Cranage and Repatriation Commission [2000] AATA 1119 (18 December 2000)

Last Updated: 4 January 2001

DECISION AND REASONS FOR DECISION [2000] AATA 1119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1182

VETERANS' APPEALS DIVISION )

Re STEPHEN EDWARD CRANAGE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 18 December 2000

Place Melbourne

Decision The decision under review is affirmed.

...........................

Senior Member

VETERANS' ENTITLEMENTS: Applicant on board HMAS Swan during two short visits to Vung Tau Harbour; whether PTSD/Psychoactive Substance Abuse SoPs satisfied; whether "experienced a stressor" as defined; decision affirmed.

Repatriation Commission v Keeley 2000 98 FCR 108

Keeley v Repatriation Commission 1999 56 ALD 455

Reading and Repatriation Commission 2000 AATA 841

Ryan and Repatriation Commission 2000 AATA 849

Olsen and Repatriation Commission 2000 AATA 909

Budworth and Repatriation Commission 2000 AATA 127

Boyd and Repatriation Commission 2000 AATA 615

Howe and Repatriation Commission 1999 AATA 1006

Jehn and Repatriation Commission 2000 AATA 484

Mulvany and Repatriation Commission 2000 AATA 535

Slattery and Repatriation Commission 1998 52 ALD 90 at 106

Repatriation Commission v Deledio 1998 49 ALD 193 at 206

REASONS FOR DECISION

18 December 2000 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 12 November 1998 which affirmed a decision of the respondent made on 17 November 1997 which refused the applicant's claim for alcohol dependence and Post Traumatic Stress Disorder ("PTSD").

2. The hearing of this application commenced in Wodonga and concluded in Melbourne. The applicant was represented by Mr Moore and the respondent was represented by Mr Douglass. Evidence was heard from the applicant and his son and Doctors Whitaker, Kenny and McFarlane. A number of reports and other documents were received into evidence and will be referred to in this decision.

3. The applicant is presently 51 years of age having been born on 28 July 1949. He enlisted in the Australian Navy on 3 June 1967 and was discharged on 19 September 1972. At all relevant times he was an Able Seaman/Mechanic and was engaged in operational service in Vietnam between 4 October 1971 and 14 October 1971 and between 8 December 1971 and 11 December 1971.

4. The present application was the subject of a claim upon the respondent on 17 November 1997. The applicable Statements of Principle at that date were No. 225 of 1995 entitled Post Traumatic Stress Disorder which amended Instrument No. 15 of 1994. The amendment within Instrument No. 225 of 1995 is of no relevance to these proceedings and for the purposes of this decision Instrument No. 15 of 1994 will be adopted. The applicable Statement of Principle with respect to alcohol dependence is Instrument No 5 of 1994 entitled "Psychoactive Substance Abuse or Dependence".

5. The application proceeded on the basis that the Statement of Principle which existed at the date of primary claim should be observed in determining whether a reasonable hypothesis exists connecting injury with service. This was because the Federal Court in Repatriation Commission v Keeley 2000 98 FCR 108 decided - in affirming a decision previously made by Heerey J in Keeley v Repatriation Commission 1999 56 ALD 455 that the Statement of Principle existing at the date of primary claim is to be observed. That principle has been followed by the Tribunal in many decisions, particularly - and most recently - in Re Reading and Repatriation Commission 2000 AATA 841 and Re Ryan and Repatriation Commission 2000 AATA 849. Both of those decisions were delivered by Deputy Presidents of the Tribunal. On 18 October 2000 Senior Member Lewis in Re Olsen and Repatriation Commission 2000 AATA 909 decided that the Statement of Principle applying at the date of hearing at the Administrative Appeals Tribunal should apply. I understand that the Repatriation Commission sought leave to appeal to the High Court in Keeley but that application was refused.

6. It was also learnt during the hearing of this application that there have been a number of decisions of the Tribunal within the last 12 months concerning the application and interpretation of Instrument No. 15 of 1994. The decisions of the Tribunal that have been referred to by the representatives are Re Budworth and Repatriation Commission 2000 AATA 127; Re Boyd and Repatriation Commission 2000 AATA 615; Re Howe and Repatriation Commission 1999 AATA 1006; Re Jehn and Repatriation Commission 2000 AATA 484 and Re Mulvany and Repatriation Commission 2000 AATA 535. I have learnt subsequent to the hearing of this application that Re Budworth is the subject of an appeal to the Federal Court (Application No. N242/99 Appeal Notice lodged on 21 March 2000). The date for the hearing of that Appeal is not known.

stephen edward cranage

7. Mr Moore outlined the applicant's case in his opening. He said the applicant left school at the age of 16 and initially worked in the motor trade until he enlisted in the Navy when aged 17 years. He was initially serving on HMAS Cerberus and later on board HMAS Supply and HMAS Vampire. Initially his service was on the NSW Coast but later he was transferred to HMAS Swan at Williamstown where he was trained in the operation of a swivel-mounted gun located inside a turret. Whilst on board HMAS Swan he was engaged in two tours to Vietnam in 1971. He was then aged 22 years. HMAS Swan was deployed to support HMAS Sydney. On each visit to Vietnam, HMAS Swan was located in Vietnamese waters off Vung Tau conducting sweeping operations.

8. On these occasions Mr Cranage was on "high alert" on a 4 hours on 4 hours off shift. Mr Moore the applicant was scared and petrified of both floating mines and of Vietnamese frogmen attaching mines to the hull of his vessel. He said the applicant's evidence would be that there was a "real possibility" of attack by a mine which caused the applicant great difficulty working inside a gun turret which on one occasion had been locked thereby detaining the applicant but which was intended as a practical joke. Thereafter the applicant became claustrophobic.

