mansfield J), and said at page 139:
“Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving 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 partially subjective connotation.”
57. The Full Court in Stoddart, after quoting the above passage from Woodward, said at [31] that in that matter the Tribunal had misdirected itself in that “it did not address whether the ‘threat’ perceived by the respondent was in the circumstances capable of satisfying the requirements of the definition, notwithstanding there was no actual threat as such”.
The Full Court also approved (at [36]) the proposition by Mansfield J (at [52] of the decision in Stoddart at first instance) that the meaning conveyed by “threat” in its SoP context was “an indication of probable evil to come; something that gives indication of causing evil”.
58. A helpful summary of the approach referred to in Woodward and Stoddart is contained in a later case, namely Delahunty re Repatriation Commission [2004] FCA 309, where Tamberlin J said at [26]:
“On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events.”
His Honour then examined the facts in the matter before him, and continued:
“[27] The term ‘stressor’ denotes something which leads to stress. It is inherent in the notion of ‘stress’ that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how ‘the man on the Clapham omnibus’ might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
[28] There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”
59. In analysing the requirements of the definition of “experiencing a severe stressor”, Mansfield J had also said in Stoddart (supra) at [50]:
“… the adjectival clause ‘that involved actual or threat of death or serious injury …’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause.”
His Honour also said, at [55], that a “threat” extended to an event or events which
“… judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
On appeal, the Full Court did not accept an argument that by referring to a risk of death or serious injury, his Honour had reformulated the test contained in the SoP:
“(i) by lowering the threshold from that which a “threat” would require; and
(ii)by refocusing the definition away from the alleged requirement that there be a manifestation of intended or likely harm.”
The Full Court did not otherwise comment on this extract, and importantly for present purposes, did not disapprove the reference to the fact that the events had to be judged objectively from the point of view of a reasonable person in the position and with the knowledge of the person experiencing the events.
In Woodward, the Full Court quoted passages from Mansfield J’s judgment in Stoddart which included the first of the above extracts, and whilst the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, the Court (at [141]) added:
“… 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.”
60. In the extracts from Mansfield J’s judgement quoted above, his analysis appears to differ from that of North J in O’Neill (supra), although the SoPs under consideration, and the definition of the relevant stressors were, of course, different in each case. We note that the definition of the stressor in the current SoP concerning anxiety disorder has been amended in two significant respects. First, under the current SoP, the definition refers to “(a)n identifiable occurrence that evokes feelings of substantial distress in an individual …” (emphasis added), but the words “in an individual” were not included in the definition in the earlier SoP. Secondly, the definition now refers to a number of examples of events which satisfy the definition. In our view, the inclusion of the words “in an individual” suggests that there must be, to quote Mansfield J, an “objective and assessable state of affairs”. We think that this construction accords with the natural meaning of the words used in the definition. Further, in our view, the inclusion in the definition of examples of the sort of occurrences which satisfy the definition supports construction, since if the only inquiry required was whether subjectively the veteran experienced the relevant feelings of distress, there would be no point in referring in the definition to examples of events which would satisfy the definition.
61. It seems to us that having regard to the authorities referred to in paragraphs 54 to 60 above, the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “severe psychosocial stressor” in the Alcohol SoP and whether the applicant has experienced such a stressor will involve the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be 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)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)In the absence of evidence on this issue but taking into account the Tribunal’s knowledge from cases which commonly come before it, the objective person should be regarded as a young member of the Armed Forces who has completed his or her formal training, but has had no previous combat experience and has not personally been in a war zone.
(e)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.
(f)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 paragraphs (b) and (c).
We are mindful that paragraphs (b), (c), (d) and (f) above address issues which are related to the point expressly reserved by the Full Court in Woodward. Nevertheless, we think that the above summary is a correct analysis of the current state of the relevant authorities.
