Stevenson and Repatriation Commission [2002] AATA 130 (1 March 2002)

Last Updated: 6 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/121

VETERANS' APPEALS DIVISION )

Re ALAN STEVENSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member

Date 1 March 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

Member

CATCHWORDS

VETERANS' AFFAIRS -Veterans' entitlement - disability pension - whether PTSD and PSA war caused - whether reasonable hypothesis connecting each condition with applicant's operational service - whether Statements of Principles satisfied - whether facts support the hypothesis

Veterans Entitlement Act 1986 s 9, s 119, s 120, s120A, s196

Statement of Principles

Instrument No 3 of 1999 concerning Post Traumatic Stress Disorder

Instrument No 76 of 1998 concerning Psychoactive Substance Abuse or Dependency

Repatriation Commission v Wedekind [2000] FCA 649

Brew v Repatriation Commission (1999) 30 AAR 63 (FFC)

Johnson v Commonwealth of Australia (1982) 150 CLR 331

Federal Broom Company Pty Ltd v Selmitch (1964) 110 CLR 626

Mulvaney v Repatriation Commission (2000) 59 ALD 602

Commonwealth v Johnson (1980) 31 ALR 445

Ogden Industry Pty Ltd v Lucas (1967) 116 CLR 537

Repatriation Commission v Deledio (1998) 83 FCR 82

Dixon v Repatriation Commission (1999) 29 AAR 235

Hill v Repatriation Commission [2001] FCA 1775

Byrne v Repatriation Commission (1993) 177 CLR 564

Brew v Repatriation Commission (1999) 50 ALD 403

REASONS FOR DECISION

Mr I R Way, Member

1. This is an application by Alan Stevenson for review of a decision of the Veterans' Review Board ("VRB") dated 17 January 1998 affirming a decision of the Repatriation Commission dated 19 August 1996 that Post Traumatic Stress Disorder ("PTSD") and Pyschoactive Substance Abuse or Dependence ("PSA") are not war-caused or defence caused within the meaning of s 9 and 70 of the Veterans' Entitlements Act 1986 ("the Act").

2. At the hearing the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T8) and the following documentary exhibits tendered by the parties:

For the Applicant:

* Statement of Alan Stevenson dated 30 April 1999 Exhibit A1

* Statement of Alan Stevenson dated 23 October 2000 Exhibit A2

For the respondent:

* Report of Dr Peter Mulholland dated 1 July 1999 Exhibit R1

* Report of Dr Peter Mulholland dated 16 August 2001 Exhibit R2

The Applicant, his wife, Mrs Stevenson, Dr Mulholland and Dr Tucker gave oral evidence.

3. The Applicant was born on 12 October 1944 and rendered service in the Royal Australian Navy from 3 June 1963 to 6 December 1973. From 22 February 1970 to 1 March 1970 and from 22 February 1971 to 1 March 1971 the Applicant rendered operational service as a member of the crew of HMAS Yarra in the Vietnam operational area. The Applicant's service from 7 December 1972 until his discharge on 6 December 1973 constitutes eligible defence service. At the hearing, Mr Harding, for the Applicant, informed the Tribunal that the Applicant's claim was not related to his eligible defence service and the Tribunal proceeded to hear this matter on the basis of the Applicant's operational service.

Legislative Framework

4. Section 9 of the Act relevantly provides:

"9 War-caused injuries or diseases

Subject to this section, for the purposes of this Act....

(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;

...

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise

Note: This subsection is affected by section 120A."

5. With respect to the appropriate standard of proof in this matter the Act requires:

"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.

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be.

6. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority ("RMA") and section 196B sets out the RMA's functions. Section 196B(2) provides:

"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a) operational service rendered by veterans; or

(b) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Note 1: For sound medical-scientific evidence see subsection 5AB (2).

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

Note 3: For factor related to service see subsection (14).

7. Section 119 (1) provides:

"119 Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application;

...

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

8. It was contended for the Applicant that the Applicant suffered PTSD arising out of his service on HMAS Voyager in 1964 and that this condition was contributed to in a material degree, or was aggravated, by his operational service, either because of an inability to obtain appropriate clinical management for his condition during his operational service or, in the alternative, as a result of experiencing a severe stressor during his operational service. With respect to PSA it was contended that the Applicant suffered from a worsening of alcohol dependence or alcohol abuse either because of a psychiatric disorder or experiencing a severe stressor as a result of his operational service.

9. The RMA has, pursuant to section 196B(2) of the Act, determined a Statement of Principle ("SoP") in respect of PTSD and a SoP in respect of PSA. It was accepted by both parties and the Tribunal is satisfied that the relevant SoPs are as follows:

* PTSD Instrument No 3 of 1999

* PSA Instrument No 76 of 1998

10. The relevant factors in the SoPs are as set out below:

PTSD Instrument No 3 of 1999

"Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:

(a) ...

(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder.

Factors that apply only to material contribution or aggravation

6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person's post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

...

Other definitions

8. For the purposes of this Statement of Principles:

...

"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;

"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 another person's, physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as 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;

"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;

"relevant service" means:

(a) operational service; or

(b) ...; "

PSA Instrument No 76 of 1998

"Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:

(a) ...

(b) ...

(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e) ...

Factors that apply only to material contribution or aggravation

6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person's alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

...

Other definitions

8. For the purposes of this Statement of Principles:

...

"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;

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

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;

"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;

"psychiatric disorder" means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;

"relevant service" means:

(a) operational service; or

(b) ... "

11. Subsection 120(6) of the Act provides that no onus of proof lies upon either party to this review.

Applicant's Evidence

12. In his written statement (Exhibit A1) the Applicant stated that Dr Tucker, Psychiatrist, diagnosed him as having PTSD attributable to his horrific experience in the Melbourne/Voyager collision. He went on to state:

"4. Notwithstanding my reaction to the Melbourne -Voyager collision, I was able to perform my duties in the Navy. Then in 1970 and 1971 my duties were on board the HMAS Yarra which was accompanying the HMAS Sydney to South Vietnam. The HMAS Sydney was a troop carrier, formerly an aircraft carrier similar to the HMAS Melbourne. During the journey the HMAS Yarra came in very close proximity to the HMAS Sydney. This brought back the horrific memories of the Melbourne - Voyager collision and instilled in me an unreasoned fear that the ships were going to collide and I was going to drown. To make things worse, I was confined in a small gunnery cabin with one other sailor. The seating position meant that I was pinned into the gunnery cabin and had no way of getting out in case of emergency.

