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Administrative Appeals Tribunal of Australia |
Last Updated: 6 February 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/1165
VETERANS' APPEALS DIVISION )
Re JACK BERRY
And REPATRIATION COMMISSION
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member
Date 6 February 2002
Place Melbourne
Decision The Tribunal varies the decision of the Repatriation Commission made 10 June 1998 to provide: (i) the decision accepting post-traumatic stress disorder as a war-caused disease from 13 May 1997 is revoked; (ii) generalised anxiety disorder is not a war-caused disease; (iii) gastro-oesophageal reflux disease is a war-caused disease with effect from 13 May 1987; (iv) chronic bronchitis is a war-caused disease with effect from 13 May 1997; (v) gastro-oesophageal reflux disease is to be assessed at 5 impairment points on Table 6.1.4 of the GARP and chronic bronchitis is to be assessed at 39 impairment points; (vi) Mr Berry is entitled to pension at 100% of the general rate from 13 May 1997.
(Sgd) Joan Dwyer
Senior Member
BACKGROUND 5
THE REASON FOR THE REVOCATION OF THE DECISIONS ACCEPTING THE RELEVANT CONDITIONS AS WAR-CAUSED 7
POST-TRAUMATIC STRESS DISORDER 15
THE ISSUE WHETHER MR BERRY SUFFERS FROM PTSD 15
THE METHOD OF DIAGNOSIS 17
EXPOSURE TO A TRAUMATIC EVENT 25
GENERALISED ANXIETY DISORDER 25
PANIC DISORDER 25
PSYCHOACTIVE SUBSTANCE ABUSE OR DEPENDENCE 25
GASTRO-OESOPHAGEAL REFLUX DISEASE 25
CHRONIC BRONCHITIS 25
ASSESSMENT 25
VETERANS' AFFAIRS - application for review of decision revoking decisions accepting PTSD, gastro-oesophageal reflux disease and chronic asthmatic bronchitis as war-caused - reason for revocation that history of service reported to psychiatrist was not accurate - veteran claimed psychiatrist had confused accounts of "flashbacks/nightmares" with history of service - incident in Bofors magazine during practice of Action Stations relied on as only traumatic event or stressor during operational service - PTSD - whether applicant's psychiatric symptoms properly diagnosed as PTSD in accordance with diagnostic criteria in DSM IV - whether applicant was exposed to a traumatic event as required by criteria A(1) and (2) - standard of proof - question whether incident happened or whether applicant's recollection faulty in some respects - finding that practice call to Action Stations did not involve "actual or threatened death or serious injury, or a threat to . . . physical integrity" - finding that applicant does not suffer from PTSD - concession that applicant suffers from generalised anxiety disorder but not that it is war-caused - factor in SoP requires stressful event not more than two years before clinical onset of generalised anxiety disorder - no evidence pointing to clinical onset within two years of operational service - hypothesis not reasonable - gastro-oesophageal reflux disease and chronic bronchitis - accepted as war-caused diseases - due to smoking factor in SoPs - Tribunal unable to be satisfied beyond reasonable doubt that applicant's smoking habit did not commence as described by him after an incident in Bofors magazine - decision under review varied
Veterans' Entitlements Act s 9, 23(1)(b) and (c), 24(1)(b) and (c), 120(1),(3) 120A(3)
Statement of Principles Instrument No. 1 of 2000
Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No. 62 of 1999
Statement of Principles Instrument No. 121 of 1995
Statement of Principles Instrument No. 73 of 1997
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Williams v Repatriation Commission [2001] FCA 601
Re Carroll and Repatriation Commission [2000] AATA 180
Repatriation Commission v Linton [2001] FMACA 124
6 February 2002 Mrs Joan Dwyer, Senior Member Mr A Argent, Member
background
1. This is an application for review of a decision of the Repatriation Commission ("the Commission") made 10 June 1999 (T26 pp139-148) and affirmed by the Veterans' Review Board ("the VRB") on 24 July 2000 (T2 ppvi-xix).