62. We will now examine all the material before us with respect to the various occurrences.
(a) Entering Vung Tau Harbor on the first trip to Vietnam: We consider that if the applicant is relying on the circumstances he encountered and described in his evidence when he first entered Vung Tau Harbor and their effect on him, the material before us does not satisfy the definition of severe psychosocial stressor. In our view, the state of affairs which existed when the applicant first entered the harbor cannot aptly be described as an “occurrence”. The applicant referred to his concern that the Sydney was put into a state of operation awkward so that its lights were extinguished, and he also referred to the considerable activity which he saw in the harbor, including helicopter gun ships and aircraft (and he was concerned that he did not know whether they were hostile or friendly) and explosions on the hills. He described this as entering a war zone for the first time. If the applicant’s experience of being on board the Sydney as it sailed into Vung Tau Harbor could be regarded as an “occurrence” then we consider that to the extent that the definition requires an objective assessment, the state of affairs described by the applicant when he first entered the harbor for the first time does not satisfy the definition.
The applicant also referred specifically to, and relies upon the explosions which he saw on the hills as they entered the harbor. These of course could constitute an occurrence. The applicant gave evidence that the explosions were of 30 to 40 kilometres away from Vung Tau Harbor when he saw them and they looked as if they were too far away to hear, although we note from T10, at page 133, that the applicant apparently told Dr Ewer that the firing was approximately 10 kilometres away from the Sydney. We consider that a veteran acting reasonably should have expected that the Captain of the HMAS Sydney would not have put the ship at risk by entering the harbor if the distant explosions constituted a danger to the ship, as indeed Commodore Mulcare said in his evidence. We find that the explosions on the hills do not satisfy the objective requirements of the definition of “severe psychosocial stressor”.
(b) The First Scare Charge Event: We find that there is material before us which satisfies the definition, viewed both objectively and subjectively, in the form of the applicant’s evidence and the reports provided by Dr Ewer.
(c) Incident Involving Sampan: We again find that there is evidence before us which indicates that this incident satisfies the objective requirements of the definition, and Dr Ewer’s reports constitute material satisfying the subjective requirements of the definition. On the evidence before us, the applicant said that he was worried about the safety of the ship, but after about 10 seconds the Sydney had gone past the boat in the water. His “worry” was accordingly short-lived.
(d) Bomber Brown Overboard Incident: We find that there is material before us which would satisfy the objective requirements of the definition, and that the history obtained by Dr Ewer as recounted in his report of 6 February 2002 would satisfy the subjective requirements of the definition.
(e) Shooting at Debris: We find that these occurrences would not satisfy the objective requirements of the definition. The shooting at debris was part of the measures taken to protect the Sydney in Vung Tau Harbor in conjunction with the use of scare charges, patrol craft and divers. Persons in the position of the applicant would have participated in rifle fire training, and would not in our view have been substantially distressed by these measures. We consider that these occurrences did not satisfy the objective requirements of the definition.
63. In clause 5(a)(ii) of the Anxiety SoP, reference is made to the “clinical onset” of anxiety disorder. The meaning of these words was considered by this Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668. The Tribunal concluded at [23] 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.”
This approach was referred to without disapproval by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
64. The expression “anxiety disorder” in factor 5(a)(ii) is defined in clause 2(b) of the Anxiety SoP as follows:
“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, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9.”
The expression ‘ICD-10-AM code’ is in turn defined in clause 8 of the Anxiety SoP to mean:
“A number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases in Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3.”
We have considered the relevant paragraphs of this publication, but it is not necessary to set them out in these reasons.
65. In the present matter, the applicant gave evidence that he had been very scared by his first trip to Vietnam and by the events which happened on that first trip, and that he took to alcohol straight away to forget and to sleep, and he was worried how this would affect his duties in the radar room. There is also further reference to the applicant’s anxiety in the reports from Dr Ewer.