9. The evidence also would be that the applicant did not smoke or drink prior to enlistment save for consumption of a bottle of sherry as an adolescent. Whilst enlisted the applicant apparently commenced smoking and drinking on a regular basis. After discharge the applicant was employed as a labourer for two years and then as a salesman at a furniture store in Shepparton until 1994 from which time he has been unemployed. The applicant does not have any accepted disabilities but is in receipt of an invalid service pension. Mr Cranage is married and has four children and four grandchildren.

10. In evidence Mr Cranage said that the summary of events outlined by Mr Moore were true and correct.

11. Mr Cranage said that he initially applied to the Navy to be engaged and trained as a Radar Plotter but did not have sufficient skills and he became a Mechanic.

12. The applicant said that he did not smoke cigarettes before service but did consume a bottle of sherry when he was 16 years of age but thereafter "swore off" alcohol. The applicant also said that he did not previously suffer claustrophobia. He said he commenced to smoke and drink after he completed recruitment training. He also said that whilst on board HMAS Supply he was locked in a boiler room as a practical joke, having been directed by a superior to enter the room to clean and sweep it. Whilst within the boiler room a hatch was secured. When he was eventually released the applicant thereafter refused to enter the boiler room and "broke rules" to avoid entry in to it. The applicant said that since that time he has had difficulty with any enclosed or small space.

13. Whilst on board HMAS Swan he was required to work in a gun turret but coped because it did have a rear door from which he could exit if needed. He described his work in the turret as being responsible to load one of two guns and which he described as the "left hand gun". This required him to lift 56lb shells from a tray and ram them into the gun. He said there were five persons in the turret at any one time and external visibility was denied. He said a turret captain sat in an elevated chair (who had external vision) and was able to direct persons working within the turret.

14. Mr Cranage said that upon enlistment he did not understand that he would ever be engaged in a tour of Vietnam and was not aware of the apparent dangers until arrival in Vietnamese waters. He recalled that the hydraulic motors which permitted the guns within the turret to turn from side to side had broken down and a missile launcher was "out of action". The incapacity of these weapons caused him to be apprehensive, as did a bi-pod gun mounted on the ship's bridge being rendered "useless".

15. Mr Cranage recalled that upon arrival in Vietnam waters he and others were told by superiors that they should expect or at least be aware of the risk of Vietnamese frogmen who were responsible for attaching mines to the hulls of ships and that they would always be engaged in a state of readiness to resist any attack. Mr Cranage said that he recalled these instructions as being unfair because no warning had been given of the risk of attack prior to travelling to Vietnam. The instructions he received concerning the need to be in a state of readiness and the risk of frogmen were heard via an intercom whilst he was stationed and working within a closed turret. He said he then felt helpless, scared and terrified. He could not observe any activity outside the turret and said he was unable to learn from anyone else what was happening outside the turret. He said the worst case scenario was either the turret being hit or a gun within the turret misfiring or striking a floating mine or being locked into the turret. He said that on a scale of one to ten he would describe the level of fear that he then experienced as being nine.

16. Mr Cranage also said that there were many occasions where the vessel turned sharply (as part of its manoeuvres) which caused him to lose balance and fall often striking himself against machinery. He said these experiences were frightening and usually occurred without warning. (Apparently the vessel routinely carried out "zig zag" manoeuvres.)

17. On the second tour of Vietnam Mr Cranage recalled that he was "going back into it". He said that he regarded himself as being "lucky to survive" the first tour and was horrified about returning on the second occasion. He said all of the above features of being confined in a turret, being in fear of floating mines or a mine being attached by a frogman and being in a state of readiness existed again.

18. The applicant said that he drank greater quantities of alcohol during his second tour of Vietnam because he thought that he would "enjoy life" by drinking. He said that he has a "battle" with alcohol and consumes greater quantities of alcohol now than he did during his time in the Navy. He presently consumes between 10 and 12 cans of full strength beer per day.

19. Mr Cranage is presently separated, he said, because of his alcohol consumption. He has not worked since 1994 because of a back injury and currently receives an invalid service pension. Mr Cranage said that military type events depicted in newspapers or on television cause him to recall his time in Vietnam and are upsetting. He specifically referred to the television coverage of the Falklands War and the fire on board the HMAS Westralia recently. He described the Falklands vision on television as being particularly disturbing because a prominent British ship (HMAS Sheffield) he said was of a similar construction type to HMAS Swan.

20. Presently Mr Cranage has difficulty sleeping and has intrusive and disturbing dreams. Often he dreams of being required to enlist in the Navy and having to serve in Vietnam. He said this is a recurring dream and he regards it as a nightmare. He said that the smell of hydraulic oil (such as he was exposed in the gun turrets) is upsetting. He said he has difficulty concentrating and has poor memory. He is frequently irritable and angry and easily startled. He avoids talking about Vietnam experiences and does not associate with former Navy comrades. He has lost interest in sport and in boxing for which he used to train others.

21. In re-examination Mr Cranage said that so far as he could recall he arrived in Vung Tau Harbour during the first journey at dawn. He did not land at port but did recall observing the harbour. Most of the time during both tours were spent some distance offshore.

22. Mr Cranage was referred to a report of Mr J Tilbrook, a military historian who provided a report at the request of the respondent dated 20 February 2000 (received into evidence as Exhibit F). Mr Tilbrook refers to an exercise known as "Operation Awkward" apparently being manoeuvres to avoid enemy mines either floating or being fixed by frogmen. Mr Cranage agreed that these manoeuvres were practiced but he understood it occurred in Thailand whereas Mr Tilbrook said the practice occurred at Hong Kong. Mr Tilbrook reported that HMAS Swan was not ever fired upon nor did it ever drop anchor. However, Mr Cranage said that he had never been informed that HMAS Swan or other Australian ships were "never troubled". Mr Cranage said that his vessel was "always underway" by adopting a zig zag pattern of navigation. He said this was to avoid risk and to deter fixing of mines underwater. Mr Cranage said that the force of the zig zag movements were severe and he was frequently thrown around within the turret and suffered injury. He said there was an occasion where - during rough seas - persons were thrown from their bunks.