2. The matter is unusual in that the Commission on 10 June 1999 revoked decisions it had made on 14 January (T14 pp93-99) and 7 May 1998 (T20 pp113-115), accepting post traumatic stress disorder ("PTSD"), gastro-oesophageal reflux disease and chronic asthmatic bronchitis as war-caused from 13 May 1997. The Commission also cancelled Mr Berry's entitlement to disability pension in respect of those conditions from 13 May 1997, under ss 31(6) &(7) of the Veterans' Entitlements Act 1986 ("the Act"). The VRB on 24 July 2000 amended the diagnosis of PTSD, by adding "panic attacks with agoraphobia, substance abuse---alcohol and substance induced persisting amnestic disorder", and affirmed the revocation and cancellation decisions under review.
3. The Tribunal, when it started hearing this matter, was constituted by Senior Member Dwyer, Mr Argent and Ms Perton, Members. After the first day of hearing, and before the resumed hearing, Ms Perton ceased to be available for the purposes of the proceeding. The Tribunal was reconstituted, with the agreement of the parties, so that the proceeding was completed by the remaining members.
4. Mr O'Brien of Counsel appeared for Mr Berry. Mr Hanks, one of Her Majesty's Counsel, and Ms McMahon of Counsel appeared for the Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Berry gave evidence. Evidence on his behalf was also given by Dr Cole and by Dr Chen and Mr Charman who both gave evidence over the telephone. The respondent called Commodore Mulcare, Rear-Admiral Griffiths, who gave telephone evidence, and Dr Walton.
5. Mr Berry served in the Royal Australian Navy from 8 February 1954 to 28 May 1960. He served in HMAS Melbourne with the Far East Strategic Reserve ("FESR"). The period of that service from 21 September 1956 to 12 October 1956 constitutes operational service under s 6D(2)(b) of the Act. That is the only service of Mr Berry which is relevant to this application for review.
6. The circumstances in which a disease shall be taken to be war-caused are set out in s 9 of the Act. The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (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 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 or defence cause 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 section120A
7. Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides as follows:
(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 a determination of the Commission under subsection180A (2);
(b) that upholds the hypothesis.
8. As Mr Berry's claim was lodged after 1 June 1994, the provisions of s120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of PTSD. The Tribunal must apply the relevant SoP in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Berry's medical condition with the circumstances of his particular service.
the reason for the revocation of the decisions accepting the relevant conditions as war-caused
9. When Mr Berry lodged his claim on 3 June 1997, he stated in respect of the condition which he described as "anxiety", that his service caused his disability through "RAN service, including action station in ammunition magazine Malaya". In respect of the ulcerated oesophagus, later diagnosed as gastro-oesophageal reflux disease, Mr Berry stated that he understood that it resulted from anxiety. In a report on cigarette smoking (T docs pp69-70), Mr Berry stated "I tended to suffer from anxiety attacks and it was suggested that a cigarette would calm my nerves - it did". He said that he started smoking in September 1956, when he smoked about 10 a day, but by early 1957 he had increased to 20-30 a day. He increased further to 90 a day after discharge, when he began to work for a cigarette company and was given free cigarettes each week.
10. The Repatriation Commission arranged for a psychiatrist, Dr Chen, to examine Mr Berry. His report of 9 December 1997 is at T9 pp71-72. Dr Chen took the following history:
He joined the Navy in 1954 and was discharged in May 1960. He was 17 years old when he joined. He was stationed more or less on the aircraft carrier, over in UK for 8 months training course. He was attached to a fighter squadron and came back on . . . an aircraft carrier. He was in the Malayan emergency, Far East Strategic Reserve, and was blockading Malaya because of communist invasion. Many pilots were killed. One of his jobs was to pull them out of the sea and burn them. He knew many of them and it was terrible. He had to help clear up their cabins and their personal effects. He became very nervous and he took up smoking and drinking. He used to soil himself when stressed. He wanted to be recognized . . .as being on active service. His job was on action station and working in ammunition hold.
He has palpitation since 1956 in Malaya.
Dr Chen diagnosed long standing PTSD arising from Mr Berry's experience in the Navy.
