Letherbarrow and Repatriation Commission and Comcare [2002] AATA 46 (29 January 2002)

Last Updated: 30 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos N1998/1803

VETERANS' APPEALS DIVISION ) N2000/1744

Re PATRICIA ANNE LETHERBARROW Applicant

And REPATRIATION COMMISSION And COMCARE (Department of Defence)

Respondents

DECISION

Tribunal Senior Member M D Allen Rear Admiral A Horton AO, Member Dr P Lynch, Member

Date 29 January 2002

Place Sydney

Decision The decisions of the Tribunal are: (1) in matter N1998/1803 - the decision of the Repatriation Commission dated 16 December 1997 rejecting the claim to have the death of Barry Letherbarrow, deceased, attributed to service is AFFIRMED; (2) in matter N2000/1744 - the decision by the delegate of Comcare on 24 November 1999 that the death of Barry Letherbarrow, deceased, did not arise out of his employment with the Department of Defence is SET ASIDE and the Tribunal substitutes its determination namely, that the death of the said Barry Letherbarrow is compensible pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 and that the Respondent is to pay the Applicant's costs.

(Sgd) M.D. ALLEN ................................. Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Death by suicide. Requirement for sub-hypothesis to meet relevant SoPs. Whether PTSD caused or aggravated by operational service. Objective standard of stressful event. Failure to adequately treat not relevant when a failure to seek treatment.

WORKERS' COMPENSATION - Death by suicide. Whether caused or contributed to by events whilst in the RAN. Deceased crewmember of HMAS Melbourne at time of collisions between Melbourne and HMAS Voyager and USS Evans. Cumulative effects of stressful events.

Veterans' Entitlement Act ss 120(1), (3), (4) and (6), s120A, s120B

Safety, Rehabilitation and Compensation Act 1988 - s4, s14

O'Neil v Repatriation Commission [2001] FCA 1492

Budworth v Repatriation Commission (2001) 63 ALD 422

Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80

McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144

Repatriation v Gorton [2001] FCA 1134

REASONS FOR DECISION

Senior Member M D Allen Rear Admiral A Horton AO, Member Dr P Lynch, Member

1. On 15 December 1998 the Applicant lodged with the Tribunal an application to review the decision of a delegate of the Repatriation Commission on 16 December 1997 as affirmed by a Veterans' Review Board on 27 October 1998 rejecting her claim to have the death of her late husband, Barry Letherbarrow, attributed to his war service.

2. A further application was lodged by the Applicant with the Tribunal on 16 November 2000 seeking review of a "reviewable decision" made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 on 17 October 2000, affirming a prior determination that rejected a claim that the death of the Applicant's husband was as a result of an injury that arose out of or in the course of his employment.

3. Both claims arose as a result of the suicide of the deceased on or about the 20 December 1992. The claim by the Applicant was that the death of the deceased occurred while the balance of his mind was disturbed by the following diseases:

chronic post-traumatic stress disorder;

alcohol and other substance abuse and dependence;

a major depressive disorder

and that the said diseases had been caused, materially contributed to or aggravated by his employment with the Department of Defence and operational service in the Royal Australian Navy whilst so employed.

4. As both matters before the Tribunal encompassed the same medical investigations and had a common factual basis it was agreed between the parties and the Tribunal that both matters should be heard together notwithstanding different standards of proof.

5. The claim against the Repatriation Commission arose out of a short period of operational service as that term is defined in section 6C of the Veteran's Entitlement Act 1986 ("VEA"). The deceased as a crewmember of HMAS Melbourne was in Vietnamese waters for the period 2000hrs 7 June 1965 to 0800hrs 8 June 1965. In addition the deceased had eligible defence service as defined in section 69 of the VEA from 7 December 1972 to 31 January 1983.

6. So far as relates to the deceased's period of operational service the standard of proof is that prescribed by subsections 120 (1) and (3) of the VEA. Those subsections provide that the death of the deceased was war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied, if, after consideration of the whole of the material before it, that material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the particular service rendered by him. Subsection 120A(3) VEA then goes on to provide that a hypothesis will not be reasonable unless it conforms with a so-called Statement of Principles (SoP) determined by the Repatriation Medical Authority.

