Miller and Repatriation Commission [2002] AATA 1309 (18 December 2002)

Last Updated: 8 January 2003

DECISION AND REASONS FOR DECISION [2002] AATA 1309

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1346

VETERANS' APPEALS DIVISION )

Re JUNE MILLER (IN THE ESTATE OF ROBERT NORMAN MILLER)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Miss E A Shanahan, Member

Date 18 December 2002

Place Melbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that alcohol dependence, depressive disorder and claustrophobia were war-caused diseases with effect from 2 March 1997.

(Sgd) Joan Dwyer

Senior Member

VETERANS' AFFAIRS - claim to have alcohol dependence, depressive disorder and claustrophobia accepted as war-caused - operational service - whether conditions war-caused due to incident when applicant and others almost lost consciousness due to fumes while painting a tank- unsatisfactory nature of evidence - not such as to allow finding to be made beyond reasonable doubt that event did not occur - decision set aside

Veterans' Entitlements Act 1986 ss 9(1), s 120, s 120A(1) & (3), s 196B(1) & (2)

Statement of Principles Instrument Nos. No. 5 of 1994

Statement of Principles Instrument Nos. No. 65 of 1996 as amended by No. 181 of 1996

Statement of Principles Instrument Nos. No. 48 of 1994

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Webb (1998) 51 ALD 575

East v Repatriation Commission (1987) 74 ALR 518

Bushell v Repatriation Commission (1992) 109 ALR 30

Lees v Repatriation Commission [2002] FCA FC 398

REASONS FOR DECISION

18 December 2002 Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Miss E A Shanahan, Member

1. This is an application under the Veterans' Entitlements Act 1986 ("the Act") for review of a decision of the Repatriation Commission made 13 November 1997. That decision in part refused Mr Miller's claim for acceptance of anxiety and depression and substance abuse alcohol as war-caused diseases under the Act. That decision was affirmed by the Veterans' Review Board ("the VRB") on 11 October 1999.

2. Mr Miller died on 25 October 2000 aged 61 years as a result of a motor vehicle accident. The Tribunal was informed that Mr Miller was the driver of the vehicle and that his blood alcohol level was over the legal limit. The Repatriation Commission on 5 June 2001, under s 126 of the Act, approved Mrs Miller as the person entitled to continue this application.

3. Mr G Moore of Counsel appeared on behalf of Mrs Miller. Mr G Purcell of Counsel appeared on behalf of the Repatriation Commission. Mrs Miller did not attend the hearing or give evidence. She was Mr Miller's second wife and did not meet him until many years after his operational service (T24 p.85). Telephone evidence on behalf of the applicant was given by Mr Hughes and Mr Daniel who served with Mr Miller. Dr Cooper, a psychiatrist, also gave evidence for the applicant. The respondent called Captain Josephs of Write Way Research. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.

SERVICE HISTORY

4. Mr Miller served in the Royal Australian Navy (RAN) from 27 August 1956 to 24 June 1963. His eligible war service, which is also operational service, was in HMAS Quiberon in the Far East Strategic Reserve ("FESR"). The Repatriation Commission decision lists Mr Miller's periods of operational service as follows:

* 17 March 1958 to 3 April 1958;

* 13 August 1958 to 5 September 1958;

* 20 November 1958 to 23 January 1959;

* 27 January 1959 to 1 March 1959;

* 8 March 1959 to 28 April 1959;

* 23 June 1960 to 8 July 1960;

* 15 July 1960 to 16 August 1960;

* 10 September 1960 to 10 October 1960;

* 14 October 1960 to 8 November 1960.

THE NATURE OF THE CLAIM

5. There is no dispute about the fact that Mr Miller suffered from alcohol abuse or dependence, and from a depressive disorder. On Dr Cooper's evidence Mr Miller also suffered from claustrophobia, but not from generalised anxiety disorder. The issue is whether those conditions should have been accepted as war-caused diseases.

6. By the time the matter came on for hearing, the hypothesis relied on as establishing that the claimed conditions were war-caused diseases, related to one particular incident. It was claimed that Mr Miller and two other sailors had been doing maintenance work in a freshwater tank in HMAS Quiberon and someone had turned the ventilation fan off while they were in the tank. He and the other sailors had almost lost consciousness when they were dragged from the tank. Mr Miller claimed in evidence to the VRB, and in the history he recounted to doctors, that as a result of that incident he developed fear and anxiety and headaches and suffered nightmares in which he would get out of bed as if trying to crawl out of a tank.

7. The incident in the tank was not referred to by Mr Miller in the claim he lodged on 2 June 1997 (T5 p14) to have anxiety, depression and alcohol abuse accepted as war-caused diseases.

8. In that claim he stated that he first became aware of anxiety and depression in 1958. He explained how service caused the disabilities as follows:

Suffered periods of anxiety and depression on o/s [overseas] duty and ever since. Attempted suicide March 97 and was hospitalized Cairns Base - placed in intensive care, still unsettled, is on ongoing treatment.