66. Clause 5(a)(v) refers to the “clinical worsening” of anxiety disorder. Dr Ewer defined clinical worsening from a medical perspective as where a person already suffers from a condition and either their subjective distress increases significantly or their level of impairment worsens in important role functioning such as their job or their social or family roles, and said further that in the content of the SoP the question was whether the clinical worsening was permanent (transcript 12.11.03, pages 13.5 and 19.6). The concept of clinical worsening was considered by Deputy President McMahon in Re A’Bell and Repatriation Commission (1999) 58 ALD 721. The Tribunal decided that the phrase “clinical worsening” entailed determining whether the pre-existing condition itself had been worsened, and that a temporary worsening of symptoms with consequential temporary incapacity would not amount to a “clinical worsening” for the purposes of the SoP. In the present matter, there is material before us to indicate that the applicant suffered from anxiety before his operational service (see paragraphs 20 and 21 above). There is also material before us that the applicant’s level of anxiety and distress increased during his operational service. We refer in this regard first to the report of 17 February 2000 (T7, at page 114.8) where Dr Ewer reports that on occasions during the applicant’s trips to Vietnam he was so anxious that he “broke out in a cold sweat. He was troubled by insomnia”. In the report of 4 April 2000 (T10, at page 133.7), after describing various events which happened whilst he was in Vietnam, Dr Ewer reports:
“Mr Worden told me in more detail how the above events affected him in Vietnam. He said ‘I was often petrified and very anxious. I was very frightened’. His anxiety in Vietnam was accompanied by a range of physical symptoms including tachycardia, anxiety, excessive sweating and muscle tension. His anxiety was also accompanied by insomnia. He said ‘I had a huge amount of trouble sleeping when we went to Vietnam’. His capacity to function was adversely affected by his anxiety. Mr Worden told me that his symptoms of anxiety persisted for the duration of the time in enemy waters. The symptoms continued when the Sydney passed the hundred nautical mile mark away from Vietnam. However, at this point, Mr Worden’s symptoms lessened somewhat.”
Finally, in his report of 6 April 2001 (T11, at pages 137.9 to 138.2) Dr Ewer reports the history given to him by the applicant of distressing events in Vietnam and that he was so distressed and anxious whilst on the Sydney that he vomited. We find that having regard to the above evidence, there is material before us that the applicant became aware of symptoms which would have enabled a doctor to say that the disease of anxiety disorder was present, and that the time when the applicant became aware of those symptoms was very soon after he experienced the various events in Vietnam which he asserts constituted the stressors on which he relies. However, the material before us also indicates that whilst there was a temporary worsening of these symptoms of anxiety during the applicant’s operational service, there is no material before us to indicate that the pre-existing condition of anxiety was worsened on a permanent basis. We accordingly find that the material before us does not satisfy factor 5(a)(v) in the Anxiety SoP.
67. As regards factor 5(a)(ii) of the Anxiety SoP, we have found that there is material before us that the clinical onset of the applicant’s anxiety disorder occurred during or soon after his first visit to Vietnam (see paragraph 65 above) and also that there is material before us to indicate that the applicant experienced three stressors which satisfy the definition of experiencing a severe psychosocial stressor, namely the first scare charge event, the sampan incident and the Bomber Brown incident, within the two years immediately before the clinical onset of his anxiety disorder. In accordance with the fourth stage of the process explained in Deledio we will accordingly now make findings of fact from the material before us in relation to these issues, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.
68. As mentioned above, the applicant gave evidence as to how he was affected by the various stressors referred to in paragraph 62 above, and he also said that he took alcohol straight away in the large quantities that he described to forget what had happened and to sleep, and he was worried that his duties as a radar operator would be affected. He also said that his drinking had increased when he was posted to the Sydney, both because of the availability of beer through his own ration and through rations he obtained from other sailors who did not drink. In cross-examination, he had no recollection of the consultations with a medical officer on 20 September 1968 (when he was diagnosed as suffering from an anxiety state and was prescribed tryptanol tablets for his depression), or the subsequent consultations with medical officers on 20 August 1970, 5 November 1970 or 5 August 1971. Further, the applicant could not recall that at the time of his initial medical examination on enlisting his emotional stability was recorded as “abnormal”.