7. For the period of the deceased's eligible defence service the standard of proof is that prescribed by subsection 120 (4) of the VEA namely to the Tribunals' "reasonable satisfaction". As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 the term "reasonable satisfaction" equates to the civil standard of proof, namely that of on the balance of probabilities. However, section 120B of the VEA mandates the Tribunal cannot be reasonably satisfied unless there is in force a so-called SoP that uphold the contention that the death of the veteran is, on the balance of probabilities, connected with that service.

8. In regard to all claims, whether concerning operational service or eligible defence service, subsection 120(6) of the VEA provides that no onus of proof lies upon either party to this review.

9. So far as relates to the Applicant's claim against the Department of Defence pursuant to the Safety Rehabilitation and Compensation Act 1988 ("SRC Act"), the standard of proof is the civil standard. Some debate may exist as to whether there exists in regard to such claim an onus of proof, see Casarotto v Australian Postal Commission [1989] FCA 116; 86 ALR 399 at 412. Suffice it to say that in order to maintain her claim the Applicant had as a matter of practical reality to put some evidence in support of her claim before the Tribunal, and that the Tribunal must feel confident in acting upon the evidence.

10. Whereas the Applicant gave evidence before the Tribunal it is doing no disservice to her to say that her evidence was vague and lacking in particularity. For example, although she stated on more than one occasion that her husband's mental state got worse after each bad experience in the Navy, when pressed she was unable to be more particular but stated "you just know these things".

11. That said the Applicant was in a particularly good position to make an assessment of the deceased. She told psychiatrist Dr McMurdo, that she had known the deceased from the age of eight years. Other evidence is that the Applicant and the deceased continued in each other's company until he joined the Navy and then married.

12. The deceased joined the Navy on 13 January 1963 aged 17 years. After recruit and trade training he was posted to HMAS Melbourne as a steward on 7 January 1964. He was aboard that vessel when on the night of 10 February 1964 it collided with HMAS Voyager off Jervis Bay with subsequent loss of life of 82 members of the Voyager's crew.

13. In her evidence the Applicant stated that the deceased was, prior to the collision between the Melbourne and the Voyager, a very easygoing sociable person but after that event she noted changes in his personality.

14. The Applicant also stated that the deceased exhibited anger regarding the events surrounding the collision. In particular he felt that the wrong person had been blamed for the collision. He also referred to hostility exhibited towards crew members of HMAS Melbourne after the collision. The Applicant also stated to Dr Dent, psychiatrist (see T21), that the deceased was "pulling up" bodies out of the water with a thing like a large fishing line, and at that time was "pulled up" by an officer for not having his shirt tucked in when he was pulling in the bodies. The Applicant's statement as to the deceased's reactions after the Voyager collision are corroborated by the evidence of the Plaintiff in Ackland v The Commonwealth [2001] NSWSC 991 who was also aboard HMAS Melbourne at the time it collided with HMAS Voyager.

15. It is of course impossible to know what the deceased's duties were at the time of the Voyager collision, and the Applicant over the period of time that has lapsed may have confused what the deceased told her with other information she has obtained from other sources, for example the deceased talking to other sailors, radio or newspaper reports. We accept however her evidence that she noticed a change in the deceased after the Voyager incident and as the deceased was at that time only 18 years of age (DOB 27. 12. 45) it would be remarkable if he were not affected in some way.

16. Exhibit A5 is a statement by Mr Otto Britz who served aboard HMAS Melbourne and in the Naval Police with the deceased. Although we have reservations over some of Mr Britz's evidence and he was not provided for cross-examination, he did state:

"In addition to what I have earlier stated about Barry recalling whilst we were closed up the disturbing memories of the Voyager accident, we would talk about recovering the Voyager crewmen who had cut flesh and were covered with oil and other filth."

This passage indicates the probability that the deceased was actively involved in recovering survivors from HMAS Voyager or in helping to care for them. All of which would have made an impression upon on 18 year old who was undertaking his first seagoing posting.

17. Although the Applicant stated that it was after the Voyager incident that the deceased commenced to drink alcohol, she was unable to observe him throughout his naval service and to our mind it is just as likely that the deceased commenced to drink alcohol once he was permitted to do so by the Navy upon reaching 18 years of age (see Exhibit R3). That the Applicant's recollections are unclear is evidenced by her answer in cross-examination that the deceased did not smoke before he entered the Navy contrasted to a smoking history taken from the deceased by a medical practitioner employed by the Department of Veterans' Affairs on 12 August 1988 where the deceased states he started smoking at age 17 before enlistment (see T4 page 50 in N1998/1803).