23. Mr Cranage was also referred to an annexure to the report of Mr Tilbrook that was completed by the commanding officer of HMAS Sydney, the vessel being escorted by HMAS Swan. The entry records that the President of South Vietnam boarded HMAS Sydney in company with the Australian Ambassador to South Vietnam where a luncheon was provided. It was suggested by this entry that any enemy risk was minimal, however, Mr Cranage said that he had no recollection of this event.

24. With respect to his service within the turrets Mr Cranage said (in evidence to the VRB) that the hatches were secured to keep the turrets watertight however there was a rear door which permitted entry and exit. Mr Cranage said that during breaks from duty he was permitted to walk around the decks and there were occasions where he saw "flashes" in the distance. The turrets were approximately 12 ft square and consistent with a plan depicted in another attachment to the report of Mr Tilbrook. Mr Cranage denied having told Dr Kenny (a psychiatrist consulted by the respondent for the purpose of these proceedings) that he was confined to the turret for 24 hour shifts. Mr Cranage acknowledged that Mr Tilbrook reported that travel to Hong Kong permitted on-shore opportunities for "sightseeing, duty free shopping, local cuisine and shore leave entertainment". However he said that he was hospitalised during the occasion the vessel attended Hong Kong because of a gastric and bowel complaint.

25. Mr Cranage also acknowledged part of the report of Dr Kenny as being accurate where he referred to the applicant having committed offences in Sydney during recruitment training. On one occasion he was found guilty of wilful damage and on another occasions fell down some stairs at the Kings Cross Police Station apparently under the influence of alcohol. These events are also referred to in the report of Dr Whitaker, the applicant's treating psychiatrist. Mr Cranage said these events occurred during the initial stages of his recruitment training when he was consuming alcohol and when he was "silly". He also agreed that there was another occasion when he was found drunk on board ship. Mr Cranage said that he ceased training persons in boxing approximately two years ago and has not attended the RSL for two or three years. He said he did request his medals within the last few years but he had previously attempted to "block this out" and did not want to have medals in fear that it would then provoke memories of his experience in Vietnam.

26. Mr Cranage agreed that he nor anyone else ever fired a turret gun in Vung Tau Harbour however there had previously been exercises where 50 rounds were fired.

INSTRUMENT NO. 15 OF 1994

27. As discussed at the commencement of these reasons the applicable Statement of Principle is Instrument No. 15 of 1994. It was this Statement of Principle that applied at the date of the applicant's primary claim. Despite a recent decision of the Tribunal in Re Olsen, the Full Federal Court in Repatriation Commission v Keeley decided that the applicable Statement of Principle was that which existed at the date of primary claim.

28. This analysis is critical to these proceedings because the factor relied on by the applicant in this application is Factor 1(a) of Instrument No. 15 of 1994 which says:

"experiencing a stressor prior to the clinical onset of post traumatic stress disorder; ...."

29. The prelude to paragraph 1 records that this factor must exist as a minimum "before it can be said that a reasonable hypothesis has been raised connecting Post Traumatic Stress Disorder .... with the circumstances of .... service".

30. The definition of "experiencing a stressor" is found at paragraph 4 of the Instrument and it says:

"experiencing a stressor means the following (derived from DSM-IV)

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror;"

31. Dr Whitaker, a psychiatrist in practice in Albury who has treated Mr Cranage and who gave evidence relied on Instrument No.54 of 1999 when preparing his report of 2 March 2000 (refer later).

32. That Instrument in part amended Instrument No. 3 of 1999 which revoked Instrument No. 15 of 1994.

33. Significantly Instrument No. 3 of 1999 has the applicable factor "experiencing a severe stressor ...." (emphasis added). "Severe stressor" is separately defined at paragraph 8 of the Instrument. That definition is amended by Instrument No. 54 of 1999 but for the purposes of this decision Instrument No. 15 of 1994 applies. It follows therefore that the definition of "experiencing a stressor" as found within that Instrument applies and not the definition of "experiencing a severe stressor" as exists in Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999.

34. For the purpose of this decision equally as critical as the above is the application of the definition of "Post Traumatic Stress Disorder" as found within Instrument No. 15 of 1994. This definition is no different to that which appears at Instrument No. 3 of 1999 and it would appear that the definition is derived from the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV").

35. The definition of Post Traumatic Stress Disorder as found within each of the above Instruments is as follows:

""post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):

(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and

(b) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b,) (c) and (d)) is more than one month; and

(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

36. The above discussion is critical to this decision because Doctors Whitaker, Kenny and McFarlane who gave evidence extensively discussed the above definition and whether it applied to the applicant.

howard whitaker

37. Dr Whitaker is a consultant psychiatrist in practice in Albury. Mr Cranage was referred to him for treatment and subsequently to obtain medical reports. Three reports were provided dated 28 May 1998 (T13) 2 March 2000 and 7 March 2000 (Exhibit A). He has been a psychiatrist in practice since 1951 and previously worked at the Repatriation General Hospital in Melbourne. He continues to have an interest in veterans' health and in post traumatic stress disorder.

38. Dr Whitaker was of the opinion that the applicant has the condition PTSD and that it arose from his Vietnam service. Dr Whitaker said that he held a "firm clinical opinion" that Mr Cranage suffered from PTSD for reasons he gave in his report of 28 May 1998. In that report Dr Whitaker took a history of the applicant learning over the public address system of HMAS Swan that "they were in danger of being sunk by a limpet mine attached by divers". He took a history of the vessel "evasively steaming round the harbour for the following 24 hours during which Mr Cranage was at action stations in the gun turret not knowing what was going on. At the time the only turret was unserviceable". He obtained a history of the applicant being in a panic "as if there would be explosions starting up the next minute". He was told by Mr Cranage that the sailors' mess was below water line (and protected by closed hatches) and the applicant knew "that if the ship was hit he would be dead". He said the applicant was claustrophobic because of an earlier episode at Garden Island in Sydney where he was locked in a boiler room. He reported that these symptoms satisfied criteria (a) of the PTSD definition.