5. My two trips through Vietnam waters in 1970 and 1971 were horrific. I was panic stricken virtually the whole time. I couldn't get it out of my mind that there was going to be another collision, and I had to resort to alcohol to help me tolerate the confined spaces of the gunnery cabin. All the time I was on the verge of panic, expecting a collision at any second and frantically searching in my mind for a way to escape when the inevitable collision came.

6. The symptoms of my PTSD have been much worse since my service in Vietnam. In fact, my symptoms were virtually non-existent before Vietnam. In addition, I have also developed claustrophobia and an alcohol abuse problem."

13. In a supplementary statement (Exhibit A2) the Applicant stated:

"2. Whilst travelling to Vietnam on operational service, I looked out the scuttle and I saw we were in the process of carrying out a jack stay transfer with HMAS Sydney.

3. We were at that time only no less than 60 feet apart travelling in a parallel position to each other.

4. This is consider (sic) to be a dangerous manoeuvre, because of the ship's proximity to each other, where things may go wrong very easily.

5. This was an obvious threat of death or serious injury especially as the voyager had been in a similar position in which I was involved.

6. My response to that event was that of intense fear, helplessness and I just had to get out of that cabin that I was in, put on my life jacket and get upstairs where I felt a little safer. My life jacket was on at all time when in company with HMAS Sydney.

7. On a separate occasion, whilst in Vung Tau Harbour, there was a serious threat expressed by the captain in calling "immediate action stations" which was designated as definitely not a drill, at which time we expected to be attacked.

8. This turned out to be a false alarm, but nevertheless, my response to that event was that I was intensely fearful, felt helpless and horror at the particular situation.

9. We did not know it was a ship until we were closed in action stations.

10. It was after each of these events that I sensed that my sense of anxiety worsened even though I did not realise it at that time."

14. In his oral evidence the Applicant said he had been seeing a psychologist (Sally Stephenson), since 1996, initially 2 - 3 times per week, now every 3 months or so and when taken to her report (T4/50) said it was true that he had told her with respect to the Voyager incident that:

"...He recalls an incident when he swam back to tell his other mates in the mess that he had found a free hatch. He reports seeing his mate, Lenny, and tried to help him escape. He grasped his friend's arm and tried to pull him to safety. He was unable to set him free and realised that he must have been caught under some heavy furniture. When he looked at his friend, he saw that his head had been 'smashed' and compacted by the force of what he believed may have been a metal table. He remembers the water level was rising quickly Mr Stevenson said he felt sad and helpless as he was unable to free his friend. He then realised his friend was dead. He was 'a good mate'."

15. He said he started getting nightmares 3 - 4 times a week not long after the Voyager incident and that he could not sleep. The Tribunal notes (T4/5) that at age 19, and shortly after the Voyager incident, the Applicant presented for psychiatric consultation at Balmoral Naval Hospital because of his nightmares. The Surgeon Captain (MOIC) referred the Applicant to the Surgeon Cmdr McGeorge (Consultant Psychiatrist) who on 12 June 1964 opined:

"Has nightmares about a mate who was lost on 'Voyager'. Is probably also afraid of going to sea as he is being posted to F.N.D. for a course, it is unlikely that he will be going to sea for some weeks. I suggest largactil 25mg t.d.s.p.c. for 1/12 after which he could report to the Consultant Psychiatrist in Melbourne."

The Applicant could not recall ever seeing a psychiatrist in Melbourne or Surgeon Cmdr McGeorge in 1964.

16. The Applicant served on HMAS Yarra from 12 May 1969 to 13 December 1971 and whilst on board this ship in the Far East attended the sick bay on 28 January 1970 (some three weeks before his first tour in Vietnam waters) complaining of persistent nightmares and poor sleep as a result of the Voyager incident. The Medical Officer (T4/8) diagnosed anxiety state and prescribed Stelagine for his anxiety and Soneryl for his insomnia noting that the Applicant should be reviewed in 2 weeks time and also noting the possibility of an appointment for the Applicant to see a psychiatrist in Singapore. The Tribunal notes that there is no record of the Applicant being subsequently reviewed either by the ship's Doctor or a psychiatrist in Singapore and the Applicant told the Tribunal he did not know about any appointment with a psychiatrist in Singapore and could only recall getting a sleeping pill from the ship's Doctor from time to time. He told the Tribunal he liked the Navy and would have liked to get over his fears and nightmares. He said that when at sea if the ship hit rough weather and rolled he would head for the nearest hatch for a way out.

17. The Tribunal notes that at T4/9 the Applicant presented to the sick bay on 4 March 1970 complaining of a recurrence of headaches and "blacking out" and falling forward on a typewriter. The ship's Medical Officer could find nothing wrong with the Applicant's central nervous system and again prescribed sleeping pills with light duties and rest in bed.

18. The Applicant told the Tribunal that his normal duties whilst on board HMAS Yarra involved him working in the regulating office as the Gunnery Officer's writer, where he was responsible for preparation of daily orders and watch bills. He said that when the ship was on action or defence stations and if gunnery was involved he was required to operate as a director aimer and his description of his duties in this position and generally whilst on board HMAS Yarra as given by Sally Stephenson were correct. The Tribunal notes that Sally Stephenson describes the Applicant's duties as a director aimer as follows (T4/51):

"1. On both tours of Vietnam Mr Stevenson's main role was a director aimer. In this role he worked in a compartment which was approximately five feet by four feet and six feet high. He said the director officer sat directly behind him, in an elevated position such that his knees were at the back of Mr Stevenson's head. The director officer was able to look out through a clear perspex bubble to see what was happening outside. To carry out his work, Mr Stevenson looked at a blank wall on which there was a panel of lighted dials. He said fixed binoculars in the wall of the side of the ship were his only means of viewing the sea scape. He said before going to Vietnam, he did not like being locked in the director during exercises as he often felt quite claustrophobic. He did not tell anyone as in the Navy it is normal procedure to do the job and then complain later. He also did not want to be laughed at by his mates. While in Vietnam, he spent 12 hours each day in this compartment. He said he became more anxious as he realised that this was 'fair dinkum' war and not an exercise. He said if the director officer had been hit by enemy fire, he would not have been able to escape.