18. The deceased's operational service occurred when HMAS Melbourne was diverted from returning to Australia via Subic Bay to provide an escort to the troop carrier HMAS Sydney, whilst that vessel was on passage to the port of Vung Tau in South Vietnam. Although no doubt there was some resentment amongst the crew of HMAS Melbourne at not returning directly home as they had been led to believe after the series of exercises in which the vessel had participated, we do not think that anything material arises out of the circumstances in which HMAS Melbourne was diverted to escort duties.

19. In Exhibit R3 Captain Josephs states at paragraphs 9 and 10:

"9. Her Report of Proceedings for June, 1965 records that she assumed Defence Stations at 0001H on Friday 4 June and remained in that state for four days. The ROP noted that: 'The ship remained at Defence Stations during the passage. Long periods of inactivity gave sailors a real appreciation of the monotony of escort duties. No incidents occurred.

10. Hatches would not have been closed during the period MELBOURNE was at Defence Stations. There is no indication that she went to Action Stations at any stage."

20. In addition as pointed out in Exhibit R4, the closest HMAS Melbourne came to the coast of South Vietnam was 50 miles and the coast would not have visible, especially as the time of closest contact was 0200H (2:00 am local time).

21. Mr Britz states in Exhibit A5 that:

"........ we were closed up for action stations ... there were occasions the ship's guns were firing. We would also hear other loud noises, not knowing where they came from."

We are satisfied that none of that occurrences occurred whilst HMAS Melbourne was escorting HMAS Sydney to South Vietnam. In particular, hatches were not closed during that period, see Exhibit R3 above.

22. Paragraph 4 of Exhibit A5 has Mr Britz stating:

"Thunder flashes were used when we were at anchor."

As Exhibits R3, R4 and R5 made clear, at no time whilst in Vietnamese waters was HMAS Melbourne at anchor. The Tribunal is aware that vessels anchored in Vung Tau harbour used scare charges, usually one pound blocks of TNT to guard against divers attaching explosive ordnance to the hulls of ships in harbour. At no time did HMAS Melbourne enter Vung Tau or any other South Vietnamese harbour. We can only conclude that in paragraph 4 of exhibit A5, Mr Britz is seeking to advance the Applicant's case by referring to material he knows to be untrue. This of course casts doubts on other parts of his statements, particularly as he was not called to give evidence.

23. Following his return from the trip into South Vietnamese waters the deceased's naval career appears to have progressed. Although the Applicant says the trip to Vietnam affected the deceased, there is no evidence to support this allegation.

24. An event, which must have had an effect upon the Applicant, occurred on the night of 3 June 1969 when HMAS Melbourne collided with the US navy destroyer Frank E Evans in identical circumstances to the collision with HMAS Voyager.

25. Unfortunately no details are available as to whether the deceased was on duty at this time or whether he was off watch and asleep. Either way the events must have been traumatic as the first he would have known of events was the call to stand to for collision stations. In appreciating the effect upon the deceased it must be remembered that he had also been aboard HMAS Melbourne when it collided with HMAS Voyager.

26. In construing this event paragraphs 11 and 12 of Captain Josephs of 29 August 2001 (Exhibit R3) are material, they state:

"11. The crew of HMAS Melbourne were not routinely provided with psychological counselling following the two collisions. In the 1960s general counselling of groups and individuals, as practiced today, was virtually non-existent in the RAN and indeed, in society in general. The value of post-trauma counselling was, as yet, seemingly unrecognised. The RAN relied upon it's long-standing Division System, whereby Divisional Officers, assisted by Division Chief and Petty Officers were responsible for not only work supervision, but also for the general welfare of the sailors in their Divisions. This provided an avenue for individuals with work or personal difficulties to be counselled and assisted. MELBOURNE's two Chaplains would also have had an important role in the general counselling and support of crewmembers.

12. Surgeon Rear Admiral Brian TRELOAR RAN Rtd has advised that it was not part of RAN medical practice at those times routinely to provide counselling or psychiatric treatment whether or not such treatment was requested by the sailor. Medical Officers could, however, be expected to take appropriate action if they were to recognise such a necessity in their examination of any individual patient."

27. The Applicant's evidence was that the deceased contacted her as soon as he could after the events concerning the USS Evans and reiterated that "on return he went down a bit further" and in cross-examination stated "after every bad experience in the Navy his drinking seemed to get worse".