39. Dr Whitaker - as part of obtaining a history and as part of his treatment - asked the applicant to mentally observe the inside of a gun turret and the applicant reported that he could "see the flashes apparently on land". This was described as "intrusive visual imagery" which was reported as having begun in 1973 or 1974. He also had a history of the applicant suffering nightmares and thrashing when in his sleep. He said the nightmares involved being trapped in a ship or being in panic that the ship will sink. Mrs Cranage also gave a similar history to Dr Whitaker. The applicant also spoke of being overwhelmed by the smell of oil and the smell of the ship. He was apparently distressed and near tears during the first interview. He complained of episodes of cold and clammy sweats and his "gut churned and trembled". These symptoms according to Dr Whitaker satisfy Criteria (b) of the PTSD definition.

40. The witness had a history of Mr Cranage reporting to him that he attempted to "blot out his experiences for the last 20 years and when he eventually received his medals his mind started churning over his disturbing experiences". He reported that the applicant avoids thinking and talking about war experiences wherever possible and had not described the above symptoms to any person previously. He reported that the applicant told had him that his "world had changed", that he felt numb and had "lost the ability to enjoy mateship and companionship" and was "unable to express warm affectionate feelings to his wife and children". He reported that the applicant "lived with a feeling as if death would catch up with him soon that was a very deep fear". Dr Whitaker said these symptoms satisfied Criteria (c) of the PTSD definition.

41. Dr Whitaker said that the overall history he obtained from Mr Cranage established that the symptoms are sufficiently severe to produce severe disturbance in social, recreational and occupational efficiency sufficient to satisfy Criteria (d) of the PTSD definition.

42. Dr Whitaker concluded that a DSM-IV diagnosis of PTSD is established beyond reasonable doubt.

43. With respect to the applicant's alcohol consumption Dr Whitaker had a history of the applicant having "began drinking too much when he joined the Navy". He reported that after the applicant developed his "PTSD symptomology" there was increased alcohol consumption to permit the applicant to "calm down and be able to get some sleep". He reported that Mr Cranage said to him that he "hates getting full and not in self control and making a dick head of himself". He concluded that this history amounted to an attempt to self medicate his PTSD. Dr Whitaker was satisfied that the pattern of alcohol consumption met the DSM-IV criteria for "alcohol dependence". He formed this opinion because he also had a history of having to consume greater quantities of alcohol to achieve the same affect thereby having reached a stage of alcohol tolerance. He reported the applicant panicked when he had run out of beer and suffered symptoms of sweating and shaking. He also had a history of the applicant reporting "insect hallucinations which put him into terror" and that "morning drinks calm him down". These symptoms, he said, amounted to "typical alcohol withdrawal syndrome". He had a history of the applicant "drinking more and more for longer and longer intervals than he intended" and whilst Mr Cranage had attempted to reduce alcohol he "goes with the tide". He reported that the applicant's drinking pattern interfered with his ability to work and with his enjoyment and ability to coach boxing.

44. In evidence Dr Whitaker said that the main issue of distress for Mr Cranage was the danger of being sunk by mines and the ship manoeuvring evasively in Vung Tau Harbour for 24 hours. He said the most important feature was the applicant's subjective experience to these events. He acknowledged that the threat to HMAS Swan was (objectively) slight however he said that DSM-IV was constructed to record a person's subjective experience and perception and that this was paramount. He said that with the definition of PTSD as it appeared in DSM-IV the criteria was relaxed because the criteria for DSM-III had a reference to traumatic events being beyond that person's human experience.

45. Dr Whitaker was also of the opinion that the applicant's reaction to the smell of hydraulic oil and cordite and his flashbacks were consistent with a diagnosis of PTSD.

46. In cross-examination Dr Whitaker said the he "imagined Mr Cranage could move around (the turret)" and he did not have any history that the applicant was locked into it.

47. Dr Whitaker was asked to comment on the report of Mr Tilbrook who at page 8 (paragraph 25 (b)) reported:

"it is unlikely that the gun turret would have been "closed up" for action stations during its periods of operational duty in Vietnam waters except for short drills. The adoption of Operation Awkward measures (against enemy mines or underwater attack) were only for the defence of ships at anchor. Any ships underway such as HMAS Swan were not in any danger from such enemy intervention. It is more likely that the gun crews on watch in the 4.5" gun turret were performing there gun watches in a relaxed "stand to" scenario whereby the guns were manned but the twin 4.5" gun turret mount remained open (as there was no immediate or perceived threat").

48. The above quote was compiled following information received from Commander Ian James who was the applicant's commanding officer on HMAS Swan. Dr Whitaker said that the above may amount to the recollection of the Commanding Officer but it is a different recollection to that of the applicant who "is more likely to have a better memory".

49. Dr Whitaker said that the applicant's aversion to the smell of hydraulic oil originated during his Vietnam service. Similarly he was satisfied that his Vietnam service was responsible for his nightmares.

50. He was also aware of opinions expressed by Dr Kenny who reported the applicant had personality problems. Dr Whitaker disagreed with that conclusion and said that his interpretation of the report of Dr Kenny suggested that it was believed that the applicant had an anti social personality disorder which (Dr Whitaker) said was not so. He was firm that the applicant did satisfy the DSM-IV diagnosis of PTSD.