Unlike the Voyager he said he had no obvious way of escaping as another person was blocking the way out. He said this experience reminded him of his feelings of helplessness when he tried to free his mate, Lenny, on the Voyager. While he was able to escape through a porthole on that occasion, he did not feel it would be easily possible if the officer director was struck by enemy fire. This gave rise to continuing distress for him. He was ultimately able to escape the Voyager. However, he believed he would be trapped in his position on HMAS Yarra in Vietnam, if the officer above him was immobilised by injury.

2. On both tours of duty to Vietnam, the HMAS Yarra was ordered to escort HMAS Sydney. This meant his ship lay within one and half miles of HMAS Sydney on both tours of duty. On one occasion it was necessary that his ship transfer equipment to the Sydney. This meant his ship lay approximately fifty feet alongside the Sydney while the transfer was carried out. The Sydney, although it was used as a troop carrier in Vietnam, had formerly been an aircraft carrier very like the Melbourne. He said just being close to HMAS Sydney was enough to get his mind running wild. He said he was in a continuous state of anxiety as he wondered 'Is it going to turn and hit us like the Melbourne'. He wore his life jacket around his waist at all times on the Yarra.

3. He said he and two other mates were often ridiculed by other sailors on the Yarra for wearing lifejackets around all the time. He said he was made to feel a 'woos' by the others. He recalls feeling very hurt and unsupported. He recalls thinking 'It can happen at any time, you never know when it is going to hit you and you can go over the side'. He said he felt highly anxious all the time, particularly when the ship was moving.

4. Mr Stevenson reports that after leaving Vietnam he really 'belted the alcohol'. He said that during his duty on the Yarra, he acquired some medicinal alcohol from the ships sick bay. He then injected pure alcohol into oranges and ate them while on duty. He remained on the Yarra for a two year period, this included both tours of Vietnam. He said while on the Yarra he never went ashore and came back on board sober.

5. Mr Stevenson said he had been having nightmares about the Voyager for many years. While on the Yarra he was afraid to go to sleep lying on his bed. During the periods of service in Vietnam and afterwards, he had nightmares about his ship being attacked by the enemy. He was thus afraid to go to sleep. When he did fall asleep, he would often wake up extremely distressed after having nightmares of aircraft dropping bombs or enemy bombarding his ship. He recalls at times, that he dozed while on duty on nightshift. He said he and his mate had an arrangement and they took turns to doze. Mr Stevenson was often woken by an officer. He also recalls requesting sleeping medication from the ship's surgeon during this period. The ship's surgeon gave him some medication.

6. Mr Stevenson is now more aware of how he used alcohol to avoid the distress he was experiencing in his life. He said his heavy drinking and the intense arguments between himself and his wife resulted in their separation on two occasions, in 1971 and 1973."

19. It was the Applicant's evidence that when the ship was on defence or action station he was generally required to do a 4 hour shift as director aimer every 12 hours, but on one of his tours to SVN he recalls having to do a 12 hour shift. He said duties as a director aimer stretched out over 2-3 days on each tour of duty to SVN and highlighted his feelings of claustrophobia and fear while carrying out such duties.

20. In cross-examination the Applicant said he recalled complaining in August 1973 about being posted to HMAS Melbourne and that as a result of his complaint about a week or so later his posting was changed to HMAS Penguin just prior to discharge in December 1973. He said that apart from this occasion he has not complained about going to sea and at all other times had "soldiered on" despite the fear he suffered at sea.

21. The Tribunal notes that the Surgeon Commander who saw the Applicant on 18 August 1973 compiled the following clinical notes (T8/92):

"18.8.73 This sailor presented complaining of his fear and anxiety about being in this ship. He was involved in the VOYAGER disaster and has been afraid at sea since. He has tried well with 6/12 in QUIBERON in 1964, 2 ½ years in HMAS PERTH and 2 ½ years in HMAS YARRA. On each occasion he has required sedation for sleep and has lost weight. He feels the same syndrome occurring again and wonders why he should accept it.

I S Whitehead Surg."

22. At T8/88, 89 it is recorded that Dr McGeorge (Consultant Psychiatrist) saw the Applicant again on 18 September 1973 and opined:

"I saw him in 1964 after the VOYAGER incident and as he was being posted to FND, recommended he should see a psychiatrist in Melbourne but this was not done which again suggests that his reaction was minimal. He claims that on every ship since he has been scared. When told of a posting 'he gets a bit restless' and only recently has found out that he has been upsetting his wife too. ... I consider that it would be useless to attempt psychotherapy and in view of the short term left to serve, that it would be best to have him posted to his home port if satisfactory work is to be obtained from him."

23. With respect to his consumption of alcohol the Applicant said he started drinking soon after the voyager incident and at this time described himself as a social drinker. He said he only became a heavy drinker after his tour of SVN, as soon as he hit land in Singapore and Hong Kong. He said he would drink 12 stubbies a day or more such that he would pass out every time he went ashore.

24. The Tribunal notes that the Applicant completed an alcohol questionnaire in February 1996 (T4/20,21) stating that he began to consume three large bottles of beer on a regular basis of 2 - 3 times per week in "to forget the VOYAGER accident, so that I can sleep". He said this increased on average to a carton of beer plus half a bottle of rum every day because of his service in Vietnam and bad memories and flashbacks to the Voyager incident. The Tribunal also notes that Sally Stephenson records in her report at T/50,51 that the Applicant's wife told her that when she first met her future husband in 1965 he was the life of the party and drank heavily; but on their wedding night she became aware of how much he was drinking; that he had always been a heavy drinker; but she soon discovered that her husband could be a nasty drunk; and that the Applicant reduced his drinking in 1969 but that he continued to drink heavily after his first tour in Vietnam in 1970.