As to the claim for "substance abuse, alcohol", the claim form, (T5, p14) states:

Drinks to try and escape the way he is feeling.

9. The T documents include a record of a telephone conversation, probably between an employee of the Department of Veterans' Affairs and Mr Miller, on 19 May 1997 (T docs p19). In that conversation Mr Miller apparently attributed his depression to being lonely and homesick on overseas duty. As to drinking, that document notes:

Drinking, commenced 1958. Peer Pressure, stress of job stoker engine room, beer supplied onboard. 1 [? partly illegible] large cans per day, readily available and very cheap. Homesick drank to forget.

10. At the time Mr Miller lodged his claim in June 1997, he may not have understood the requirements to have a disease accepted as war-caused under the Act. The grounds he had specified would not have allowed his diseases to be accepted.

THE PROCESS OF DECIDING WHETHER A DISEASE IS WAR-CAUSED

11. Section 9 of the Act sets out the circumstances in which an injury or disease shall be taken to be war-caused. So far as relevant it provides:

9 War-caused injuries or diseases

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

12. The standard of proof is set out in s120 of the Act. Where a veteran has operational service the relevant provisions are s120(1) and (3). They provide as follows:

120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

. . .

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

Section 120A(1) and (3) of the Act, so far as relevant, provides as follows:

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;

. . .

. . .

(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 .....

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

13. Section 196B(1) and (2) of the Act provide:

196B Functions of Authority

(1) This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2) 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).

14. The Repatriation Medical Authority has determined Statements of Principles ("SoPs") in respect of each of the relevant diseases, except for claustrophobia.

15. Where there is a relevant SoP the Tribunal must decide the matter before it in stages or steps, as explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. The Full Court said at p206:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ...

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

16. It was agreed that, applying Repatriation Commission v Gorton [2001] FCA 1194, the SoP current at the date of hearing was applicable, save that if another one was in force when the primary decision was made, and was more beneficial to an applicant, the applicant was entitled to rely on that SoP. On that basis the relevant SoPs were agreed to be: alcohol dependence, No. 5 of 1994 and depressive disorder, No 65 of 1996 as amended by No. 181 of 1996.

THE MATERIAL BEFORE THE TRIBUNAL

17. Mr Miller's claim in respect of depressive disorder and psychoactive substance abuse was refused by the Repatriation Commission on 13 November 1997. He applied for review by the VRB, and in support lodged a report from Dr Pomorin, a psychiatrist, dated 5 May 1998. Dr Pomorin wrote (T17 p60):

He was involved in operational service in Malaya during that time on two separate Tours.

Mr. Miller claims that the oppressive tropical heat and the fear of attack caused him to develop a Depressive Illness, Migraine and Psychoactive Substance Abuse.

He said that he sought help for his headaches at the time, however I am not sure that his Navy Medical Records confirm the same.

He did not seek help for his Depressive Disorder nor his Psychoactive Substance Abuse until January 1997 following a suicide attempt whilst he was living in Queensland.

18. The T documents include a number of documents (T24-T30) which were received by the VRB on 31 August 1999. Those documents include a handwritten letter from Mr Daniel to Mr Miller (who was known in the Navy as Dusty) (T28 p91 transcribed at A3). It is dated 14 August 1998 and seems to have been intended to remind Mr Miller of the incident involving the freshwater tank. Mr Daniel wrote:

Dusty,

Hope Bill Patterson was able to give you some assistance and put you on the right road.

You must think back to things that happened. We never reported usually from fear of being called an idiot or worse a malingerer because we wanted to see a medic.

What about the time 4 or 5 of you were painting in a tank and flaked out. Everyone was very casual about the episode I think. In my years of engineering selling we also sold paints etc. and I can assure you we had to be spot on with our instructions for handling. Actually if you were using any epoxy or similar you could have lung damage. It was those products that killed a lot of people in Pepol (sic Beohol) India about 15 years ago. Check it out, we were in FESR when you did that job so you would be covered.

Keep in touch.

Kind regards

(signed) Tony Daniel. (emphasis added)

19. The documents sent to the VRB on 31 August 1999 included a report dated 18 January 1999 from Mr Coates, a professional counsellor (T27 p90). He wrote:

Robert Miller served in the Royal Australian Navy on full operations from 1956 at the age of 17 years until the age of 25 years in 1964 when he was honourably discharged; during that time he saw active duty in enemy occupied waters in Malaya.

During that time Robert Miller suffered extreme traumatic reactions as the result of being locked in a "fresh water" tank where there were toxic fumes, which almost cost him his life, and he continues to suffer from Pulmonary Tubercolosis and Post Traumatic Stress Disorder for which he is regularly prescribed Temazapam and Valium tablets.

I have been advised that prior to Robert Miller entering the Royal Australian Navy at the age of 17 years he was a non-drinker of Alcohol and that during his service in the Navy he was issued with alcoholic rations which encouraged him to become a drinker.

20. On 31 August 1999 the VRB also received a short report dated 11 February 1999 from Dr Gunter, a psychiatrist (T26 p89) which read:

Robert suffers from alcohol abuse, depression, anxiety related to his R.A.N. experience in a water tank when he nearly died.