11. On 14 January 1998 Mr Berry was advised that his claim for post-traumatic stress disorder and gastro-oesophageal reflux disease had been accepted with effect from 13 May 1997. The reason for accepting post-traumatic stress disorder was simply given as "the existence of a stressor". The claim for gastro-oesophageal reflux disease was stated to have been accepted on the basis of cigarette smoking. On review, another delegate of the Repatriation Commission also accepted the claim for chronic asthmatic bronchitis on the basis of cigarette smoking. Pension was found to be payable to Mr Berry at 100% of the general rate from the first pension payday after 13 May 1997, which was the date from which the Act was amended to cover service in the FESR.
12. It is not quite clear from the T documents why Professor Grey, of the Australian Defence Force Academy, was asked to provide a report on Mr Berry's service. The request seems to have been made following further scrutiny of Mr Berry's claims in the process of a Veterans' Review Board decision reviewing a Repatriation Commission rejection of claims for back conditions. Professor Grey wrote on 18 December 1998 (T24 p137):
Mr Berry served in HMAS Melbourne as a steward with No 808 Squadron and has a period of service with the Far East Strategic Reserve between 28 September and 27 October 1956. Melbourne was attached to the FESR periodically because neither the Royal Navy nor Royal Australian Navy could afford to station a light fleet carrier in the Far East on a full-time basis.
During the period in question, Melbourne participated in Exercise Albatross, a large-scale maritime exercise conducted with ships from a number of navies from SEATO countries. During the exercise the aircraft from the carrier's squadrons flew extensively and regularly as part of the exercise program, and the details of this are contained in the ship's Report of Proceedings for that month.
At no stage during service with FESR was Melbourne engaged in 'blockading' Malaya. The carrier took no part at any time in the so-called 'secondary role' of the FESR, namely involvement in operations connected with the Malayan Emergency. Melbourne's aircraft were never engaged in combat against anybody at any time in the carrier's service, and by extension there were no combat causalities sustained by those aircrew. Mr Berry could not have recovered bodies in the manner alleged, since these did not exist. Had such causalities been incurred, the remains would certainly not have been disposed of through incineration (I cannot conceive of where you might accomplish such a grisly task on board a ship), but would either have been buried at sea in traditional manner or returned to shore for burial.
The only flight crew causalities sustained by Melbourne while on FESR service were in March 1965 (A/Sub Lt John Hutchison) and April 1966 (Lt E.G. Kennell), both as a result of aircraft crashing into the sea.
Mr Berry's claims are completely without substance.
13. On 10 June 1999 a delegate of the Repatriation Commission, acting pursuant to ss 31(4), (6) and (7) of the Act, revoked those parts of the decisions of 14 January 1998 and 7 May 1998 which had accepted PTSD, gastro-oesophageal reflux disease and chronic asthmatic bronchitis. The delegate also cancelled disability pension in respect of those conditions from the date of effect, 13 May 1997. The delegate wrote that on the basis of Professor Grey's report he was satisfied beyond reasonable doubt, "that none of the events involving pilot losses, the retrieval and incineration of bodies nor the disposal of deceaseds' personal effects in fact occurred" (T26 p140A). The delegate concluded (T26 p141):
Having considered the statements which have been submitted through Dr Chen, psychiatrist, and the historical analysis provided by Dr Grey, I am satisfied that the evidence in relation to alleged stressors on which the claim for post traumatic stress disorder was first considered was false in material particulars. I therefore vary the decision of 14 January 1998 and revoke the acceptance of post traumatic stress disorder as a war-caused disability.
14. The delegate then proceeded to consider the smoking factor in respect of the conditions of gastro-oesophageal reflux disease and chronic asthmatic bronchitis. The delegate wrote (T26 pp141-142):
In his responses to a questionnaire on his smoking history received on 6 October 1997, Mr Berry stated that he began to smoke in September 1956 as he tended to suffer from anxiety attacks and "it was suggested that a cigarette would calm [his] nerves". He further stated that by early 1957 his consumption had risen to 20 to 30 cigarettes per day as he started to enjoy smoking and was addicted. In 1960 Mr Berry's smoking rose to 90 cigarettes per day when he began working for a cigarette company and was given a carton each week.