28. The deceased continued to serve in the navy until 31 January 1983 at which time he had completed 20 years service. Although not in evidence before us, the Tribunal knows that the expiry of 20 years service is a common benchmark for retirement from the armed forces, as after 20 years members become entitled to a pension pursuant to the Defence Force Retirement and Death Benefits Act 1973.

29. There is nothing in the deceased service documents to indicate that at any time his use of alcohol brought him into conflict with service authorities. His promotions were regular, there are no disciplinary offences recorded and at the time he sought to transfer to the Naval Police his conduct was described as good. That is not saying however, that he may not have been drinking alcohol at a level dangerous to his health. Heavy drinking would not normally lead to action by service authorities unless efficiency or discipline was impaired.

30. The Applicant gave evidence that the deceased had "lost his good conduct badges" as a result of a civil conviction for driving whilst having a blood alcohol level above the prescribed reading. This conviction is noted in the deceased service records (page 172 in T52). Although by itself such an offence would not necessarily indicate a problem with alcohol as opposed to bad judgement in the light of the deceased subsequent two convictions for high range blood alcohol readings whilst driving and subsequent history of heavy alcohol intake, this first alcohol driving offence can be seen as an indicator that the deceased was drinking at an excessive level.

31. As mentioned above the deceased transferred to the Naval Police. At the time he was a Petty Officer Steward and a letter from his commanding officer dated 15 February 1979 refers to the deceased "now understands that a posting to HMAS CERBERUS will be inevitable and sees this transfer as the best alternative for himself and his family".

32. The Applicant stated that the deceased did not want to be transferred to HMAS Cerberus, which is a naval base situated south of Melbourne. Although the Applicant referred to the deceased not wishing to be posted back aboard HMAS Melbourne, the documents make it clear that he transferred to the Naval Police in order to avoid a transfer to HMAS Cerberus in Victoria south of the city of Melbourne.

33. Mr Britz in his statement refers to the deceased drinking heavily whilst employed as a Naval Policeman. Because of matters referred to previously regarding Mr Britz evidence we are not inclined to put much weight upon his recollection of the deceased's drinking at this time. The Applicant however stated that the deceased was drinking excessively whilst in the Naval Police.

34. After the completion of his 20 years service in the Royal Australian Navy the deceased obtained a position at the Naval Armament Depot Newington. His employment at that facility was originally on probation and he completed that period successfully.

35. At the time of his commencing employment at the Armament Depot the deceased was examined by a Commonwealth Medical Officer. As a result of that examination an abnormality was detected in the deceased's gamma GT levels. Further investigations by Dr George Hall, consultant physician, implicated alcohol consumption as the reason for the raised gamma GT levels. The result of these investigations was that the Commissioner of Superannuation issued a benefit classification certificate pursuant to subsection 16 (4) of the Superannuation Act 1976 (Cwth). That certificate nominated "history of excessive alcohol consumption" as a reason the deceased would not be likely to continue in employment until his maximum retirement age.

36. The report of Dr Hall (supplementary T-documents T40) and the Benefit Classification Certificate (see T10 in N1998/1803) corroborated the Applicant's evidence that the deceased had been a heavy drinker for some years.

37. On 26 May 1984 and again on 5 October 1989 the deceased was convicted of driving with an excess of alcohol in his blood. The second conviction was for a high range concentration, namely .210 grams of alcohol per 100 millilitres of blood. These convictions, particularly the latter, show that the deceased was at a stage where his consumption of alcohol was such that he could be labelled a problem drinker.

38. The Applicant stated that the Applicant attended Alcoholics Anonymous in about 1975 or 1976. Her evidence on this point was challenged but we accept her evidence that during the 1970s and 1980s the deceased's drinking had become a problem and that there were arguments between them regarding his drinking.

39. A very pertinent fact in the Applicant's evidence was that the deceased did not sleep well, he would "jump in his sleep" and "thrash about". He would also shout out in his sleep. The Applicant told Dr Dent that the deceased would call out "no no" in his sleep as if he were frightened and he would be sweating and act as if he had had a nightmare.

40. Initially the reports respecting the deceased as an employee of the Armament Depot were good. On 22 April 1985 he was recommended for permanent employment. He later received a promotion and his diligence and efficiency received favourable reports.