51. With respect to the Instrument concerning psychoactive substance abuse or dependence Dr Whitaker said that the applicant satisfied this Instrument and satisfied the definition of "psychoactive substance abuse or dependence" as defined at paragraph 4. He said the applicant's convictions and trouble with the law "consolidated the diagnosis". He acknowledged that the applicant did consume alcohol before service in Vietnam (but after enlistment) and said that the applicant would not then have satisfied the definition as above unless he was causing harm to himself or others for which he did not have a history.

stephen john cranage

52. Mr Cranage is the son of the applicant. He said that he has attempted on many occasions to "get close to" his father but has found it difficult. He said that his father becomes more open after he has had "a few beers" but when sober he is withdrawn, does not converse, avoids discussion and frequently leaves a room where other persons are present. He said he has attempted to speak with his father on a number of occasions about his naval experiences but he "closes up". He said his father spoke more about his naval service when giving evidence than on any other occasion. Indeed there were many events referred to in evidence that he had never heard previously. He said he had overheard his father talk about mines on previous occasions but when he has questioned his father he "clammed up". He had never heard of his father's experiences in gun turrets.

53. Mr Cranage could recall occasions where his father was upset reading a newspaper where the Falklands War was depicted. He also described his father on occasions during that episode as being startled and withdrawn but he would not talk about it.

54. In cross-examination Mr Cranage said that he could never recall his father discussing his experiences in Vietnam with him but explained that his experiences were something that "children should not hear about".

55. Mr Cranage said when his father recently received his medals he had trouble sleeping, would wake in a sweat, would pace the house at night and was agitated.

Alexander McFarlane

56. Professor McFarlane is Professor of Psychiatry at the University of Adelaide and the Department of Psychiatry at the Queen Elizabeth Hospital in Adelaide. He has a particular interest in the psychiatric consequences of traumatic stress which commenced in 1983 following research he initiated into the human consequences of the Ash Wednesday bush fires. He has edited or co-edited a number of text books and has published over 100 papers concerning PTSD. Professor McFarlane was referred to in the report of Dr Whitaker (Exhibit A) when he (Dr Whitaker) agreed with conclusions Professor McFarlane had reached in a text entitled "Traumatic Stress" where it was said that "perceived enormity of the danger to life", constitutes Criteria (a) of the PTSD definition, as opposed to the "magnitude of external stress".

57. Professor McFarlane did not provide reports prior to the commencement of the hearing. As a consequence of the issues which emerged during evidence in chief and the nature of the cross-examination, Mr Moore consulted with Professor McFarlane in the interval between the first day of hearing in Wodonga and the resumption of the hearing in Melbourne. Professor McFarlane prepared two reports dated 28 July 2000 and 31 July 2000 which were forwarded to the respondent by facsimile. He also forwarded a document entitled "Executive Summary and Conference Overview", being a report of proceedings at a conference entitled "Stress and Challenge, Health and Disease" convened in February 1998 by the Repatriation Medical Authority. The introduction to the report records that the conference was convened as part of the "investigation into the possible causative role of psycho social stress (particularly war or service related stressors) as follows in the development of .... and in respect of Post Traumatic Stress Disorder .....".

58. In his report of 28 July 2000 Professor McFarlane reported that he was a member of the DSM-IV sub-committee involved in developing the diagnostic criteria for PTSD and he was also part of a workshop within the above conference where the Statements of Principles were discussed. He reported that 4 stress factors were discussed at the conference and were derived from data collected by the National Vietnam Veterans' Readjustment Study and which were described as a "retrospective analysis" of American Vietnam Veterans. The 4 factors were

"* exposure to traditional combat (observable stereotypical warfare experiences such as receiving enemy fire, seeing injured or dead colleagues, going on special missions and firing weapons);

* exposure to atrocities or episodes of extraordinarily abusive violence (observable events that might be considered extremely deviant or beyond normal war experiences including terrorising or wounding or killing of non-combatants or mutilation of bodies);

* subjective or perceived threat (individual appraisals as to whether war zone events or circumstances were frightening, perilous or potentially harmful to personal safety including judgements based on the experience of fear and the degree of danger); and

* the general milieu of a harsh or malevolent environment (the extent to which the veterans' rate a daily war zone living conditions as bothersome, annoying or uncomfortable including lack of privacy, inadequate food, bad climate, insect infestation, disease and filth)."

59. He reported that the conference defined "a stressor relevant to military service" as -

"the person experienced, witnessed or was confronted with an event or events that involved actual threat of death or serious injury or threat to the person or other person's physical integrity that might evoke intense fear, helplessness or horror."

60. He said that the view of the conference was that this definition should include:

"1. engagement with the enemy; or

2. witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence; or

3. acute or chronic threat of serious injury or death; or

4. prolonged experience of malevolent environment."

61. He said that the essence of this definition was to "remove the idea of the stressor solely from the issue of perception". He reported that the "aim of the objectivity clause was not to place an obligation on the individual veteran to define the adverse nature of the environment or to provide validated evidence of the observable nature of the stressor to which they had been exposed". He relied on the research findings of Marshall (refer later) who found that it was "very difficult to objectively define the nature of combat experience without a very prolonged and detailed interview with all of the combatants in a particular situation". He concluded "according to my understanding it was neither the intention of this conference nor practically possible from the objective records to apply such a definition of objectivity". He concluded that "the issue at stake is that of the threshold of stressfulness covered by the (a) criterion definition". He said "being on a ship for example in a combat zone where an explosion is heard does raise a reasonably hypothesis (sic) that the individual would have believed that they were under enemy fire".

62. In his report of 31 July 2000 Professor McFarlane expanded on the above and said that the "objectivity principles outlined in the SOP of the RMA were .... an attempt to deal with issues that primarily arose out of the exaggeration of threat in an individuals mind when in fact there was no realistic basis for that perception. This is necessary because of the definition of the stressor criterion DSM-IV".

63. He reported that the "essence of this issue (definition of "experiencing a stressor") is that the notion of threat may be entirely due to the individuals perception and not have substantial basis in fact". He reported later that the "intention of the SOP was not to exclude servicemen who may have been on patrol for a year in the jungle in Vietnam but had never seen a Viet Cong or never fired a shot. Clearly such an individual, although there was no objective engagement with the enemy, did realistically perceive a threat to their physical integrity and that of their comrades. This is particularly the case when on patrol in regions where the enemy was known to be active".