21. The VRB was also sent, at the same time, a report from a psychologist, Mr Thornton, to whom Mr Miller had been referred by the Vietnam Veterans' Counselling Service. The history set out in Mr Thornton's report of 9 August 1999 (T24 pp85-86) is as follows:

"The problem began" when he was working down in a fresh water tank painting and unbeknown to him another sailor did not like the sound of the fan, which was keeping him awake and turned it off. Apparently he and his colleague collapsed and then he recalls being above deck. He has had nightmares since. His wife says that he will get out of bed during a dream assuming to crawl his way out of the tank. He says he recalls his brain spinning and scrambling. He has had headaches and migraines since which he attributes to the fumes.

After the freshwater tank incident he would deliberately drink to avoid thinking about it, he would try to get out of any work associated with the tank and was told he would cry out at night.

He does not cope with being down below on boats but is comfortable on deck. It is the fear of being trapped below and reminders of enclosed or stuffy places which is difficult and distressing.

22. In the VRB hearing on 11 October 1999, the incident in the freshwater tank was relied on by Mr Miller as the basis of his psychiatric conditions. He gave a detailed description to the VRB. A summary is set out in the VRB reasons for decision ( T docs pp xi-xii) as follows:

In answer to questions from the Board, Mr Miller said that he believed the incident would have occurred on his second operational trip on HMAS Quiberon because he believes that after he came ashore he wrote to his mother about the incident. His mother does not now have the letter and he wrote to her monthly but he considers that would have been the correct date.

In describing the incident he said the tank was very large like a ship's container and agreed it probably would have been something between 6000 to 7000 cubic feet. He said that the engineer decided that the painting should be carried out at sea as the ship's Captain had complained that some of the men were doing nothing. The engineer therefore decided that they could paint the tank. This was because some rusty water had been getting into the showers.

He said that there were three men involved. He does not remember coming out of the tank or what happened until he came to on the deck. He said they were not in harbour but were steaming along the Malay coast. He said that he was taken to the sick bay who "gave us heaps of Aspros". When asked whether there was a sentry watching while they painted Mr Miller said he must have disappeared. It was drawn to his attention that it was highly unusual for such painting to be undertaken at sea but Mr Miller was sure that it had occurred at sea. When asked whether they had been supplied with respirators he said they had not been given to them. He said "all I can remember is a couple of guys pulled us out". He agreed there was a doctor on board but he only saw a sick birth [sic] attendant not the doctor. He said that the sentry was not charged or disciplined. As far as light duties were concerned he said that other sailors relieved him of his duties for a few days but there was no official direction that he undertake light duties and, in fact, the engineer never spoke to him about the incident.

When asked why he had not mentioned this incident to Dr Pomerin [sic] when he had interviewed him he said that he had forgotten as he was half drunk.

He said that the main after effect for him following the tank incident was the development of a migraine the first which occurred the following day or approximately then. He went to see the doctor that day about his migraine and was given more Aspros. When asked why he had not seen the doctor after the tank episode he agreed that he saw that episode as so insignificant as not to require a doctor but he saw his migraine as a major problem.

The Board did not have available to it the service medical documents but Mr Laidler had obtained a copy from Canberra. The Board noted in those documents that Mr Miller had undertaken a divers course in 1960 and asked him about that having in mind that he had said that after the tank incident he refused to go into the tank again and his superiors allowed him to get away with this. His response was that although he did the divers course he did not follow it up. When asked why he had not seen a doctor or why no one had brought to a doctor's attention the incident in the tank he said he did not wish to be seen as whinger and in effect that most sailors did not complain about things like that. The Board drew to his attention the fact that the service medical documents indicated that he had had numerous visits to doctors many of them for extremely minor matters. He was unable to explain this. (emphasis added)

The VRB concluded that the tank incident "even if it did occur" was not for Mr Miller a "severe psychosocial stressor" as required by the relevant SoP.

23. The VRB affirmed the rejection of Mr Millers claim to have psychiatric conditions accepted as war-caused because it found that the tank incident was not sufficiently stressful to meet the definition of a "severe psycho social stressor" in the SoP for depressive disorder. The Board pointed out that there was no evidence that Mr Miller regarded the incident as significant at the time.

24. Mr Miller did not expressly tell the VRB that he and the other stokers had been taken to the sick bay. The transcript of the VRB hearing (R3 p12) shows him saying:

And we were right up in the front of the tank and it had a ventilator going through it. That was probably okay, but somebody turned it off. It is just that one guy walked past and saw it was turned off and we were down there half conked out. I don't remember coming out of the tank; I don't remember what happened after the tank. All I remember was we were sitting on the focsle and we were steaming along the . . . coast and getting plenty of fresh air. So it was definitely at sea and it wasn't in harbour. We just sat up on the focsle, which you know what the focsle is, and just sat there and suffered headaches. And what they gave us from the sickbay was some heaps of Aspros. And we smoked a few cigarettes.