41. On 1^st September 1992 the deceased was involved in an incident at his employment where he appeared obviously affected by alcohol whilst "visiting dignitaries" were present. The affects of this were serious in that he was removed from his position and placed in an office where he was subject to supervision. Apart from being "counselled" as to his indiscretion on 21 September 1992 a minute was written to the Regional Secretary, Department of Defence which stated inter alia:

"The referenced (sic) covered a number of reports of counselling regarding Mr Letherbarrow and requested that an urgent medical appointment be arranged for Mr Letherbarrow with the Commonwealth Medical Officer to determine his fitness for continued duty." (Tribunal's emphasis)

42. The deceased could hardly have been under any illusion as to the seriousness of the action taken against him by management. We note that he did not tell his wife of these events except to say he had been moved to "top office". The deceased then committed suicide prior to the day he was to see the Commonwealth Medical Officer.

43. Evidence of deterioration in the deceased's psychiatric state prior to his death exists. After a good work record in the 12 months before his death the deceased was increasingly availing himself of sick leave. The Applicant gave evidence that the deceased was not only drinking heavily but for several years had also been using tranquillisers. Dr Lewin has reviewed the notes of the deceased's general practitioner and states in Exhibit R7:

"I also reviewed Dr Fong's medical records. His handwritten clinical notes cover the period between 1987 and 1992 in the weeks before Mr Letherbarrow's death. The earliest series of entries refer to an anxiety state, to headaches and to the patient's recurrent use of Mogadon. Reference was made to a sleeping problem and later to tension headache."

44. The Applicant's evidence was that the deceased was drinking alcohol and taking a variety of pills. He even used to take endone, which had been prescribed for her father who had cancer. She described the deceased as being out of control taking pills and drinking.

45. There are reports from four psychiatrists before the Tribunal and all suffer from the fact they are written after the death of the deceased. As acknowledged by Dr Klug it is very difficult to make a diagnosis relevant to the late Mr Leatherbarrow without ever having had any contact with him.

46. The first psychiatric opinion obtained is that of Dr Dent dated 11 December 1997 and is directed to Dr Reddy of Penrith. This opinion has been criticised as having been obtained by "leading" the Applicant. In addition care must be taken with this opinion as Dr Dent has been criticised in other forums for lack of objectivity in his reports.

47. Notwithstanding these caveats Dr Dent's report contains a relevant and cogent history, in particular the deceased's adverse reaction to the death of his father-in-law to whom he had been close six months prior of his suicide and the threat of losing his job. Dr Dent also records the Applicant as stating the Applicant's son had accompanied his father to an Alcoholics Anonymous meeting, which detail which would hardly be made up by the Applicant. We find that Dr Dent's opinion that the deceased had a post-traumatic stress disorder (PTSD) together with dysthymia, major depression and chronic substance abuse, agrees with the opinion of Dr Klug and can be compared to the opinions of Dr McMurdo who found the deceased to be suffering from drug and alcohol dependence at the time of his death and Dr Lewin who opined that the deceased suffered from polysubstance abuse and had problems with anxiety and depression.

48. Dr Lewin was of the opinion that the Applicant's polysubstance abuse, anxiety and depression could not be said to have been caused or contributed to by either his naval service or his employment with the Department of Defence. More particularly he states that there was no evidence of a significant stressor at the time of his Military service or of ongoing psychiatric problems in the period that follows.

49. In his final report, namely that of 19 October 2001 (Exhibit R9) Dr Lewin again refers to the lack of evidence of psychiatric disturbance during the deceased's working life. He states at page 4 of his report:

"A documented period of more than eight or nine years of satisfactory work performance without any evidence of emotional difficulty in the workplace is a notable observation. This would not be consistent with the hypothesis that there was any long-term psychiatric disturbance. The reports that Mr Letherbarrow was able to co-operate with others, that he performed well under pressure and that he was generally co-operative and diligent are not consistent with the diagnosis of a Chronic Psychiatric Illness such as a Chronic Post Traumatic Stress Disorder."

50. Questioned by Tribunal member Dr Lynch, Dr Lewin conceded that there could be what he described as "an entity" whereby there was a latent period before a psychiatric illness not dissimilar to PTSD developed. As we understand Dr Lewin this condition is not a PTSD as that illness is defined in Volume IV of the Diagnostic and Statistical Manual but a separate and distinct condition or "entity". Dr Lewin's opinion on this matter is worthy of respect but in the interim as the entity has not had a name or diagnostic criteria ascribed to it then the best any deliberative body can do is to accept as does DSM IV that symptoms of a PTSD may occur "even years" after the traumatic event.