25. He said he got married in 1967 and did not think he had marital problems before going to Vietnam. It was the Applicant's evidence that he could not recall being found on 27 September 1970 walking around his mess at 0300 hours asking for his wife.

26. Further in cross-examination the Applicant said that he had been first diagnosed with PTSD by Professor Raphael in 1993 in connection with a compensation case arising from the Voyager incident but that he did not know what PTSD was. The Tribunal notes that the Applicant's claim to the respondent for PTSD was made in 1996 and that this was the first time it was claimed that the veteran's condition was referable to his service in SVN.

27. The Applicant's wife, Mrs Julia Stevenson, told the Tribunal that she had left the family home on 2 occasions in the early 70s because of the Applicant's heavy drinking, violent behaviour and his reaction to claustrophobic situations. She said the problems all stemmed from the first time he came back from the Far East or "up top" as she described it.

28. With respect to Mrs Stevenson's evidence the respondent conceded that her evidence pointed to the Applicant being a user of alcohol when she first met him in 1966; and that there was an increase in the Applicant's consumption of alcohol in the early 1970s.

Medical Evidence

29. Dr Peter Mulholland, Psychiatrist, provided two written reports (Exhibit R1 and R2) and gave oral evidence.

30. In his written report of July 1999 Dr Mulholland opined:

"15.1 Alan Stevenson is comorbid for a number of psychiatric conditions in that the following diagnoses could be made in respect of him

* chronic post traumatic stress disorder

* chronic depressive disorder (dysthymic disorder)

* chronic generalised anxiety disorder

* chronic situational phobic disorder

* chronic alcohol abuse/dependence (in remission)

* chronic nicotine abuse.

15.2 There seems to be no doubt that this former sailor has had longstanding problems relating to anxiety, depression, alcohol excess and post traumatic type experiences. Inasmuch as these can ever be attributed to any single cause the Voyager disaster seems to have been a significant contributing factor, however any one person's psychiatric condition is always due to complex multi-factorial factors which include at least:

* basic genetic constitutional endowment

* early development experiences in childhood and adolescence

* life experiences and psychosocial stressors in adulthood.

15.3 It is often tempting, but rarely correct, to attribute a person's psychiatric/personality status to any one particular incident. Having said all that I have no doubt that the Voyager disaster would constitute a major or even a catastrophic stress. I consider that the Voyager disaster was a significant contribution to his subsequent psychiatric problems. The hypothesis had been advanced that it was his service on the Yarra in the enclosed gun control system and also the working in close company with the Melbourne that has activated his condition. At this time he gives a history, and it needs to be pointed out that this history is not entirely unreasonable of this having occurred, however I would have to say that such a conclusion is essentially hypothetical unless it was able to uncover some contemporaneous evidence which linked his anxieties and related conditions to his service on the Yarra and in particular to his service in SVN waters as is required for DVA requirements. It appears as though he had a pre-existing condition prior to 1970 in that his alcohol abuse was well established by that time and he also had a anxiety type condition with features of post traumatic stress. In these days he probably would have been diagnosed as suffering from PTSD and alcohol abuse/dependence prior to his first trip to Vietnam.

15.4 Inasmuch as his psychiatric condition can be attributed to any one factor or set of factors then it is due to the Voyager disaster. To attribute it to his service on the Yarra is not entirely unreasonable but requires some fairly creative post hoc re-interpretation of events. I think he had at least 2 pre-existing psychiatric conditions prior to SVN and that with the passage of time and especially as a result of the ravages of alcoholism (which may or may not have been due to the Voyager incident) his overall psychiatric condition has generalised and deteriorated".

31. In his report of 16 August 2001 in answer to the question "whether allotting Mr Stevenson for duty on HMAS Yarra in Vietnam would constitute an inability to obtain appropriate clinical management for PTSD?", Dr Mulholland said:

"2. Allotting him for service on the Yarra in Vietnam waters during that period of time would constitute an inability to obtain appropriate clinical management for PTSD at least in accord with today's standards. As I recall psychiatric standards at the time, namely early 1970 and 1971, unless a person was demonstrably psychiatrically ill then it would not have been regarded as medically appropriate to restrict a seaman's duties. Some 30 years later we are a little more sophisticated about these matters. It is my understanding that at the time he was not involved in any programme of psychiatric or psychological treatment in 1970 or 1971 and hence his going to Vietnam of HMAS Yarra would not have been a barrier or impediment to his receiving any psychiatric or psychological treatment because he was not going to obtain same in any event.

3. Another point that needs to be made is that there can be no assumption that because a person has a PTSD in response to a specific set of circumstances, and I think that Mr Alan Stevenson did have a PTSD in response to the Voyager disaster, then there is no reason to automatically expect that a PTSD might be exacerbated or aggravated by being exposed to other essentially stressful circumstances. It may turn out to be the case that being exposed to other somewhat similar circumstances may aggravate or may exacerbate a condition, but there can be no automatic expectation of same."

32. In his oral evidence, when referred to the history of the Applicant seeking medical help in 1964 and subsequent medical reports in the 1970s about his anxiety state (T4/5,8,9,10,11), Dr Mulholland said that he did not consider it inappropriate that at that time the veteran should have been referred to a psychiatrist for further assessment and that the treatment of the veteran's anxiety state on 26 January 1970 should have been followed up, but it was not. He also opined that while in the 1970s it was not a new idea to undertake psychiatric investigations and follow-ups, times have changed and he thought more would be done today than would have been in 1964. In cross-examination he expressed the view that with respect to the Applicant's duties on HMAS Yarra it would be inappropriate to restrict his duties without there being further investigation and there being a demonstrated psychiatric condition. He said he though some Doctors would have taken him off the ship but in his view the Applicant's condition had not been properly investigated.