At transcript, page 13, he added:

I flaked out. I don't know. I don't remember. All I remember is that a couple of guys dragged us out, all right, and they pulled us up in - I don't know. I think we went on to the sickbay and they said, oh, just go and give them some fresh air and a few Aspros when they wake up.

25. Mr Moore referred the Tribunal to a passage, on page 16 of the VRB transcript, where Mr Miller had described the effects of the incident as more significant than in the passage on which the VRB had relied. The transcript reads.

MS FITZGERALD: No, after this episode how did you feel?

MR MILLER: Pretty traumatic and stressed.

MS FITGERALD: What does that mean?

MR MILLER: I still suffer from - I can't stand dark rooms. I've got to sleep with a light on otherwise June says I get up in the middle of the night and try to crawl out of the - she says you are trying to crawl up the walls as though you are trying to get out of something.

THE MATERIAL RAISING OR POINTING TO A HYPOTHESIS

26. At the hearing evidence was given by Mr Hughes and Mr Daniel both of whom served with Mr Miller in HMAS Quiberon. The Tribunal had two statements by Mr Hughes. The first is dated 16 September 1999 (T docs pp106-7 and A1). It reads as follows:

The incidence [sic] regarding Robert Norman Miller which happened on board H.M.A.S. Quiberon. To the best of my recollection was R. Miller and two other crew were working in a confined tank area. When their fresh air pump, which was on the upper deck was turned of(f). By the time they evacuated the tank, all showed signs of dizziness and respiration problems all three were attended by the Sick Berth Attendant as I recall and were transferred to the Sick Bay as much as I can remember(ed), Hoping that can help you.

27. Mr Hughes also provided a statement dated 25 February 2002 (A2) in which he said:

* THAT I served in the Navy from 1956 to 1962 including service aboard HMAS Quiberon from 7 January 1958 to 26 January l96l.

* THAT I was aboard for the voyages classified as FESR ie the Far East Strategic Reserve up untiI I was drafted to HMAS Cerberus after HMAS Quiberon.

* THAT I served with the late Robert (Dusty) Miller on all of my FESR voyages.

* THAT although it was definitely during one of these FESR voyages, I can't remember whether it was at sea or whilst in port when Dusty told me about an incident when he and two others whose names I can't remember were doing maintenance work in a fresh water tank and someone turned the ventilation fan off.

* THAT he said there were three of them in the tank and after someone realised they were down there, all three were brought up on deck for some air . Others aboard ship were also aware of the incident because we were a close knit mob and the matter was talked about.

* THAT the incident may not have been officially reported or even admitted to, because one of our station room staff would have been the sentry and for the incident to have happened he must have been away from his post. Another reason may be that the ships safety precautions could have been thought of as not having been observed.

* THAT I have had some contact with Dusty over the years and am aware that he had some significant and ongoing problems with alcohol abuse. In more recent times he reminded me about our conversation regarding the tank incident and I did say to him that I remembered something about it.

28. When Mr Moore asked Mr Hughes, while he was giving evidence over the telephone, to confirm that his statements were true he qualified that statement to some extent. He said (trans. p6):

. . . now, this was hearsay to me. I didn't actually see them transferred to the Sick Bay and I only surmised when you think back who was the Sick Bay attendant and I couldn't recall his name. So I did not see them transferred there. I did not see the other three actually - or other two. It was only Dusty that I saw . . .

29. Mr Hughes in cross-examination said that much of what was in his typewritten statement was only what he was told. He added (trans. p16):

"On the mess deck it was talked about but it was mentioned but let me tell you, because of the state that I saw him in I guess it was just sort of a minor incident".

30. Mr Hughes said that he did not know anything of the incident until Mr Miller told him about it. He said that was on the day of the incident, when Mr Miller came down to the mess deck about an hour or an hour and a half after the incident. He said there was talk on the mess deck that Mr Miller had been down the tank and someone had turned the exhaust fan off. He said that Mr Miller was "Just a bit dejected, that was all. He wasn't stressed out, I couldn't say anything like that, you know, just a bit dejected" (trans. p7). He said Mr Miller was sitting in the mess deck, but "he didn't look terribly upset. He was just sitting there" (trans. p13). Mr Hughes said Mr Miller told him "when he got out they took them up on the focsle for fresh air" (trans. p13). He said it was not correct for him to say, as he did in his statement A1, that the men all showed signs of dizziness and respiration problems. Mr Hughes said when he saw Mr Miller he was not apparently dizzy or having respiration problems.

31. Mr Hughes said that he and Mr Miller used to go ashore on the odd occasions and they had a drink from time to time. He said that when Mr Miller was a trainee in HMAS Cerberus, he was not a great drinker, but he did progressively take to alcohol later on. Mr Hughes was unable to say with any accuracy when Mr Miller's drinking had increased, but he said "when I wasn't ashore with him or seen him ashore there, he would get pretty well stoned".

32. Mr Hughes kept in contact with Mr Miller after they both left the Navy, even after Mr Miller left Melbourne and went to Queensland. He said he saw him about a dozen times over 40 years. He said that Mr Miller stayed with him for a week not long before he was killed in the car accident. During this time he said, "I noticed he just couldn't leave the alcohol alone and I did suggest to him that he wouldn't get any help through the end of a brown bottle".