51. Generally however, the Tribunal did not find the evidence of Dr Lewin of particular assistance. In particular the Tribunal found that he had little or no appreciation of the effect of being involved in two collisions involving HMAS Melbourne in which considerable loss of life occurred and the impact of the recovery of survivors would have had upon a young man as the deceased then was. Where the opinions of Dr Lewin conflict with that of Dr Klug we prefer the opinions of Dr Klug.

52. Dr McMurdo acknowledges that the clinical notes of the deceased's general practitioner Dr Fong confirmed that the deceased sought treatment for anxiety symptoms. In addition he notes Dr Fong as reporting:

"From the history given to me by the patient, he (Barry Letherbarrow) suffered from severe anxiety, nervous disorders, depression and agitation as a result of his service in Vietnam. He also acquired heavy alcohol drinking at times, but he was very determined to struggle on. He required constant consultation with me and he was at times on sedatives and/or tranquillisers...He [sic] life up to the time of his death was in general quite miserable..."

53. Although Dr McMurdo obtained a history from the Applicant it would appear he did not fully appreciate the effect of the two naval collisions ie that of HMAS Melbourne with HMAS Voyager and USS Frank E Evans. Significantly Dr McMurdo states:

"It is possible that he did have the symptoms and did suffer a stressor but there is not sufficient absolute documentation to support this."

Unfortunately Dr McMurdo was not called so the full facts and circumstances of the collisions involving HMAS Melbourne and the deceased's part in the subsequent rescues could not be put to him. From his report it seems he has rejected PTSD on the basis of lack of supporting documentary evidence.

54. At page 3 of his report Dr McMurdo states:

"There seems little doubt that he suffered from psychoactive substance abuse and alcohol dependence. The question is whether this is related to the eligible periods of service or not, and of course this is exceedingly difficult to prove absolutely at this point in time. There is certainly a tenuous connection, although I do not think that he suffered from PTSD despite Dr Dent's report. It is well known that anxious individuals abuse drugs and alcohol, but he may have resorted to alcohol because of its ready availability in that he worked as a steward, and supplemented this with prescribed sedatives. The treatment for anxiety and depression in later life was almost certainly the result of his drug and alcohol abuse, rather than the cause thereof."

However Dr McMurdo goes on to comment:

"3. It is possible that this drug and alcohol problem was related to his eligible period of service in that he describes having been afraid when entering Vietnamese waters..."

Although not sufficient to satisfy the Tribunal on the balance of probabilities, the above statement is sufficient material to raise a hypothesis for the purpose of subsection120 (3) of the VEA.

55. Dr Klug after taking a detailed history from the Applicant is of the opinion that the deceased suffered from a PTSD, which in turn led to other alcohol and other substance abuse and dependence, which in turn led to a probable major depressive disorder. In addition Dr Klug pointed out that there is a very high correlation between suicide and psychiatric disorder.

56. We accept Dr Klug's opinion in Exhibit A10 that the history of the Applicant is of particular use as she had known her husband from about the age of 8 and they had been a couple since the age of 15 or 16. He noted that the Applicant stated that the deceased underwent a significant change in his general functioning and mood from the time of the Voyager collision.

57. The ability of the Applicant to appreciate the changes in the deceased's mood and more particularly his alcohol consumption was questioned in cross-examination. It is true that the deceased and the Applicant did not start to live together until the deceased was posted to HMAS Creswell in 1966, well after the significant events of the Voyager and USS Evans collisions and the trip to South Vietnamese waters. Notwithstanding this we accept that the Applicant did have a long period of time in which to access the deceased's mood and personality.

58. Dr Klug also points to a factor, which has reasonance with the members of this Tribunal and the numerous other cases that have been before its members namely that of the tendency of Veterans with anxiety disorders to self medicate with alcohol. As Dr Klug pointed out, members of the services are at particular risk at developing PTSD and the history of the deceased is compatible with the history he sees in many combat veterans.

59. The Tribunal finds that Dr Klug's opinions, that even if the deceased had a subclinical PTSD at the time of the trip to South Vietnamese waters as a result of the Voyager collision, that the collision with the USS Evans would have served as an intense reminder of what happened with the Voyager is one that is logical and accords with fact.

60. Dr McMurdo in his report does not agree that the deceased suffered from a PTSD yet concedes that anxious individuals do resort to drugs and alcohol.