On the question of Mr Berry's commencing to smoke because [of] anxiety attacks, his eligible service would account for these attacks, if it had been as he described to Dr Chen. However, on the basis of the historical report provided by Dr Grey, I am satisfied beyond reasonable doubt that the brief period of Mr Berry's eligible service was essentially no different from his service immediately before or after it. There is nothing in the period 21 September 1956 to 12 October 1956 which causally links his smoking to the circumstances of his service. I am accordingly satisfied beyond reasonable doubt that his smoking habit is unrelated to the circumstances of his eligible service and that any smoking related disease is also unrelated to service. I therefore vary the decision of 7 May 1998 and revoke the acceptance of gastro-oesophageal reflux disease and chronic asthmatic bronchitis as war-caused disabilities.
15. It seems that Mr Berry's solicitor offered an explanation of the history challenged by Professor Grey. Mr Herman of the Department of Veterans' Affairs stated in a file Minute dated 13 September 1999 (T35 p164):
It is now being put forward that Mr Berry witnessed the death of 2 pilots in an aircraft crash in UK and that his operational service in FESR caused flashbacks and nightmares (and presumably onset or aggravation of PTSD and a smoking habit). It is said that what he described to Dr Chen was the flashbacks/nightmares and Dr Chen mistook it for actual FESR experience.
16. On 3 November 1999 after the Repatriation Commission had revoked the acceptance of Mr Berry's PTSD and other conditions as war-caused, Mr Berry made a statement as to the circumstances of his service. It is in the T documents at pages 212-218. So far as relevant it reads as follows:
I was a R.A.N Steward serving on H.M.A.S. Melbourne from the 8th of Sept. 1956 to the 10th Dec. 1956. I was 20 yrs old at that time. During this period the Melbourne was allotted for Duty to the Malayan Emergency 1955-1960. I was attached to 808 SQDR. (Sea Venoms). We were part of the F.E.S.R.
. . .
I would like to go into explaining what we (naval personnel) were told to expect prior to sailing to the Malayan Campaign, we knew there was a conflict going on in Malaya against the Communists Forces, because the year before 1955, the then Prime Minister of Australia Robert Menzies, deployed all service personnel Army Navy and Airforce on the 1st July 1955 and in a speech he did say, that the Communist insurgence of Malaya and Singapore could be a threat to the shores of Australia (not exactly in those words). It was a well known fact that S.E. Asia was in danger of the Chinese taking over, we already had a war in Korea, and it was well known the Russians were backing up the Chinese forces. By this time the Russians had hundreds of submarines, I suppose no one would have known how many were operating in Malaya. The Australian Government committed the Army Navy and Airforce to the task, with a dual role to provide a front line of defence in a possible global war or regional war with China. The Naval Forces came under the control of the Royal Naval Commander-in-Chief Far East Stations, and it was emphasised ships of the R.A.N. should form an integral part of the Far East Fleet, some directives were blockading Malaya, so nothing got in or out, intercepting enemy signals, firing on enemy positions when required etc. etc. All these things listed above we were expected to encounter during the Malayan emergency, and no one told us anything different in the period we spent up in Malaya, these I believe were the true facts, from naval personnel who served up there at the time. . . .
I cannot take this lightly, being accused of a fraudulent act without myself be given the right to explain. I honestly believe things were mis-interpreted, and I would like to help get it sorted out.
It was never my intention to convey to Dr Chen or any other person that pilots of the Fleet Air Arm had been killed in Malaya, and this I think is where things got confused. When I was talking to Dr Chen I mentioned I have dreams of pilots crashing getting killed I have known several who have been killed but I think where the mix up came about was a Sea-venom crashed into the sea in Hervey Bay or Morton Bay? their names were Lt (P) Thompson and Lt (O) Potts. They were part of the Malayan emergency, I was their cabin steward, I helped gather their possessions together for collection. They crashed on the 9th Aug. 1956. I was with these two pilot & observer in England 1955 1956 whilst doing training. We were on our way to Malaya when they crashed. So we had to turn around and back to Jervis Bay to unload 808 SQDR (Sea Venoms) for a full inquiry into the crash. This was a formality, we stayed at H.M.A.S. Albatross for over two weeks, then the Melbourne picked up 808 SQDR. at Jervis Bay again to continue our passage to Malaya via Sydney 7th Sept 1956. Prior to embarking onto the Melbourne on the 6th Aug 56 Lt/Cmdr. Dunlop crashed his vampire into the bush near Jervis Bay.