33. In cross-examination, Mr Hughes said that he believed that the tank incident occurred in harbour at Singapore. When it was explained that Mr Miller had said it occurred at sea, he said maintenance like that was always done in harbour, but he was not sure that it was at Singapore. He explained the precautions that would be taken when a tank was painted. He said there would be a sentry on the exhaust pump. He said a pump would be rigged up to provide fresh air in the tank, and there would also be an exhaust fan to suck air out. He said the order to paint the tank would come from the engineer and would have been passed on to the stokers by a Chief Stoker.

34. Mr Hughes said that the Chief Stoker was Chief Lively, and Petty Officer Heron acted as Chief at times. He said they were both pretty conscientious about things like safety precautions. He said the incident occurred before noon but he could not remember who the other two stokers were.

35. The Tribunal wondered whether Mr Daniel's letter of 14 August 1998 had refreshed Mr Miller's memory, or had put an idea into his mind. The Tribunal raised that matter with Mr Daniel when he gave evidence. He said he had written to Mr Miller, giving him the advice to talk to the RSL advocate, Bill Patterson, because Mr Miller had been having problems. He said Mr Miller must have previously told him about the tank incident, for him to have referred to it in that letter. He denied that he had suggested the story to help a man to whom life had been pretty hard.

36. Mr Daniel said he did not actually see the incident. He did not know whether he learnt about it in the evening of the day it happened or the next day. He did not recall whether he discussed it with Mr Miller himself, or whether he just heard about it from others.

37. Mr Daniel had very little recollection of when or what he learnt about the incident during his service. He said as far as he recalled not much fuss was made about the incident because they were young and did not worry much about things like that.

38. As to drinking, Mr Daniel said he went ashore with Mr Miller many times and, "We were all heavy drinkers then" (trans. p36). He said he did not notice any change in Mr Miller's drinking habits after the tank incident, "We were just continuous heavy drinkers".

39. The respondent had obtained two reports (R4 and R5) from Captain Josephs of Writeway Research Services and also a report from Professor Dennis of the Australian Defence Force Academy. They said that there was no record of the alleged incident in any of the naval records available.

40. Captain Josephs had spoken to Commodore Raoul Jones who was the Engineer Officer of HMAS Quiberon at the relevant time. Captain Josephs wrote of his discussion with Commodore Jones (R4 p2):

While Commodore Jones has no recollection of the alleged incident, and feels that an occurrence of such potential gravity would remain in his memory, he does not discount the slight possibility that if it had taken place CPO Lively could have dealt with it and, for some unexplained reason, had failed to inform him. He also feels that in such a "close community" as HMAS Quiberon it would not have taken long for the story to have got around. Commodore Jones recalls that the Sick Berth sailor during his time on the FESR was very reliable and highly regarded, and would be expected to have recorded in the veteran's medical records any treatment given in such circumstances.

41. Captain Josephs reported having spoken to both ex CPO Lively and ex PO Heron, neither of whom had any recollection of the incident, and both of whom said they thought they would remember it if it happened while they were CPO or relieving CPO. Captain Josephs said he had also spoken to a number of other officers who served in HMAS Quiberon at the relevant time. None remembered hearing of the alleged incident. Some said they would have expected it to be recorded if it occurred.

42. In his second report (R5) Captain Josephs reported on further research he had undertaken to see whether there had been any record made of maintenance work being performed on HMAS Quiberon's water tanks or of problems with the quality of fresh water which could have led to such maintenance. He reported he had not found any such record. He concluded (R5):

My examination did not identify any log entries of relevance to the late veteran's contentions. There were several entries in Quiberon's logs concerning minor accidents on board when sailors sustained cuts, bruises and contusions, indicating that such incidents were recorded when observed or reported. The extraction of three semi-conscious men from a water tank would have been likely to involve several rescuers and a certain commotion, and it would be surprising if this had gone unnoticed.

ALCOHOL DEPENDENCE

43. It is not clear when Mr Miller was first diagnosed as suffering from alcohol related disease. He said in his claim form that he had been suffering from alcohol abuse since 1958. Mr Thornton (T24 pgs 84-87) recorded that Mr Miller commenced drinking while in the Navy, and after the tank incident "deliberately drank to avoid thinking about it". Mr Miller told Mr Thornton that he did "vet science" for two years after his Navy service "and dropped out because of alcohol". He noted that the drinking was "markedly aggravated after the freshwater tank incident". Mr Thornton stated that the records of admission to "Ward 17" at Heidelberg Repatriation Hospital gave a diagnosis of alcohol dependence.

44. Dr Cooper also made a diagnosis of alcohol dependence. He noted in his report of 8 November 2000 that Mr Miller commenced drinking at 9am and had been charged on three occasions with drink driving. The history Mr Miller gave Dr Cooper was of starting drinking to excess in the late 1950's while in Malaya.