61. Having considered all of the material before us, the Tribunal finds that the deceased did commit suicide because of the increase in pressure on him brought about by his indiscretion in the workplace. At the time it is clear from the evidence of the Applicant and the report of Dr Dent not only was the deceased's alcohol and drug abuse "out of control" but his psychiatric illnesses were exacerbated by the death of his father-in-law. These events may have been the operating cause of his suicide but it is clear on the evidence, and the Tribunal so find, that at the time of his death the deceased was depressed as a result of an alcohol and drug abuse, which was caused in turn by his PTSD. The PTSD existed from the time of the collision between the HMAS Melbourne and the USS Frank E Evans. At that time the deceased was particularly vulnerable to such an injury as he had a pre-conditioning as a result of the collision between HMAS Melbourne and HMAS Voyager. His vulnerability was increased by the fact that after neither collision were there any counselling or medical investigation undertaken by the Navy.

62. The above findings are enough to find that the death of the deceased arose out of or was contributed to by his employment with the Commonwealth. To put it bluntly the deceased committed suicide because he was suffering a series of psychiatric illnesses as a result of a PTSD caused by his employment with the Navy.

63. Different considerations apply when considering the deceased's operational service and eligible defence service for the purposes of the Applicant's claim against the Repatriation Commission. The consideration of the case against the Repatriation Commission has been complicated by the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194. This decision requires that the Tribunal consider not only the SoP in force at the time it makes its decision, but if that SoP is not more favourable to the Applicant, the SoP in force at the time the Respondent made its determination.

64. So far as defence service is concerned, that is to say the deceased's period of service in the Royal Australian Navy from 7 December 1972 to 31 January 1983, the only SoPs that could apply to that period of service are Instrument No 72 of 1996 as amended by Instrument no. 178 of 1996 re: suicide, then the following: - Instrument nos. 6 of 1994 re: psychoactive substance abuse or 77 of 1998 re: alcohol dependence or abuse, Instrument nos. 59 of 1998 re: depressive disorder or 66 of 1996 as amended by 102 of 1996 re: depressive disorder together with Instrument nos. 4 of 1999 as amended by 55 of 1999 re: post-traumatic stress disorder or 16 of 1994 as amended 236 of 1995 re: post-traumatic stress disorder.

The SoPs in addition to the SoP for suicide, namely 71 of 1996 as amended by 177 of 1996 are applicable because as was pointed out in McKenna v Repatriation Commission [1999] FCA 323; 86 FCR 144, if an hypothesis is supported by a sub-hypothesis or hypotheses then the subordinate hypotheses must themselves be supported by the relevant SoP where such an SoP exists.

65. We do not regard it necessary to set out the relevant SoPs in any detail. Suffice it to say the element of the various SoPs relied upon by the Applicant in respect of eligible defence service is that of the inability to obtain appropriate clinical management of the particular disorder the subject of the SoP.

66. In Brew v Repatriation Commission [1999] FCA 1246; 94 FCR 80 the majority of the Full Court of the Federal Court held that inability to obtain appropriate clinical management did not include a deliberate choice not to seek medical treatment.

67. In this matter there is no evidence that the deceased at any time sought treatment for either a PTSD or a problem with alcohol. No doubt to report to a medical officer with such complaints would not be calculated to advance one's career in the service. However, the fact remains that at no time did the deceased alert service medical authorities to the fact he was having problems.

68. Neither is there anything in the deceased's service documents which would indicate that he was in any way psychiatrically disturbed or abusing alcohol. There is no record of any service offences involving alcohol or which might indicate a disturbed personality. He advanced to the rank of petty officer and his transfer to the Naval Police was approved. At that time his conduct was described as good.

69. The Applicant did state that the deceased lost his good conduct badges due to alcohol but the only reference which the service documents disclose is the civil conviction for driving under the influence of alcohol in 1975. Such offences are regarded seriously by service authorities but no entry exists in the deceased's service documents of any administrative warning or other sanctions. It is quite clear that not all the deceased's service documents have been made available to the Tribunal but there exists no evidence that the deceased was regarded even at that time by service authorities to require further investigation as to his misuse of alcohol or any other psychiatric problem.

70. In the absence of any evidence of matters being raised by the deceased with service authorities. the Tribunal cannot find that there was an inability for him to obtain appropriate clinical management.