Regarding recovering and burning of bodies, well in answer to that I was a cabin, table and wine steward I was never a part of a recovery team. At no stage of my naval career was I part of any recovery team. I think this was done by seaman or naval airman (ratings). There was no way I would say these things I have never heard of anyone burning bodies apart from cremation "funeral". I might be a stresser. But I am not a looney. Surely someone would have picked this up in 1997, because this would not happen in the Australian Forces, other countries maybe, I don't know. The only thing I can come up with whilst talking to Dr. Chen (and this could be the mix up) when I was in England and I did mention this to Dr. Chen I was with 808 SQDR. stationed at H.M.S. Heron Yeovilton Somerset a Naval Air Station for about 8 months I shall never forget that day it was the 5th Jan 1956, we got the message in our mess, that one of our planes had crashed into a caravan park nearby. A mate of mine who had a car and myself followed the firetender to the site of the crash. We saw the burnt bodies of Lt/Cdr Wyatt and Cdr. Brown (P). They had crashed into caravans killing a lady and her child it was terrible.
Now I would like to talk about action stations, when I first saw Dr. Chen I mentioned to him my duty on action stations, we did not go into it then, but I have since. I have been seeing Dr Chen for over 12 months. Now let me tell you.
ACTION STATIONS
When the Melbourne was called to Action Stations in Malaya in 1956, task I was given was ammunition hold (I was never given any training for this) when I was directed to the ammunition hold, I was on my own I was told to wait for orders, everything started to come back to me, what we had been told what could happen (I shit) everything went through my mind, my life was in danger, I was going to be blown to pieces, I was traumatized to the point, I had trouble with my breathing, I started to panic, and got agitated so much, I was shaking all over and I came out in a lather of sweat all over me, I don't know how long I was down there, but it seemed like hours. If it was not for a Petty Officer who saw me when I came out. The state I was in, he put his arms around me to pacify me, I don't know what I would have done. That day I will never get out of my mind, to me it was the most traumatic experience I have come across, and I would not wish this on anyone, and I have suffered ever since more so as I have got older.
On my original claim form for disability I stated R.A.N. Service Action Stations - my doctor gave a medical report on me stating I've suffered from anxiety attacks panic attacks and also agoraphobia over the years, and as the years went by I got worse. I am a very sick person and Dr. Chen will back me up on this. I have been seeing him for nearly 12 months on a regular basis. When I saw him this July and told him about the letter I received from D.V.A. about revoking my 100% disability pension and why. He put me on more medication, because I have slipped back more, I was in a state I hadn't been in for month's, he had been helping me so much. He told me it appears that the wrong impression was conveyed to him, resulting what he wrote in his report to D.V.A.
ON THE POINT OF SMOKING
I did take up smoking after the trauma I experienced on Action Station Malaya 1956. It was the Petty Officer who put his arms around me to pacify me, and gave me a cigarette and he said, this might help calm you down, it did help and him talking to me, I have smoked ever since, more so when I had attacks and as I said, I got worse with my problem as I got older and the more I smoked, until about 6 years ago when I gave it up on my doctor's advice because of my ulcerated gut, emphysema (chronic asthmatic bronchitis) hiatus hernia were giving me hell.
If I had not given up, I think I would be under ground by now, if not, very very sick.
I hope this statement will give you help to understand, how things got off the rails from the start, and I think Dr. Chen will agree with this, and I swear by Almighty God everything I have told you is the truth, and I honestly believe I have been treated badly. (some punctuation amended)
17. The VRB heard and determined the application before it on 24 July 2000. At that time it had before it a second report from Dr Chen dated 4 October 1999 (T2 pxxviii and R8 pp18-19). Dr Chen wrote that his earlier report had apparently contained information "which was not adequately elaborated upon at the time and had lead to some misunderstanding of Mr Berry's position." Dr Chen went on to say:
In the course of treatment, he . . . revealed that the information contained in my earlier report of 9 December 1997 was in dispute. The report, I understand, will be presented for the review of his case soon.