33. He also expressed the view that the events on HMAS Yarra during the veteran's operational service would have brought the condition of PTSD more to light but these events would not have made his condition worse and that his condition would have come to full light in any event.

34. Dr Tucker, Psychiatrist, provided a number of reports and notes in the T Documents and gave oral evidence. At T4/19 Dr Tucker on 15 March 1996 stated that the veteran suffered from chronic PTSD caused by the Voyager incident, aggravated by the compensation case of three years ago and worsening since. On 17 May 1996 (T4/35-37) Dr Tucker reported further that the Applicant had chronic PTSD caused by the Voyager incident and with symptomatology becoming very severe since the compensation case. He referred in this report to treatment he and the veteran's LMO were providing. He reported:

"Response to this management has been limited with partial control of depression and some improved sleep. He is also somewhat less irritable and less of a suicide risk. Goals of treatment are limited to partial control of secondary effects and prevention of suicide, family breakdown, etc; because of the severity and chronicity of the PTSD. The prognosis of his PTSD is quite poor, for these reasons."

35. The Tribunal notes that in neither of these two reports did Dr Tucker refer to the veteran's service on HMAS Yarra. In his report of 20 November 1996 (T4/45,46-48) Dr Tucker recounted that the Applicant had told him of many situations during his Vietnam tours which had aggravated his PTSD symptoms and that he began drinking heavily at this time to cope with his PTSD and that this led to alcohol dependence.

36. In his oral evidence, in response to a question about treatment which could have been provided to the Applicant in 1964 when he first presented with anxiety problems, Dr Tucker expressed the view that the Applicant should have been comprehensively assessed and evaluated and this would have entailed 2 or 3 initial consultations with further follow-up consultations. As a result of this Dr Tucker would have expected as an outcome of these consultations, a clear diagnosis of the Applicant's condition and a management program to alleviate the Applicant's symptoms. Dr Tucker agreed with Dr Mulholland that times have changed and that while the approach to assessment and treatment in the early 1970s was similar to today's approach, such activities would be less acute in the 1970s than they would be today. With respect to the onset of the veteran's use of alcohol Dr Tucker expressed the opinion that the Applicant's alcohol dependence became clinically significant during and after his period of service in Vietnam at which time he clearly suffered from PTSD.

Submissions

37. It was submitted for the Applicant that he contracted PTSD as a result of the Voyager incident and that his PTSD was aggravated by his operational service on HMAS Yarra. It was further submitted that even by the standards applying at the time, the Applicant's condition should have been further investigated but this did not happen and the Navy were in the dark about the real source of the problems he was having. Given the service culture of "soldiering on", Mr Harding, for the Applicant, said that it was very unusual for a 20 year old to apply to see a psychiatrist and that this should have led to a proper and thorough investigation to determine what treatment was necessary. Had the Navy initially investigated Mr Stevenson's condition fully, it was submitted that appropriate clinical management, as it applied in the 1960s and 1970s would have resulted in the Applicant not going back to sea and as such he would not have got what was, in effect, inappropriate clinical management by being sent to serve in Vietnam waters.

38. With respect to the question of inability to obtain appropriately clinical management for PTSD it was submitted that the Applicant wanted to see a psychiatrist and took steps to do so, but apart from a preliminary examination nothing further was done, there was no on-going treatment and the problem was then aggravated by service in Vietnam. In consideration of this issue of inability to obtain appropriate clinical management, the Tribunal was referred to Repatriation Commission v Wedekind [2000] FCA 649 and Brew v Repatriation Commission (1999) 30 AAR 63; and in considering the issue of the Applicant's PTSD being aggravated during his operational service the Tribunal was referred to Johnson v Commonwealth of Australia (1982) 150 CLR 331.

39. With respect to whether the Applicant suffered a severe stressor as defined in the relevant SoPs, Mr Harding, for the Applicant, submitted that while there might be some difficulty in finding for the Applicant, nevertheless on a broad view taking into account the evidence about the Applicant's experiences during his operational service, the Tribunal should find that the veteran's experiences meet the definitions contained in the relevant SoP.

40. It was submitted that based on the material before it, the Tribunal should find that the Applicant's PTSD was war-caused.

41. Insofar as alcohol dependence is concerned it was submitted that if PTSD is war-caused, then based on Dr Tucker's evidence, the Applicant was alcohol dependent and this dependence was war-caused.

42. With respect to alcohol dependence, Mr Stoner for the respondent conceded that the veteran increased his alcohol dependence in the early 1970s when his alcohol habits significantly turned for the worst. It was submitted by Mr Stoner that the only way the Applicant could succeed with a claim for war-caused alcohol dependence would be if the onset of war-caused PTSD pre-dated alcohol dependence or there was a prior severe stressor during his operational service as defined in the relevant SoP.

43. With respect to PTSD the respondent accepted that the Applicant clearly suffered from PTSD which was rooted in the Voyager disaster. The question to be answered by the Tribunal is whether or not the Applicant's relevant service has given rise to an aggravation of that condition. In consideration of this issue, the Tribunal was referred to Federal Broom Company Pty Ltd v Selmitch (1964) 110 CLR 626 and it was submitted there was no evidence on any standard of proof by which the Tribunal could be convinced that their had been an aggravation of the Applicant's PTSD.

44. It was also submitted that in this matter there was no misdiagnosis as referred to in Johnson (supra). It was submitted that, with the benefit of hindsight, a diagnosis of PTSD at the relevant time could have been made but this does not extend to an inability to obtain appropriate clinical management where any such inability must be caused by operational service. The respondent pointed out that the Applicant had gone to sea for 5 ½ years after the Voyager incident without complaint (the only complaint being in 1973 when he was allotted to HMAS Melbourne) and there was no inability to clinically manage his psychiatric pathology during this time.

45. Insofar as stressors are concerned, it was submitted that the Applicant was already loath to be locked in when undertaking director aimer duties well before his period of operation service; that seeing HMAS Sydney close by during jack stay transfer or during escort duty and being concerned about threat of attack while in SVN waters all fall short of the requirement in either of the relevant SoPs. In consideration of this issue the Tribunal was referred to re Mulvaney v Repatriation Commission (2000) 59 ALD 602.