71. Both Instrument No 3 of 1999 as amended by No 54 of 1999, which is the SoP currently in force re: PTSD and Instrument No 15 of 1994 as amended by Instrument No 225 of 1995, which was in force at the time of the Repatriation Commission's determination relates to operational service and require the exposure of the veteran to a stressful event. The Tribunal do not regard the semantic differences in the latter instruments to have any real effect upon the nature of the event that took place. In Budworth and Repatriation Commission (2001) 63 ALD 422, Deputy President McMahon pointed out that the stressors required to cause a PTSD must have an objective existence. Although Budworth [supra] has gone on appeal, neither in the Federal Court or before the Full Court of the Federal Court was that particular ruling of Deputy President McMahon challenged.

72. There is no evidence whatsoever that at any time whilst in South Vietnamese waters did the deceased or any other crewmember of HMAS Melbourne objectively experience a stressful event.

73. Instrument No 76 of 1998 is entitled "Alcohol Dependence or Abuse". The factors to be met include:

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

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

(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) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

74. There is material in the report of Dr McMurdo to raise an hypothesis that the deceased's alcohol abuse was a result of his service in South Vietnamese waters. However, the SoP requires that the deceased suffered a "severe stressor", which is defined in the SoP in the following terms, namely:

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

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

75. We find as a fact that the deceased did not suffer a severe stressor whilst on operational service. Whereas he did suffer a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse, namely PTSD, that psychiatric disorder was not itself war-caused.

76. Instrument no. 5 of 1994 re: Psychoactive Substance Abuse or Dependence was in force at the time of the Respondent's decision. In that document the reference is to the veteran experiencing a "stressful event", which is defined as:

"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."

77. North J in O'Neil v Repatriation Commission [2001] FCA 1492 referred to the SoP for Generalised Anxiety State, which required a stressful event defined inter alia as "an occurrence which evokes feelings of anxiety or stress" and held that the veteran's subjective feelings were enough to meet the definition.

78. In the Tribunal's opinion, the definition in Instrument no. 5 of 1994 is more restrictive in that external stimuli (such as combat) are required. In the deceased's case there were no external stimuli analogous to combat. The ship was at alert yet not at action stations. The report of monthly proceedings for HMAS Melbourne indeed refers to the boredom experienced during the vessel's period of escorting HMAS Sydney. The Tribunal have no doubt that the deceased, along with many others of the ship's company was annoyed at not returning directly to Sydney after exercises as previously planned and that he felt apprehensive upon entering a war zone. However, as stated, there is no evidence whatsoever of any external stimuli resulting in psychological stress.

79. So far as any depressive disorder is concerned there is simply no material sufficient to raise a hypothesis that the deceased's operational service was causative of his depressive disorder. All the evidence points to any depressive disorder occurring towards the end of the deceased's life. Similarly there is no material which meets the factors in the relevant SoPs namely 58 of 1998 and 65 of 1996 as amended by 181 of 1996 to raise an hypothesis connecting any depressive disorder with the deceased's operational service.

80. The Tribunal has already discussed the failure to obtain appropriate clinical management for any disease in relation to the deceased's eligible defence service. Similar comments apply here and it is abundantly clear that at no stage did the deceased himself seek any form of treatment.

81. For the reasons outlined above the decision of the Tribunal is:

(1) in matter N1998/1803:- that the decision of the Repatriation Commission dated 16 December 1997 rejecting the claim to have the death of Barry Letherbarrow, deceased, attributed to service is AFFIRMED;

(2) in matter N2000/1744: - the decision by the delegate of Comcare on 24 November 1999 that the death of Barry Letherbarrow, deceased, did not arise out of his employment with the Department of Defence is SET ASIDE and the Tribunal substitutes its determination, namely that the death of the said Barry Letherbarrow is compensible pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 and that the Respondent is to pay the Applicant's costs.

82. The Tribunal would add for the benefit of the taxing officer that it does not believe the joining with the compensation proceedings of the matter in which the Repatriation Commission was the Respondent in any way extended the length of the proceedings or resulted in the calling of witnesses who would not otherwise have been called.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Rear Admiral A Horton AO, Member

Dr P Lynch, Member

Signed: (Kwai-Ling Wong) .....................................................................................

Associate

Date/s of Hearing 3 and 4 December 2001

Date of Decision 29 January 2002

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant R L Whyburn and Associates

Counsel for Repatriation

Commission Miss R M Henderson

Solicitor for Repatriation

Commission Australian Government Solicitor

Counsel for Comcare Mr J R Wallace

Solicitor for Comcare Sparke Helmore Solicitors