He clarified information contained therein:
1. He did not see any pilots killed in Malaya but two he had known, Lt (P) Thompson and Lt (O) Potts who were part of the Malayan Emergency crashed their Sea Venon [sic] plane in Harvey Bay or Morton Bay in Queensland on 9.8.56. Their bodies were never recovered.
2. He did observe whilst embarking on the Melbourne on 6.8.56 a Vampire plane crash into the bush off Jarvis Bay, NSW. The pilot was Lt/Commander Dunlop. A recovery team was sent to the crash site.
3. He actually saw the incinerated and charred bodies of a Lt/Commander Wyatt and a Commander Brown when their Sea Venon [sic] plane crashed in England into a caravan park and killed a woman and a child. It happened on 5.1.56.
4. Mr Berry did mention in the interview and examination 9.12.97 about Action Stations in Malaya. His duty was to await further order in the ammunition hold. He had, however, not elaborated further at the time. In subsequent sessions with him, it appears that the most traumatic experience he had while serving in the Navy in Malaya was when he was called to Action Stations. The ship was closed and there was blackout, he wetted himself, shook all over thinking that he would die. It brought back to him what was said in the briefing about the danger before he went to Malaya.
Mr Berry is unable to explain why he failed to point out what was the most traumatic experience he had in the Navy when he was first assessed in 1997. However, in my opinion, Mr Berry was not deceitful but he was probably not in the right frame of mind at the time to be able to give a more precise and more detailed account of his many traumatic experiences.
18. The material before the VRB also included a report from Dr Parkin dated 31 January 2000 (T40 p189-211). Mr Berry's representative at the VRB hearing relied on that report in submitting that the diagnosis of PTSD should be amended to "PTSD, panic attacks with agoraphobia, substance abuse alcohol and substance induced persisting amnestic disorder". Dr Parkin also referred to the fact that there was some question as to the veracity of Mr Berry's history. He wrote that Mr Berry did give a history of seeing charred and burnt bodies of pilots and did give a history of being affected by the deaths of pilots, but Dr Parkin also commented that it was conceivable that Dr Chen's original report related to a misapprehension. He considered the issue of Mr Berry not mentioning to Dr Chen the incident of being scared in the ammunition magazine and wrote at p199:
I find this completely consistent with the behaviour and histories of many servicemen. It is often not until they are asked direct questions about the traumas of their service that they will bring up incidents. Often they will see a situation of fear in such an environment as not being something that doctors would be interested in but rather would be interested in specific trauma. I accept this man's description that he was afraid at the time and fearful that a war would break out and that an aircraft carrier would be a prime target. I acknowledge that this was fairly unrealistic but it should be remembered that the Cold War was at that stage pretty hot. Many people feared that World War III would break out and his fears as described are not unreasonable. I thus accept, on the balance of probabilities, that this description is realistic. He did not exaggerate his symptomatology and said no to some of the specific questions that I asked. Either he has been well rehearsed or he is telling the truth. I tend to accept the latter.
19. The VRB acceded to the submission that the description of PTSD be amended by adding panic attacks and substance abuse, but affirmed the decision that PTSD, including the additional conditions, was not war-caused. It rejected Mr Berry's claim on the basis of adverse findings as to his credibility. It found that there were contradictions in significant aspects of his evidence so that his evidence was "insufficiently persuasive to point in the direction of the hypothesis advanced without confirmation" (T2 pxvi).
20. The Tribunal must consider whether the material before it raises a reasonable hypothesis connecting the claimed diseases with the circumstances of the service rendered by Mr Berry. Where there is a relevant SoP, that consideration must be in accordance with s 120A of the Act.
post-traumatic stress disorder
the issue whether mr berry suffers from ptsd
21. Before considering the evidence as to the circumstances of Mr Berry's service, it is appropriate to refer to the issue of standard of proof as to the question of diagnosis of a condition, that is to say to the question whether Mr Berry suffers from PTSD.