69. The matters referred to in the applicant’s service history are inconsistent with the history he gave to Dr Ewer, referred to in his report of 17 February 2000 (T7, at page 118), to the effect that he did not have feelings of anxiety before going to Vietnam. As mentioned above, these matters were derived from the applicant’s service records which were made available to Dr Ewer only after he had prepared his written reports. When these matters were first put to Dr Ewer in cross-examination, he clearly regarded them as very significant and inconsistent with the history he had obtained from the applicant. As a consequence he said in evidence that the applicant was suffering from anxiety disorder previously and needed treatment for it, and he could not say that the applicant’s anxiety disorder was caused by the stressful events which the applicant described. We note that Dr Ewer predicated his report of 6 February 2002 by recording the assumptions he had made for the purposes of his report, namely that the applicant had truthfully relayed his history to him, that the history provided to him was factually correct, that the ancillary information provided to him was accurate and valid, and that his observations of the applicant’s mental state were accurate and could be used to form an opinion regarding the applicant’s psychiatric state. We assume that the above assumptions would also have applied to Dr Ewer’s earlier reports, although he does not expressly qualify his earlier reports in that way. On all of the evidence before us, we are satisfied beyond reasonable doubt, and find, that the clinical onset of the applicant’s anxiety disorder occurred prior to his first visit to Vietnam and prior to his experiencing the asserted stressors. We accordingly conclude that the applicant does not satisfy any of the factors in the Anxiety SoP.
Alcohol Dependence SoP
70. We have set out above the provisions of clauses 5(a) and (b) of this SoP, as well as clause 7 which is relevant to the meaning of clause 5(a).
71. We will first examine the material before us as to the time of the clinical onset of alcohol dependence. In his report dated 17 February 2000, Dr Ewer records that his diagnosis was alcohol abuse and dependence (as well as nicotine abuse and dependence). He said that the applicant had suffered from alcohol abuse and dependence since he went to Vietnam, and that he believed that the applicant’s alcohol abuse was directly related to his war service, in that he started to abuse alcohol during his trips to Vietnam and alcohol was both cheap and readily available to sailors during the Vietnam war, the applicant had given a clear history of using alcohol to cope with and escape the distress he was experiencing in Vietnam, and he continued this pattern of abuse upon returning to Australia (T7, at page 118). Dr Ewer confirmed this opinion (though referring to alcohol dependence and not alcohol abuse) in his reports of 4 April 2000 (T10, at pages 131 and 135), 6 April 2001 (T11, at page 139) and 6 February 2002 (exhibit A2, at page 6). As mentioned above, Dr Ewer further thought that the applicant was suffering from anxiety disorder as a result of the stressful events which he experienced in Vietnam.
72. Applying the third step of the process described in Deledio, we find that there is material before us which satisfies factor 5(a) of the Alcohol SoP, in that there is before us evidence that the applicant was suffering from an anxiety disorder meeting the factors in the Anxiety SoP at the time of the clinical onset of alcohol dependence.
73. The application of factor 5(b) of the Alcohol SoP entails examining the question of whether the applicant experienced a “severe stressor” within the two years immediately preceding the clinical onset of alcohol abuse. We note that the definition of “experiencing a severe stressor” is defined in different terms in the Alcohol SoP than in the Anxiety SoP. The definition is the same as the definition considered in Stoddart (supra) and Woodward (supra). We consider that the task of interpreting the definition should be approached in the manner referred to in paragraph 61 above. In particular, we think that it is necessary to determine whether the stressful events relied upon by the applicant, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant, constitute events of the kind described in the definition. It seems to us further that the severity required before the events will satisfy the definition in the Alcohol SoP is greater than the degree of severity required to meet the definition of “severe psychosocial stressor” in the Anxiety SoP, in that the requirement for the events to evoke “intense fear, helplessness or horror” is greater than the requirement to evoke “feelings of substantial distress”. The primary meaning of “intense” in the 3rd Edition of the Macquarie Dictionary is “existing or occurring in a high or extreme degree”, and we consider that that meaning is appropriate in the context of the phrase “intense fear, helplessness or horror”. We also note that the examples included in the definition in the Alcohol SoP would appear objectively to entail a more severe degree of stress than at least some of the examples included in the Anxiety SoP.