64. He concluded "in the case of Mr Cranage the question is the extent to which there was a realistic threat that either HMAS Sydney or HMAS Swan would have been subjected to interference by the enemy. The absence of any evidence that such interference occurred does not necessarily mean the absence of a threat which is a realistic appraisal. Hence a retrospective analysis of the absence of any combat or engagement with the enemy does not mean that there was an absence of threat to the individual. Hence the decision in this case is a matter of possibility of enemy engagement rather than the reality of its occurrence or not."

65. On the second day of hearing Professor McFarlane was called to give evidence. He expanded on the contents of his reports and said at the Conference there were some modifications to definitions which were ultimately recommended when developing diagnostic criteria. He said that it was understood that there was a "form of stress which wasn't very clearly stated under the DSM-IV criteria and that was that if you are in a situation where you are exposed to enemy forces but don't actually confront them an acute or chronic threat may exist of serious injury or death although you might never come across an event that leads to that threat becoming a reality." He said the aim of the Conference was to "provide guidelines as to the nature of the stressors that were thought to be relevant in terms of defining pension entitlements for veterans".

66. Professor McFarlane was asked to discuss the third of the four stressor factors published as a consequence of the National Vietnam Veterans' Readjustment Study namely "subjective or perceived threat". He said that Marshall was a chief historian with the American Armed Forces during the Second World War, who concluded that historians have largely obtained information from "Generals and those in charge of battles", whereas in his experience individual combatants needed to be interviewed "to gain a better idea of what occurred ". He found "in the face of battle the average serviceman knows little more of what is going on than is happening 18 inches in front of his nose. Often they are situations of tremendous fear and confusion ... the idea that we can document objectively what happens in warfare is basically fallacious". Marshall apparently reported (according to Professor McFarlane) "that only 25% of men even in situations of high combat would discharge their firearm. Even then a significant number wouldn't actually fire to kill, which was a complete surprise to the authorities, in fact his research led to a complete reorganisation of the way in which infantry groups were structured and how warfare has subsequently developed because these matters had never been spontaneously reported previously".

67. Professor McFarlane said that the aim of the Repatriation Medical Authority by convening the Conference was to "have an objective definition of stress in other words one that was relevantly reproducable. ... the problem is that any definition is always going to be difficult around the edges. The perceived issue was dealt with basically by the idea that part of the stress of fighting in combat is not necessarily what does happen to you, it's what might happen to you and in that latter area in which I guess the subjectivity issue was addressed". He said that it was his "understanding" that objective and subjective elements should be embodied into the Statements of Principle "as they have evolved dealing with Post Traumatic Stress Disorder".

68. With respect to the definition of "experiencing a stressor" Professor McFarlane said that part (a) involved an objective reaction or element whereas the second part identified as (b) involved a subjective reaction. When asked to comment on an observation of Mr Moore that "what one person may experience may not be experienced by another person in exactly the same circumstances but for psychiatric make up" Professor McFarlane said "that would be true particularly I guess at the lower end of threat but even at the extreme ends of threshold of threat there is no stressor where everybody will develop a PTSD. Even in the situation of the most shocking carnage and mass death".

69. Mr Moore took Professor McFarlane through the applicant's history and the circumstances he described in evidence. Professor McFarlane said that "Mr Cranage was in a situation where there would have been some risk of underwater sabotage to the ships, he was in a situation prepared for combat, and I think obviously whilst it is very much at the lower margins of exposure, given his account of it, I think you could say that he had - he did satisfy that criterion - that definition".

70. In giving this answer Professor McFarlane referred to a survey from Professor Wiesess from Norway who analysed the threat experienced by Norwegian seamen in World War 2 who were never torpedoed but the "chronic threat of possible sinking of their vessels was subsequently shown to have significantly adverse effects on their health and it is that type of epidemiological evidence that the Repatriation Medical Authority would consider in determining this question."

71. In cross-examination Professor McFarlane was asked by Mr Douglass to explain what was meant by the term "acute threat" as it was discussed at the RMA Conference. Professor McFarlane used an example of a report of a person being in the precincts of a Court carrying a firearm. He said that that person might not come into the court room and might not ever be seen but that would amount to an "acute threat" of "serious injury or death" because it would amount to a "short circumscribed period of time when there was a risk of attack but that never materialised".

72. When asked to describe what was intended to be meant by the expression "chronic threat" he said that would describe "a state of chronic and prolonged hypervigilance based on obviously their survival instincts about maintaining combat readiness and ready to protect themselves from being fired upon and to shoot back in self-defence". The term "chronic threat" was more referrable to a period of time longer than that which was envisaged by the expression "acute threat".

73. Professor McFarlane said the definition of stressor was not purely subjective "but does involve a degree of evaluation of the person's situation". Despite this he said that a threat is "always something which is about perception. I mean, retrospectively you can make a very different assessment as to what the threat was in a situation but it is really forward looking notion as to the risks of being in a particular circumstance".

74. In his report of 28 July 2000 Professor McFarlane referred to the Tribunal decision of Re Mulvaney where an applicant sought to associate PTSD with an event in service. The circumstances (as described at paragraph 7 of the decision) record the applicant having woken from his sleep by the screeching noise of a pet monkey which was tied to the end of his bed. The applicant apparently felt a protrusion through a mosquito net and panicked, apparently under the belief that he was under attack from another person. It appears that the monkey was screeching by reason of the presence of rats and that a number of rats had collided with each other on a nearby ledge and had fallen onto the mosquito net covering the applicant. Professor McFarlane said that the incident to which Mr Mulvaney was exposed was one which "would have aimed to have been excluded" when the definitions were discussed at the RMA Conference because "the essence of the objectivity clause was to remove the idea of the stressor solely from the issue of perception".

75. In answer to questions from Mr Douglass, whilst he acknowledged that Mr Mulvaney was then in a combat zone it was "the particular instance which was the core of his post traumatic rumination". When asked whether it would be relevant to diagnose PTSD in a person who had travelled out of an operational zone and had realised that there was no threat Professor McFarlane said "you can never say ... there wasn't a threat. When you take a ship out of a harbour you don't know whether the enemy was there and they just chose not to fire on you".