Step 1

45. Applying Step 1 of the four steps set out in Deledio, Mr Miller told the VRB (VRB trans. p16) that after the occurrence when he was "dragged out" of the freshwater tank he felt "Pretty traumatic and stressed". He added, at VRB trans. p18, that he still suffered effects of that incident, namely:

I can't stand dark rooms. I've got to sleep with a light on otherwise June says I get up in the middle of the night and try to crawl out of the - she says you are trying to crawl up the walls as though you are trying to get out of something.

46. Mr Miller told the VRB that the incident in the tank affected his alcohol consumption. He said (VRB trans. R3, p21):

".... Well, prior to joining the Navy .... I was quite an up and coming young athlete. Went to Malaya and became kind of - alcohol, a vagrant, because of freebie issues. Then after the tank issue I sort of increased my alcohol consumption considerably because lots of guys didn't drink their beer issues so - because the doctors wouldn't recognise such things as migraines, they used to generally just think big headache, they used to just fill me up with Aspros, so I used to just knock off a few beers and that would knock me down. I used to go on watch drunk, sometimes, because I would probably drink half a dozen.

MS FITZGERALD: Did you drink because of the migraine?

MR MILLER: Yeah.

MS FITZGERALD: And when did they start?

MR MILLER: They started after I was in the tank. I got a thumping headache when I came out of it and I explained to the doctor, and he just said, oh, no, there is nothing to worry about, son, Aspros will - migraines are something that he didn't believe in, so I said, you're the doctor, not me.

MR FAGAN: When did you see the doctor, then, Mr Miller?

MR MILLER: I went and saw him and saw him and said I'm suffering from these horrible headaches, and he said, oh, well - - -

MR FAGAN: After you came out of the tank?

MR MILLER: Yea. And he said, oh, don't worry about it; just take some more Aspros. He didn't even put it down. Just give me a handful of Aspros, and that was that.

MS FITZGERALD: How soon after you came out of the tank did you go and see the doctor?

MR MILLER: Oh, probably the next day.

MS FITZGERALD: Did you tell him what had happened?

MR MILLER: Oh, he didn't seem to care. He was too busy trying to ..... the water, so I'd either get on the booze or go to sleep. Doctors in those days were only doing an internship on a big ship and they weren't really interested. Not interested at all, I don't think."

47. As to Step 1 of Deledio there is material before the Tribunal pointing to the hypothesis that Mr Miller increased his alcohol consumption after the tank incident during operational service.

Step 2

48. There is a Sop, No. 5 of 1995, as to alcohol abuse or dependence.

Step 3

49. Mr Moore relied on risk factor 1(a) of SoP No. 5 of 1994. That factor is as follows:

(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

. . .

The term "stressful event" is defined as follows:

"stressful event" 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.

50. The hypothesis raised fits the template to be found in the SoP. Mr Miller described the tank incident to the VRB as resulting in psychological stress and as causing him subjective symptoms of increased stress such as fear of dark rooms, nightmares and a desire to drink more to deal with migraine or headache that started after the tank incident. There is also evidence that he told Mr Thornton that he drank to avoid thinking about the tank incident. Thus a reasonable hypothesis is raised.

Step 4

51. The task remaining for the Tribunal is to decide whether it is satisfied beyond reasonable doubt that Mr Miller's incapacity resulting from alcohol abuse or dependence did not arise from a war-caused disease. It is only at this stage that questions of proof arise.

52. The respondent contended in paragraph 4.11 of the respondents Statement of Facts and Contentions:

* the veteran did not experience a stressful event on operational service prior to the clinical onset of psychoactive substance abuse or dependence;

53. The matter does indeed give rise to considerable doubt as to whether the tank incident occurred. Mr Moore conceded that if Mr Miller had not had operational service, and a balance of probabilities standard of proof applied, his client would have faced substantial difficulty in this matter. That is because the report of Captain Josephs establishes that it is very unlikely that the incident involving the tank ever occurred.

54. Captain Joseph's report raises very significant doubts about whether the incident occurred. Firstly, it was not reported. Secondly he reported that the Engineer Officer, the Chief Petty Officer and the Acting Chief Petty Officer all of whom should have known of the incident, told him they had no recollection of any incident of that nature. He reported that they thought they would have remembered if it had occurred. They did not themselves give evidence. There are also issues as to whether painting of a tank would have been done at sea or in port, although Captain Joseph reported that Commodore Jones had told him there was no reason why tank maintenance could not have been undertaken at sea.

55. We agree with Captain Josephs' conclusion that it would be surprising if the extraction of semi-conscious men from a water tank had gone unnoticed; but can we be satisfied "beyond reasonable doubt" that the incident did not occur?

56. We cannot overlook the fact that Lieutenant Commander Jones did acknowledge that there was a slight possibility that the event could have been dealt with by the CPO and not referred to him. Although ex CPO Lively and ex PO Herron told Captain Josephs that they could not recall the incident, they did not give evidence to the Tribunal. We do have evidence from Mr Hughes and Mr Daniel that they did recall it. Mr Daniel denied that he had made up the story, as something Mr Miller could use to support his claim.