74. In Gerzina v Repatriation Commission [2003] FMCA 490 McInnis FM decided that the Tribunal had not erred in deciding that the adjective “intense” qualified “fear” as well as the words “helplessness” and “horror” in DSM-IV, which was used to determine the diagnosis of the claimed condition. On appeal the Full Court of the Federal Court (Black CJ, Heerey and Bennett JJ) declined to consider whether the Tribunal’s construction of the DSM-IV criterion was the appropriate one, because in the circumstances of that case this was a question of fact, and the Court’s jurisdiction was confined to dealing with questions of law ([2004] FCAFC 96, at [15]). Their Honours pointed out, at [12] and [14], by reference to earlier authorities, that although SoPs must be used in determining whether or not a disease is war-caused, they are not relevant to the issue of diagnosis of a claimed condition, and that DSM-IV is not a statutory or quasi-statutory instrument but a diagnostic manual for clinical use, containing criteria which are only guidelines for professional judgment. For our present purposes, however, when we consider the application of the Alcohol SoP, it is necessary to interpret it, and we agree with the analysis of McInnis FM and with his conclusion as to the meaning of the phrase “intense fear, helplessness or horror”.
75. We find that having regard to the history recorded in Dr Ewer’s reports there is material before us that the first scare charge incident would satisfy the definition of experiencing a severe stressor within the meaning of the Alcohol SoP, and that this event occurred within two years prior to the clinical onset of alcohol abuse. However, we find that the sampan and Bomber Brown incidents would not satisfy the objective aspects of the definition of experiencing a severe stressor in the Alcohol SoP. The evidence as to the sampan incident is that it happened in a very short space of time, and there was no untoward effect on the Sydney. Further, we consider that viewed objectively, the material before us regarding the Bomber Brown incident would not have evoked the intense reactions required by the Alcohol SoP in an objective person with the knowledge and experience of the applicant. We have already found that the other occurrences relied upon by the applicant, namely his experiences on entering Vung Tau Harbor (including seeing the explosions on the hills) and the shooting at debris do not satisfy the objective requirements of the Anxiety SoP, and we further find that from an objective assessment, they do not satisfy the more stringent requirements of the Alcohol SoP.
76. We now turn to the fourth step in the Deledio process. For the reasons referred to above, we have found that the applicant did not satisfy the factors in the Anxiety SoP as regards his anxiety disorder, in that the clinical onset of that disorder was prior to the commencement of his operational service. This means that the applicant does not satisfy factor 5(a) of the Alcohol SoP.
77. In considering factor 5(b) in the context of the fourth step identified in Deledio, we first consider the evidence before us as to the date of the clinical onset of alcohol abuse. We have referred in paragraph 62 above to the meaning of the expression “clinical onset”. We note that for the purposes of the SoP, “alcohol dependence” is defined as follows:
“’alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;”
78. The applicant described his use of alcohol in his evidence, and we summarised this evidence in paragraphs 33 to 35 above. Whilst the applicant clearly commenced drinking excessive quantities of alcohol from and after the time when he was on board the HMAS Sydney, and there is some suggestion that he was worried in Vietnam as to how his excessive use of alcohol would affect the performance of his duties, the applicant did not describe symptoms occurring within two years of the scare charge incident which would satisfy three or more of the diagnostic criteria set out in the above definition of “alcohol dependence”. We further note that in his report of 6 February 2002 (exhibit A2), Dr Ewer refers to the diagnostic criteria for alcohol dependence and said:
“Mr Worden fulfils the DSM-IV diagnostic criteria for the diagnosis of Alcohol Dependence. He gives a long history of the following:
·Excessive alcohol intake
·Tolerance
·Drinking alcohol to his own detriment (conviction for drink/driving, motor vehicle accident, vomiting).”
We do not think that the first of the diagnostic criteria described by Dr Ewer in the above extract from that report, that is, excessive alcohol intake, would in itself satisfy the relevant diagnostic criteria. Further, on the evidence before us, the conviction for drink/driving happened well after the applicant’s operational service, and alcohol was not involved in the motor vehicle accident. Dr Ewer does not state when the other symptoms of alcohol dependence occurred. There is no reference in the applicant’s service records to alcohol abuse or dependence after his first trip to Vietnam, and he was not discharged from the Navy until more than four years later. On the evidence before us, we are satisfied beyond reasonable doubt that the clinical onset of alcohol dependence did not occur within the two years immediately after the scare charge event.