76. When asked to discuss the concept of perception and the preference for perception to be measured or determined at the time the stressor is being experienced (because assessment later was "open to bias") Professor McFarlane said that whilst it would be relevant to look at contemporaneous assessments by others who served in the same environment as the applicant it would be preferable to have contemporaneous reports "either by this man or somebody close to his circumstances". He referred to some studies of "Whitehall bureaucrats" which apparently show "people who are higher up the rung are less stressed than people who are halfway down the rung who don't know what's going on".

77. With respect to answers he gave to questions from Mr Moore Professor McFarlane said that the Norwegian sailors he referred to earlier were persons who were engaged in North Atlantic convoys and probably would have spent years in that position. He was not aware whether any of those persons were exposed for an equivalent duration as the applicant said he was at Vung Tau.

78. With respect to the report of Mr Tilbrook, Professor McFarlane said that he would acknowledge that on reading the report, one could conclude that Mr Cranage "had not had a traumatic exposure (because he didn't see anything - he didn't see any combat) there was no explosions ... everything seemed to go fairly smoothly". Mr Tilbrook reported that local dignitaries were invited onto HMAS Sydney and that HMAS Swan stood mainly off harbour but was engaged in two sweeping operations at the beginning of escort duties and during an exchange of mail within harbour. He also acknowledged that Mr Tilbrook had reported that it was unlikely the turrets were closed and that gun crews in the turrets were on a "more relaxed stand-to scenario rather than a full alert". Professor McFarlane said that Mr Tilbrook would have completed his report with experience of "collective history", "rather than the retrospective knowledge" of what persons would be likely to encounter. He agreed that protective procedures and drills if they had become a matter of routine would decrease stress levels but would not "totally remove them".

79. When asked to comment on the response of a person to experiencing a stressor (as described in the Statement of Principle) as involving "intense fear, helplessness or horror" Professor McFarlane agreed that such a response would be extreme and the RMA Conference attempted to remove the necessity for a response of that type because the definition recommended by the conference was that "the persons response might evoke intense fear ...." (emphasis added).

barry michael kenny

80. Dr Kenny is a consultant psychiatrist who examined the applicant at the request of the respondent and provided two reports dated 20 December 1999 and 9 March 2000.

81. He assessed the applicant as suffering from a long-term personality disorder. He noted that the applicant "failed quickly", became in conflict with authority within the Navy, drank to excess on several occasions and was disciplined all of which he said amounted to personality functioning.

82. Dr Kenny distinguished the applicant suffering from nightmares and flashbacks, the latter of which he said occurred whilst a person is awake and are related to actual experiences. He said that the applicant's reaction to cordite was difficult to relate to Vietnam service, because guns were never fired and whilst the applicant's reaction to hydraulic fluid was not discussed during consultation he would have difficulty relating it to service, unless it was "particularly vivid and particularly distressing to him".

83. With respect to the evidence given earlier by Professor McFarlane, Dr Kenny said that he agreed that a "stressor" would involve an element of subjective and objective analysis. He said that there would need to be an element of risk or danger or perceived risk in any "stressor" but an element of subjectivity would need to be considered and present. He acknowledged that in retrospect a "real" risk might not have existed but "to make any sense of the concept you have to allow for an element of subjectivity". Dr Kenny also agreed with conclusions of Professor McFarlane that measures of perception should be ideally undertaken at the time the stressor is being experienced, that measures taken later were open to bias and where individuals were symptomatic any inquiry into suffering or meaning giving to events may be distorted as to recollection or perception at the time of the stressful event.

84. In cross-examination Dr Kenny agreed that PTSD could be delayed in onset, that "small things" may cause the condition to become apparent and agreed that presentation to the applicant of his medals may be such an example.

christopher percival

85. Dr Percival is a psychiatrist in practice in Shepparton. He examined the applicant at the request of the respondent in November 1997. He provided a report at T9. He was not called to give evidence.

86. Dr Percival said that the applicant did not suffer from PTSD but that he did suffer from alcohol dependence.

87. With respect to alcohol dependence Dr Percival said that whilst many Australian males display a similar drinking pattern as Mr Cranage without any service- experience he nonetheless noted that the applicant was a vulnerable young man when he enlisted, was exposed to a heavy drinking culture and was at risk of progressing to frank and long term dependence. He said his naval service "may have made some contribution, the actual significance of which is almost impossible to determine, to his current chronic problems with alcohol".

conclusion and reasons for decision

88. An issue in this review was whether the applicant did suffer PTSD. Dr Whitaker his treating psychiatrist said he did. Doctors Kenny and Percival who consulted for the respondent said he did not. No submissions were made as to whether PTSD should be determined upon the evidence of the doctors or by reference to the Statement of Principle (Refer: Re Slattery and Repatriation Commission 1998 52 ALD 90 at 106.)

89. It is assumed that the medical witnesses reached their respective conclusions based on their observations of the applicant, his history and their expertise. It is also assumed that they had regard to DSM-IV. But the existence of PTSD whether as diagnosed or found as a fact by references to the Statement of Principle will not alone be sufficient. The applicant must, by reason of Factor 1(a) establish that he "experienced a stressor" prior to the clinical onset of PTSD. "Experiencing a stressor" is therefore a precondition. It must have occurred before the clinical onset of PTSD. The diagnostic criteria of DSM-IV does not mandate this. The definition of "experiencing a stressor" is a derivation from Part A of the diagnostic criteria. The definition of PTSD is a virtual facsimile of the entire diagnostic criteria (which also includes Part A).

90. Whether an applicant has PTSD must eventually be a question of fact. It will be determined by reference to the evidence of doctors and whether the criteria found within the Statement of Principle has been satisfied.