57. The doubts arising from Captain Josephs' report are somewhat substantiated by the fact that Mr Miller did not, so far as the evidence reveals, mention the tank incident to any doctor, or refer to it in connection with his claim until after receiving the letter from Mr Daniel of 14 August 1998 (T28 p91), which suggested that Mr Miller rely on that incident.

58. Further, when Mr Hughes and Mr Daniel gave their evidence, which unfortunately was over the telephone, because Mr Hughes lives in Ararat and Mr Daniel lives in Queensland, while they confirmed that they learnt of the incident probably on the day it happened, they had very little to add to their statements and letters. Mr Hughes said he had not seen the other men involved in the incident, and said he had not even seen Mr Miller showing signs of dizziness or respiration problems. He was sure the incident occurred while HMAS Quiberon was in port probably in Singapore; Mr Miller had reported that it happened at sea.

59. As to the meaning of the standard of "satisfaction beyond reasonable doubt", the Full Court in Deledio approved a passage in the reasons of Heerey J at first instance (Deledio v Repatriation Commission (1997) 47 ALD 261 at p275); Heerey J said:

"if the hypothesis is reasonable the claim will succeed unless:

(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact."

60. Heerey J, in that paragraph went on the explain;

"For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level".

61. Applying that test, the respondent in this matter must disprove the fact of Mr Miller having experienced a stressful event when painting the freshwater tank, beyond reasonable doubt.

62. We have grave reservations on that issue, but in view of the evidence of Mr Hughes and Mr Daniel we cannot be satisfied beyond reasonable doubt that the event did not occur. To make that finding would require that we find that the evidence of Mr Hughes and Mr Daniel was not truthful. That is a difficult finding to make. It is especially difficult when Mr Miller is dead, and Mr Hughes and Mr Daniel gave telephone evidence, and the people to whom Captain Josephs spoke did not give evidence at all. We cannot be satisfied beyond reasonable doubt that the tank incident did not occur. Nor can we be satisfied that it was not a stressful incident. Mr Miller told Mr Thornton and Mr Coates and Dr Cooper and the VRB that it did result in psychological stress and give rise to subjective symptoms of increased stress.

63. Once we have reached that conclusion, any doubts as to the reasonableness of that part of the hypothesis must be put aside. The Full Court in Repatriation Commission v Webb (1998) 51 ALD 575 explained at p.582-3:

".... Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case, each sequence in the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable. The tribunal did not do this."

64. The SoP does not expressly require any more than a temporal connection between the prior experiences of the stressful event which must be related to service, as provided in clause 2, and the clinical onset of alcohol dependence and the maintenance of that dependence post service. All those matters are raised by the evidence. However s 9(1)(b) of the Act does require that the disease must result from "the occurrence" or "be attributable to" the service.

65. There is evidence that at times Mr Miller attributed his heavy drinking habit and alcohol dependence to the tank incident, but there were other times when he did not make that connection. He told Mr Thornton and the VRB (trans p.21) that he increased his drinking after the incident to avoid thinking about it, and to deal with migraines or headaches which developed afterwards. His friends, Mr Hughes and Mr Daniel, said that he and they drank heavily both before and after the incident. They did not notice any change in Mr Millers drinking habits after this incident. But we can not be satisfied beyond reasonable doubt that Mr Miller's friends would know more about his drinking pattern, and about the reasons why he drank, than he did himself.

66. Mr Miller told Dr Cooper that he began drinking alcohol to excess during the time after the tank accident when he was having nightmares. He said he drank to excess in Malaya due to the effects of the stress he was under and the oppressive heat. Dr Cooper wrote that Mr Miller's alcohol dependence disorder dated back to his Naval Service, particularly around the time he served in HMAS Quiberon in the FESR. He wrote that if Mr Miller's account of the incident was accurate, it was a stressful event and caused him to have nightmares and other symptoms of anxiety. He added:

".... It is plausible that there are other factors as well as this incident that contributed to the onset of his excessive drinking including climatic conditions, peer group culture, and health problems like headache. It is my understanding that the Statement of Principle doesn't require there to be a single cause or linking factor."

67. Mr Miller in his drinking questionnaire (T-docs p.21) did refer to an increase in alcohol consumption in 1958-60 while on overseas service, but he did not link the increase with any specific incident of his overseas service.

68. In the telephone conversation recorded at T-docs p.19, Mr Miller seems to have explained the factors that led to his drinking as follows:

"DRINKING, COMMENCED. 1958. PEER PRESSURE, STRESS OF JOB STOKER ENGINE ROOM, BEER SUPPLIED ONBOARD ? lge CANS PER DAY, READILY AVAILABLE AND VERY CHEAP. HOMESICK DRANK TO FORGET."