79. In case we are wrong in our conclusion regarding the date of the clinical onset of alcohol dependence, we further consider the evidence relating to the scare charge event in the context of whether it satisfies the definition of experiencing a severe stressor, insofar as it was required to evoke “intense fear, helplessness or horror”. In his evidence, the applicant said that his heart rate went up and he had “sweatiness” and it “scared the life” out of him. The applicant further said that he discounted his first thought that someone had torpedoed the ship, because the ship did not move in the water, and he asked questions straight away after the first explosion and learned that the explosion had been caused by scare charges or depth charges which were dropped to keep the enemy away from the hull of the ship. It therefore appears that the stress experienced by the applicant when this event occurred was of very short duration and he very quickly realised that the ship was not in danger and ascertained what had happened. We are mindful of the opinion expressed by Dr Ewer as to this incident. However, having regard to all of the evidence before us, we are satisfied beyond reasonable doubt that the applicant did not in fact experience the intense reactions required by the definition of the stressor in the SoP, and accordingly that the incident involving the scare charge did not amount to his experiencing a severe stressor. Accordingly, factor 5(b) of the SoP has not been satisfied.
80. Whilst it is not necessary in view of our above conclusions to make findings of fact in relation to the other asserted stressors, we have nevertheless also considered each of the other asserted stressful events, and in case we are wrong about our assessment of these events from an objective point of view (see paragraph 74 above), we find beyond reasonable doubt that none of the other events satisfy the definition of “experiencing a severe stressor” in that they did not evoke intense fear, helplessness or horror on the part of the applicant. His reaction to the relevant stressful events was the subject of evidence-in-chief and cross-examination. When he first entered Vung Tau Harbor and saw everything that he described in his evidence (including the explosions on the hills), he referred to being quite worried, pretty nervous and scared, and in his written statement (exhibit A4) he described his reaction as concerning him greatly and being very anxious. As regards the Sampan incident, he again said that he was worried, but the episode only lasted a very short space of time from when he first saw the object on his radar screen to when the Sydney had gone past the boat and people in the water; he described feelings of being concerned and relieved when the sampan did not explode after its collision with the Sydney, but these reactions do not comply with the requirements of the definition. As regards the Bomber Brown episode, once again he said that he was very anxious and stressed when he saw Bomber Brown brought back on board, but again this does not meet the requirements of the definition. As regards the shooting at the debris, he said that this made him feel anxious and unnerved, and in his written statement he referred to being concerned. In his evidence, Dr Ewer referred to the applicant’s reaction to the scare charge incident, and said he thought that stressor was “on the border line” but given what the applicant said, it “probably would just fall within that definition” (transcript 12.11.03, page 16.6). It is apparent that he regarded this event as the only asserted stressor which would potentially satisfy the definition in the Alcohol SoP. We are satisfied beyond reasonable doubt that the applicant’s reactions did not evoke any of the responses necessary to satisfy the definition of experiencing a severe stressor.
Alternative Diagnosis
81. For the above reasons, we find that the claimed conditions of anxiety disorder and alcohol abuse were not war-caused. In accordance with the requirements of Benjamin v Repatriation Commission (2001) 34 AAR 270, we now consider whether the applicant has a “disease” (whatever may be its label) that was war-caused. In the present matter, counsel for the applicant did not assert that any alternative diagnosis was applicable. We note that the original claim was for anxiety disorder, alcohol dependence and alcohol abuse. As regards the applicant’s symptoms of anxiety, there is no evidence before us to indicate that any other diagnosis is appropriate. The requirements for alcohol abuse are included in the definition of that expression in the Alcohol SoP, while there is a reference to alcohol abuse in Dr Ewer’s report of 17 February 2000, in every other report he refers to alcohol dependence, and it seems to us on the evidence that the applicant does not meet the criteria for alcohol abuse. In any event, the factors for alcohol abuse are the same as those for alcohol dependence, and for the reasons referred to above, the relevant factors in the SoP have not been satisfied, so that any claim for alcohol dependence would also fail. We have concluded that the applicant’s symptoms do not give rise to a diagnosis of any other disease that was war-caused.
82. For the above reasons the decision under review is affirmed.
I certify that the 82 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President Jarvis and Dr Eriksen, MemberSigned: .....................................................................................
B Bills Assistant
Date/s of Hearing 11 and 12 November 2003
Date of Decision 24 May 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr G Doube
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