Consideration

46. This matter is contested on the basis that the Applicant suffered PTSD and alcohol dependence prior to his operational service but that both of these conditions were contributed to in a material degree by, or aggravated by his relevant service.

47. The Tribunal notes the Applicant's submissions with respect to PTSD, that a contribution in a material degree or an aggravation should be considered within the context of what his Honour Justice Kenny said in Repatriation Commission v Wedekind (supra) where at paragraph 21 Kenny J canvassed the meaning of the word "aggravation" in the context of a failure to diagnose and treat cancer resulting in a worsening or aggravation of that condition. Justice Kenny referred to the matter of Commonwealth v Johnson (1980) 31 ALR 445 and Johnson v Commonwealth (1982) 150 CLR 331 (see also Ogden Industry Pty Ltd v Lucas (1967) 116 CLR 537).

48. The Tribunal's attention was drawn in particular to the parallel in the Applicant's case in what their Honours Gibbs CJ, Mason and Wilson JJ said in Johnson v Commonwealth (supra) with respect to the statutory object of compensation legislation namely:

"The object of a statute is to provide for the payment of compensation to employees who suffer injury or disease occurring in circumstances connected with their employment by the Commonwealth... In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease. It would scarce conform to the broad policy underlying the statutory provisions to confer an entitlement to compensation in the first case but not in the second."

49. However, Section 120A of the Act applies in this matter and the Applicant's claim must be assessed by reference to any relevant SoP.

50. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Federal Court set out at pages 97 to 98 the approach to be taken by the Tribunal in cases like the present in which s120A of the Act applies.

"(i) 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.

(ii) 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.

(iii) 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.

(iv) 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. HMAS Voyager and HMAS Melbourne collided on the night of 10 February 1964 with subsequent loss of life of 82 members of the Voyager's crew.

52. The Applicant was 19 years of age at the time of the disaster and undertaking his first sea-going posting on HMAS Voyager. It would be remarkable if this incident had not affected him and made a significant impression on him.

53. It is common ground between the medical witnesses that the Applicant, at the time of his operational service, had long standing problems relating to anxiety, depression and traumatic type experiences.

54. While the Applicant's condition was not clinically diagnosed as PTSD until the early 1990s both of the medical witnesses that appeared before the Tribunal, and the Respondent, accepted that the Applicant's condition of PTSD had its originating event in the Voyager disaster. The Tribunal is satisfied on the evidence before it and the submissions of both parties that the Applicant, prior to his operational service, suffered from what is now labelled PTSD. It is also common ground and the Tribunal finds, based on all the material before it, that the Applicant was a user of alcohol prior to his operational service and that he began drinking heavily at the time of his operational service and subsequently.

55. After consideration of all the material before it, the Tribunal is satisfied that the material points to the hypotheses as contended for the Applicant in paragraph 8, connecting the Applicant's PTSD and alcohol dependence with the circumstances of his operational service.

56. As regards relevant SoPs, with respect to PTSD the RMA, pursuant to the Act has relevantly determined Instrument No 3 of 1999; and with respect to PSA, Instrument No 76 of 1998; and, as stated in paragraph 9 above, the Tribunal is satisfied that these Statement of Principles apply in the consideration of this matter.

57. The question that then arises is whether the contended hypotheses are reasonable. Following Deledio (supra) they will do so if the hypothesis fits the template in the relevant SoPs.

58. In addressing this question the Tribunal is mindful that it is not engaged on a fact finding mission. If the raised facts fit within the template of the relevant SoP then the hypothesis can be considered to be a reasonable hypothesis. If the hypothesis is reasonable the Tribunal must then go on to decide pursuant to s 120(1) of the Act, whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that each of the Applicant's conditions is war-caused. The claim, at this stage, will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

(See Dixon v Repatriation Commission (1999) 29 AAR 235; Hill v Repatriation Commission [2001] FCA 1775; and Byrnes v Repatriation Commission (1993) 177 CLR 564)

59. With respect to PTSD the hypotheses contended for the Applicant is that the Applicant's relevant service materially contributed to or aggravated his condition and that pursuant to paragraphs 5 and 6 of Instrument No 3 of 1999, one or both of the following factors exist:

"5 (b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder."

60. With respect to alcohol dependence the hypotheses contended for is that relevant service aggravated his condition and that, pursuant to paragraphs 5 and 6 of Instrument No 76 of 1998, one or both of the following factors exist:

"5 (c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or ... "

61. After consideration of all of the material before it the Tribunal has formed the view that the hypotheses are consistent with the "templates" in the relevant SoPs and as such are reasonable.

62. Common to both of the hypotheses is the question of whether or not the Applicant suffered a severe stressor during his relevant service.

63. Experiencing a "severe stressor" as defined in each of the relevant SoPs is set out in para 10 above. The definitions are the same except Instrument No 76 of 1998 (alcohol dependence) adds the phrase "which event or events might evoke intense fear, helplessness or horror".

64. With respect to interpretation of this definition the Tribunal is mindful that in Mulvaney v Repatriation Commission (supra) the Tribunal took the approach that the definition (or part of the definition) of experiencing a severe stressor namely "the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to a person's or other person's physical integrity" refers exclusively to objective considerations namely events which in fact involve actual or threatened death or serious injury or a threat to a person's physical integrity. With respect to the meaning of physical integrity the Tribunal said:

"The phrase 'physical integrity' is one of potentially wide connotation, its ordinary meaning being; bodily wholeness or soundness. In the Tribunal's opinion however, the connotation of that phrase as appearing in the definition of experiencing a stressor in the SoP concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase 'threat to......physical integrity in the abovementioned definition should be understood to be referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only'."

65. The Tribunal went on to find that the additional phrase in Instrument No 76 of 1998 (PSA), "which event or events might evoke intense fear, helplessness or horror", refers exclusively to subjective considerations, namely the person's own subjective response to the relevant event.