69. Dr Cooper was asked why Mr Miller might not, in May and June 1997, have attributed his increased drinking to the tank incident in 1997. He explained at transcript p57-58:

"It is clinically fairly common for veterans generally not in the very early stages of their presentation, not to make clear connections between various things that have happened and behaviours that they exhibit. Veterans can present unequivocally unwell with psychiatric problems and deny having those problems and be only coerced into a treatment situation because of the effect that those problems have on others around them, and it is only when they are treated, given information, given ways of understanding their difficulties that cause and effect type connections can be made. So because the veteran doesn't volunteer the clear (a) leads to (b), it doesn't mean that that doesn't occur. It might mean it doesn't occur but it doesn't necessarily mean that because the nature of many of these men is such that they minimise and deny their problems for long periods of time until more serious difficulties or complications arise. Whether that is the explanation for this or not I can't say with precision but I don't think it follows because he didn't make those connections in earlier contexts that those connections don't exist. They may not but I can't say that with any degree of certainty either way."

70. Mr Miller's evidence to the VRB and his statements to Mr Thornton and Dr Cooper raise the factor of his drinking to excess starting after and as a result of the tank incident. The decision of the Full Court of the Federal Court in Lees v Repatriation Commission [2002] FCA FC 398 confirms that evidence of a doctor of facts recounted to him or her by a veteran is material which "might be viewed as probative of when [symptoms] were first manifest". We cannot be satisfied beyond reasonable doubt that Mr Miller's drinking to excess was not attributable to that incident.

71. We find that alcohol dependence was a war-caused disease.

DEPRESSIVE DISORDER

Step 1

72. The hypothesis relied on was based on Dr Cooper's evidence. He wrote:

"..... I feel the likely cause of his depression is multi-factorial and includes the effects of his alcohol consumption, chronic anxiety, and general social decline.

.....

With respect to Mr Miller's depression it is virtually impossible to identify the exact onset but it is my impression that it is a more recent problem that certainly post dates both his alcohol dependence and anxiety. In that case the relevant factor for depressive disorder would be 5C having a clinically significant psychiatric condition (alcohol dependence and anxiety) within 2 years immediately before the clinical onset of depressive disorder. This would be the case given that his alcohol dependence and anxiety have been chronic conditions dating to naval service."

Step 2

73. There is a SoP for depressive disorder, it is No. 65 of 1996 as amended by No. 181 of 1996.

Step 3

74. The factors relied on by Mr Moore were factors (b) and (c). They provide as follows:

"(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder; ....

SoP 181 of 96 defines "severe psychosocial stressor" to mean:

"an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;"

75. The hypothesis advanced by Dr Cooper is reasonable as satisfying factor (c). It is his opinion that Mr Miller's depressive disorder was secondary to alcohol dependence and anxiety. Thus as we have found that the alcohol dependence was war-caused, we also find that the depressive disorder was also war-caused.

CLAUSTROPHOBIA

76. Dr Cooper said in his evidence that Mr Miller's anxiety disorder was best described as a specific phobia, namely claustrophobia or a substance induced anxiety disorder. He agreed with Mr Purcell that if, after the tank incident, Mr Miller comfortably worked in confined spaces that would contradict the diagnosis of claustrophobia. Mr Purcell suggested that the Tribunal could make that finding on the basis that Mr Miller did subsequently serve in ships which Mr Purcell identified as small ships. There was no evidence as to whether those ships would be more or less likely to give rise to a feeling of being confined than a large ship, where a sailor could be stationed many levels below the water line. We accept Dr Cooper's diagnosis of claustrophobia.

77. Dr Cooper said that the SoP for generalised anxiety disorder, No. 48 of 1994, did not cover claustrophobia, as it did not meet the description in clause 4 of the SoP. There is no SoP specifically dealing with claustrophobia. Thus the question whether the material before the Tribunal raises a reasonable hypothesis linking claustrophobia with the circumstances of Mr Miller's service is to be determined in accordance with the test in East v Repatriation Commission (1987) 74 ALR 518 as approved in Bushell v Repatriation Commission (1992) 109 ALR 30 at p35.

78. In East v Repatriation Commission the Full Court said at p. 533-534:

"....The meaning of the phrase "reasonable hypothesis" was felicitously explained by a Veterans' Review Board in Stacey (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:

"A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary.

....

"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable, even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."

We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities".

79. Mr Miller gave Dr Cooper a history of nightmares pertaining to the water tank and of an inability to tolerate confined spaces since the tank incident. That material raises a reasonable hypothesis connecting claustrophobia with the circumstances of Mr Miller's service.

80. We can not be satisfied beyond reasonable doubt that the tank incident did not occur. It provides the basis for a reasonable hypothesis linking Mr Miller's claustrophobia with the circumstances of his service.

CONCLUSION

81. The decision under review will be set aside. In substitution the Tribunal will find that the conditions of alcohol dependence, depressive disorder and claustrophobia were war caused diseases with effect from 2 March 1997.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer Senior Member, Mr C. Ermert, Member and Miss E.A. Shanahan, Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 21 June 2002

Date of Decision 18 December 2002

Counsel for the Applicant Mr G Moore

Solicitor for the Applicant Peter Liefman

Counsel for the Respondent Mr G Purcell

Solicitor for the Respondent Department of Veterans' Affairs