91. "Experiencing a stressor" is reproduced earlier but for the purposes of this analysis it is again reproduced as follows:

"experiencing a stressor means the following (derived from DSM-IV):

(a) the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat to the person's or other people's physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror."

92. The respondent submitted that:

* (a) above involved an objective interpretation; and

* (b) above involved a subjective interpretation.

93. The Statement of Principle is a legislative instrument. It is a disallowable instrument under s46A of the Acts Interpretation Act and is subject to rules of statutory interpretation. On this basis I am satisfied that the submissions made by the respondent as to the manner in which "experiencing a stressor" should be interpreted are sound. I can do no better than to adopt part of the decision in Re Slattery at paragraph 79 as follows:

"the word "witnessed" suggests that the person was present at the event involving real or present (i.e. actual) or threatened death. The word "experienced" suggests that the person observed or encountered such an event and the word "confronted" that he or she was faced with such an event."

(A similar conclusion was reached in a decision of the Tribunal in Re Thomson and Repatriation Commission 2000 AATA 635 - refer paragraph 48.)

94. The evidence of Mr Cranage was that his vessel was continually engaged in sweeping/zig zag manoeuvres to avoid the risk of having mines affixed to its hull by Vietnamese divers. Additionally, he said there was a risk of his vessel striking floating mines. There was apparently a communication received by him and others that they should be on alert and during some of the time that he was working in the gun turret, the gun was defective. Mr Cranage said that his position within the turret denied him any external observation of the ship and he suffered from claustrophobia having regard to a prior incident during naval training.

95. However, as a fact, his vessel was never fired upon nor did it ever discharge its weapons except during training operations prior to entry into Vietnamese waters. His vessel did not ever drop anchor, it was positioned a considerable distance out of Vung Tau Harbour and he did not ever experience, witness or confront any event that involved him in actual or threatened death or serious injury or a threat to his or other person's integrity.

96. I regret the delay in delivery of this decision but the manner in which the words "experiencing a stressor" should be interpreted (that is whether they should be interpreted objectively or subjectively) has caused me much concern.

97. I was impressed by the evidence of Dr McFarlane and it would appear that many recommendations made by the RMA Conference (over which he gave evidence) were rejected by the RMA in the formulation of the PTSD Statement of Principles. Indeed, there is much to suggest that the opportunity to connect PTSD with service, having regard to more recent Statements of Principles, has become much more restricted and difficult to satisfy. (A more recent Statement of Principle concerning PTSD refers to "experiencing a severe stressor".)

98. In so far as paragraph (b) of "experiencing a stressor" is concerned I am satisfied that it should be entirely interpreted subjectively. Little however turns on this issue for the purposes of the present application unless it can be established that objectively Mr Cranage satisfies paragraph (a). For the above reasons I cannot be satisfied that he does satisfy that part of this definition.

99. In conclusion therefore I am obliged to find that Factor 1(a) does not exist as a minimum because the applicant was not "experiencing a stressor", prior to the clinical onset of Post Traumatic Stress Disorder.

100. The remaining issue is whether the applicant satisfies Instrument No. 5 of 1994 entitled "Psychoactive Substance Abuse or Dependence". This Statement of Principle was suggested as being relevant in consideration of the applicant's alcohol abuse in the event that he did not satisfy the PTSD Statement of Principle.

101. Instrument No. 5 of 1994 records five factors. Those factors are:

"(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or

(b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or

(c) experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or

(d) having a psychiatric condition prior to the clinical worsening of psychoactive substance abuse or dependence; or

(e) inability to obtain appropriate clinical management for psychoactive substance abuse or dependence."

102. Paragraph 2 of the Instrument provides that Factors 1(c) - (1)(e) only apply if the psychoactive substance abuse or dependence was "contracted prior to a period or part of a period of service .... ". There is no material which would support this proposition and I am satisfied therefore that only Factors 1(a) and (b) are to be regarded.

103. In so far as Factor 1(a) is concerned the words "stressful event" are defined as "means an incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were subjective symptoms of increased stress".

104. I am satisfied that the words "an incident in which there were external stimuli" should be interpreted objectively for the reasons given earlier. The language contemplates an event (an incident) which actually occurred from which there was "external stimuli". The nature of the "incident" is suggested by the definition as being "combat". An event of this type did not occur during the operational service of Mr Cranage.

105. Because I am not satisfied that the applicant experienced a stressful event as defined he is unable in my view to satisfy Factor 1(a).

106. In so far as Factor 1(b) is concerned, assuming that Mr Cranage were to meet the definition of "psychoactive substance abuse or dependence", there is no material which would permit me to find that he had a "psychiatric condition prior to the clinical onset of the psychoactive substance abuse or dependence". Whilst "psychiatric condition" is defined as meaning "any psychiatric illness that attracts a diagnosis under DSM-IV", nothing was heard to permit a finding that this factor exists as a minimum.

conclusion

107. Two separate hypotheses were raised by the applicant connecting service with illness or injury. One concerned PTSD and the other concerned Psychoactive Substance Abuse or Dependence. Both hypotheses arose out of limited periods of operational service on board HMAS Swan in Vung Tau Harbour.

108. Each illness or injury attracts a Statement of Principle referred to earlier in this decision.

109. I am unable to conclude that either of the hypotheses is "reasonable". Neither hypotheses "fits" or is "consistent" with the "template" as found within each Statement of Principle. Neither hypothesis that has been raised contains one or more of the factors which exist as a minimum. Because the hypotheses fails to fit within the template they must be deemed not to be "reasonable" (refer Repatriation Commission v Deledio 1998 49 ALD 193 at 206).

110. The decision under review shall be affirmed.

I certify that the one hundred and ten (110) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Linda A Nemeth ............................................

Secretary

Dates of Hearing 26 July 2000, 1 August 2000

Date of Decision 18 December 2000

Counsel for Applicant Mr G Moore, Counsel

Counsel for Respondent Mr R Douglass, Departmental Advocate