66. With respect the Tribunal adopts the approach taken in Mulvaney as outlined above.

67. After careful consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied beyond reasonable doubt that the Applicant did not experience a "severe stressor" during his relevant service, within the meaning of the definition of experiencing a "severe stressor" in the relevant SoPs. In arriving at this finding, the Tribunal accepts that the Applicant's subjective response to the various incidents he describes during his operational tour of duty on HMAS Yarra, namely jack stay transfer, duties as director aimer and escorting HMAS Sydney, involved intense fear and helplessness on his part and would have served as intense reminders of what happened to him in the HMAS Voyager incident. However the Tribunal is satisfied beyond reasonable doubt that there is no evidence of any event that involved actual or threat of death or serious injury or a threat to the Applicant's or other people's physical integrity. The Tribunal notes that there is no evidence before it of HMAS Yarra's Report of Proceedings for either February 1970 or February 1971, particularly with respect to the ship going to action stations. The Tribunal has based its finding on the evidence as presented by the Applicant. While the Applicant was not the best of historians the Tribunal is satisfied he answered the questions put to him truthfully and to the best of his ability.

68. For the reasons given above the Tribunal is satisfied, beyond reasonable doubt, that the factor referred to in paragraph 5(b) of Instrument No 3 of 1999 and the factor referred to in paragraph 5(d) of Instrument No 76 of 1998 do not exist thus disproving that part of the Applicant's hypotheses which relies on the Applicant suffering a "severe stressor" during his operational service.

69. The question then to be addressed with respect to the Applicant's PTSD is whether or not there was an inability to obtain clinical management.

70. In Brew v Repatriation Commission (1999) 50 ALD 403, Sundberg J addressed the meaning of the phrase "inability to obtain appropriate clinical management". At 407 his Honour stated:

"The meaning of 'inability' is that given by the Macquarie Dictionary (2^nd Ed 1991) - 'lack of ability; lack of power, capacity, means'. See also the new Shorter Oxford English Dictionary (1993) 'the condition of being unable; lack of ability, power or means'. The Tribunal was in my view correct in saying that a person who chooses not to seek medical treatment is not for that reason unable to obtain it. The word 'inability' is directed to an objective barrier to obtaining treatment, such as the absence of medical officers and not to a lack of willingness to obtain treatment. It was also argued that the Applicant was unable to obtain medical treatment because she did not during her service know that she had varicose veins. If this would otherwise be an inability 'for the purposes of factor (e), it is ruled out by clause 2 of the SoP, because lack of awareness is not a factor that is related to her service'."

71. And further in Brew v Repatriation Commission (1999) 30 AAR 63, the majority of the Full Federal Court said at 70 and 71:

"27. Thus if Sundberg J was saying that clause 1(e) is confined to an inability that is a 'subjective barrier to obtaining treatment' I would respectfully not agree with his Honour. However I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise that result in a claimant for a pension being in a 'condition of being unable' to obtain treatment ...

30 The second aspect of the AAT's decision that causes concern is the further suggestion in paragraph 42 of the reasons that subjective factors could constitute inability where the claimant was 'being subjected to some overwhelming psychological or emotional incapacity such as to prohibit her from obtaining appropriate clinical management whether it be by reason of the attitude of her piers or by the injury itself with some other circumstances'. In my view it would be erroneous to limit 'inability' to 'some overwhelming psychological or emotional incapacity'. If a veteran is subject to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition, I see no reason why those circumstances are not capable of constituting a 'condition of being unable' to obtain treatment."

72. In considering whether factor 5(c) of Instrument No 3 of 1999 is disproved or otherwise, within the context of the above authorities, the following questions need to be addressed:

(a) was the Applicant at the relevant time, unwilling to obtain treatment for his condition of PTSD;

(b) was the Applicant's condition correctly diagnosed (or was there a misdiagnosis of his condition) and was the treatment provided by the Navy appropriate: and

(c) was there an inability to obtain appropriate clinical management as a result of subjective factors at the relevant time or because of some service related barrier or service related lack of ability, power or means.

73. In addressing these questions the Tribunal is satisfied, beyond reasonable doubt, of the following facts:

Firstly, the Tribunal finds that while the Applicant was fearful at sea and that this fear arose out of the Voyager incident, he served at sea without complaint for the whole of his period of service until he was allocated to HMAS Melbourne at the end of his engagement. On receipt of this complaint the Navy acted promptly and allotted him to a shore posting.

Secondly, the Tribunal finds that the Applicant, post the Voyager incident and as a result of that incident, shortly thereafter suffered symptoms from time to time, including nightmares, flashbacks, insomnia and claustrophobia.

Thirdly, the Tribunal finds that the Applicant sought assistance from Naval medical authorities because of the above symptoms; and that the Navy responded by diagnosing anxiety state and prescribing medication for insomnia and anxiety.

Fourthly, the Tribunal finds that at no time during his relevant service in Vietnam waters did the Applicant complain to the ship's Doctor about symptoms of anxiety, depression or post traumatic experiences.

74. Turning then to the questions posed in paragraph 71 above.

75. Clearly the Applicant presented to Naval medical authorities with post traumatic symptoms soon after the Voyager incident, and subsequently, and the Tribunal finds that the Applicant was willing to undertake any treatment that the Navy might prescribe. The Tribunal accepts the Applicant's submission that it would be most unusual for a young Navy man of 19 years of age to apply to see a psychiatrist because of his nightmares and that this demonstrates not only a willingness but also a strong desire to seek help in overcoming his fears and nightmares.

76. With respect to whether the Navy correctly diagnosed the Applicant's condition during his service, the Tribunal finds that the Navy recognised that the Applicant was suffering an anxiety state as a result of a post traumatic cluster of symptoms of fear, nightmares, insomnia and claustrophobia. When viewed in the context of contemporaneous medical knowledge and practice, the Tribunal accepts the Applicant's submission that as far as appropriate treatment is concerned it matters not what "label" was put on the Applicant's post traumatic symptoms. The Tribunal is satisfied that viewed in terms of today's medical knowledge and practice the evidence before the Tribunal points to a diagnosis of PTSD, however given the evidence of the two Doctors appearing before the Tribunal regarding recent advances in diagnosing PTSD, the Tribunal is also satisfied that any technical diagnostic deficiencies in this case matters not in considering the question of appropriate clinical management at the time the Applicant's symptoms manifested themselves.

77. The next issue then is whether the Navy provided the Applicant with appropriate treatment for his post traumatic condition.

78. It is common ground between the two medical witnesses and the Tribunal so finds, that at the time of the Applicant presenting with symptoms of nightmares and fear of being at sea, it would have been appropriate for the Applicant to undergo a series of medical consultations with a view to determining what might be done to over come or alleviate the symptoms he was suffering. The Tribunal finds that Naval medical authorities failed to follow this course of action. There was no series of consultations to assess the causes of the Applicant's symptoms; suggestions about the Applicant seeing a specialist psychiatrist were not taken up; there was no counselling and there was no clinical management program devised. The extent of treatment provided by the Navy was to prescribe medication to assist the Applicant in overcoming his insomnia and anxiety on those occasions that he presented with post traumatic symptoms. Furthermore there is no evidence to show that the Applicant was counselled or that any consideration was given to restricting his sea-going duties.

79. With respect to an appropriate management program the Tribunal is mindful that without the benefit of contemporaneous investigation of the Applicant's symptoms and circumstances, there was no medical evidence with respect to details of an appropriate management plan other than the possibility of counselling and consideration of restrictions on the Applicant's sea-going duties.

80. In the absence of further evidence, the Tribunal can only surmise that despite Dr Mulholland's and Dr Tucker's opinions about what might be appropriate in the 1960s, it was not normal RAN medical practice to routinely provide counselling and psychiatric treatment to crew members of HMAS Voyager.

81. After consideration of all of the material before it and the submissions of both parties, and for the reasons given above, the Tribunal finds that the Applicant did not and could not obtain appropriate clinical management for the post traumatic symptoms he suffered following the Voyager incident.

82. The Tribunal also finds that this inability to obtain appropriate clinical management continued during his period of service on HMAS Yarra including his two tours of service in the Far East and including his two short terms in Vietnam waters.

83. The crucial question then is whether this inability to obtain appropriate clinical management of PTSD is related to the Applicant's relevant service.

84. Mr Stoner, for the Respondent, contended that while there is persuasive authority for the proposition that clinical onset of PTSD can be established in this case by relying of medical opinion which, with the benefit of hindsight, would have enabled the diagnosis to be made, this proposition does not extend to the concept of inability to obtain appropriate clinical management. It was further submitted that any ability through the 1960s and 1970s to appropriately manage the Applicant's condition could not be linked to the two short periods of the Applicant's operational service and that the SoP absolutely requires that the inability be caused by the Applicant's eligible service.

85. Mr Harding, for the Applicant, on the other hand submitted that while any inability in the 1960s is not related to his relevant service, it has a flow through effect through his relevant service, resulting in the Applicant receiving inappropriate clinical management by being sent to Vietnam.

86. The Tribunal does not accept the Applicant's submission. In this matter the Tribunal is satisfied that even though the Applicant, with hindsight, did not receive appropriate clinical management in the 1960s and subsequently, the evidence before the Tribunal is that the Applicant liked the Navy, went to sea without complaint until October 1973, took part in exercises and tours of the Far East, and while he presented on occasions with anxiety symptoms, the Navy reasonably assumed he was coping with sea-going duties. The Tribunal finds that a sea-going posting to the Far East including two periods of duties in Vietnam waters was not inappropriate and it cannot be said that he received inappropriate clinical management by being sent to Vietnam. Furthermore the Tribunal notes that at no time during his operational service did the Applicant complain of any post traumatic symptoms as a result of this service and indeed it was not until his claim in 1996, which is the matter under review, that he stated that his PTSD was referable to his operational service in Vietnam.

87. While the Tribunal finds that the Applicant was unable to obtain appropriate clinical management of his PTSD during his operational service, the Tribunal is satisfied beyond reasonable doubt that there is no linkage between that inability and the Applicant's operational service; nor are there any objective or subjective barriers arising from the Applicant's operational service which would lead to a conclusion that there was an inability to obtain appropriate clinical management for his PTSD. The Tribunal is therefore satisfied beyond reasonable doubt that the requirements of the SoP with respect to inability to obtain appropriate clinical management are not met.

88. The Tribunal finds that the Applicant's claim for war-caused PTSD does not fit the relevant factors in Instrument No 3 of 1999 that apply to material contributions or aggravation and that the Applicant's claim for war-caused PTSD is without justification.

89. After consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied, beyond reasonable doubt, that there are no sufficient grounds for determining that the Applicant's PTSD is war-caused.

90. Turning then to the question of the Applicant's alcohol dependence. As already indicated above, the Tribunal has accepted that the relevant raised facts support the Tribunal's view that there is a reasonable hypothesis connecting the Applicant's alcohol dependence with the circumstances of his relevant service.

91. Turning then to consideration of whether the relevant factors in Instrument No 76 of 1998 are disproved or otherwise, the Tribunal accepts the Respondent's submission that, pursuant to the relevant SoP, for the Applicant's claim to succeed, he must be suffering from a psychiatric disorder related to his relevant service at the time of the clinical worsening of alcohol dependence or he must have experienced a service related severe stressor within the two years immediately before the clinical worsening of alcohol dependence.

92. Consistent with the Tribunal's reasons and findings above with respect to war-caused PTSD, the Tribunal is satisfied beyond reasonable doubt, after considering all of the material before it and the submissions of both parties, that factor 5(c) (suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse) and factor 5(d) (experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse) do not exist and the Applicant's claim for war-caused PSA is without justification.

93. After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's alcohol dependence is war-caused.

94. It follows for the reasons given above that the Tribunal affirms the decision under review.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way (Member)

Signed: .....................................................................................

Associate

Date/s of Hearing 4 December 2001

Date of Decision 1 March 2002

For the Applicant Mr Harding

For the Respondent Mr Stoner