22. That matter was dealt with by the Full Court of the Federal Court in Repatriation Commission v Budworth [2001] FCA 1421. That case also concerned PTSD which was said to have resulted from experiences during service. The Full Court in Budworth approved the decision of the Full Court in Repatriation Commission v Cooke (1998) 160 ALR 17, where the Full Court said at p20:
We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120 (1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120 (3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a "determination" that the disease is war-caused.
The Full Court in Budworth said at paragraph 15:
We find the reasoning in Cooke persuasive. In our view, s 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the Commission, or the AAT on review, is required to determine whether a veteran is suffering from the claimed injury or disease, that issue must be decided to the "reasonable satisfaction" of the decision maker in accordance with s 120(4) of the Act.
23. The Full Court in Budworth concluded at paragraphs 19 and 20:
[W]e consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).
It was also submitted in the alternative by counsel for Mr Budworth, that if Cooke was correctly decided, it is not authority for "the approach of the appellant". We disagree. We regard Cooke as decisive of the critical issue on this appeal, namely what standard of proof is to be applied when determining whether a claimed injury or disease exists. Consequently we consider that the primary Judge erred in concluding that the reverse criminal standard of proof contained in s 120(1) of the Act was relevantly applicable. Although therefore we affirm the order of the primary Judge that the matter be remitted to the AAT to be heard and determined according to law, such determination will require reconsideration of . . . the appropriate application of the correct standard of proof as to whether the claimed disease exists.
24. The Full Court in Budworth said, "the primary Judge erred in concluding that the reverse criminal standard of proof contained in s 120(1) of the Act was relevantly applicable". Therefore the standard of proof applicable to an issue of diagnosis must be that in s 120(4) of the Act, namely reasonable satisfaction or balance of probabilities. That is repeated in paragraph 20 of the decision of the Full Court. The last sentence of paragraph 19 of the reasons of the Full Court seems to be capable of being understood as endorsing the approach adopted by Madgwick J, at first instance. We understand that is not the meaning the Full Court intended.
25. The collection of symptoms from which the applicant suffers can be ascertained from his evidence and that of the psychiatrists who have examined him and provided reports and who have given evidence. Mr Berry has described anxiety, anxiety or panic attacks, flashbacks, sleep disturbance, dreams of the incident when he went to Action Stations, and of seeing charred bodies, restlessness and an increase in alcohol consumption. He also said the incident caused him to take up smoking. Further he said he felt agitation and isolation or social withdrawal and was irritable. He told the VRB (R12) that he does not like crowds.
the method of diagnosis
26. Mr Hanks cross-examined the applicant's expert witnesses and addressed the Tribunal (trans. p316) on the basis that:
[T]he diagnosis question is to be approached . . . by looking at the diagnostic criteria in the statement of principles which, in this case happened to be identical in substance with the diagnostic criteria in DSM IV.
27. He explained that he made that submission in reliance on Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at pp702-703 where Weinberg J said at paragraphs 51-58:
51 The applicant contends that the AAT misconstrued the relevant SoP by failing to consider whether the indicia for generalised anxiety disorder were present in the veteran's case. Generalised anxiety disorder is a disease which is defined by the presence of certain designated symptoms. Those symptoms must exist for the period specified in the SoP. The presence of some only of those symptoms, or the presence of all of the requisite symptoms for less than the specified period, would not permit a diagnosis of the disease.
52 The AAT clearly had some of the requisite symptoms in mind when it referred to the evidence of Dr Wahr. The AAT stated at par 18:
"At first Dr Wahr was reluctant to discuss the symptoms in the SoP definition. When he was pressed to do so in re-examination, he said that in his opinion symptoms a(ii) (A), (C), (D) and (F) and possibly symptom (E) were all present. As to symptom (a)(i) he said that in his opinion Mr Gosewinckel for many years controlled his anxiety and worry by excessive drinking."
53 The AAT made no reference at this point in its reasons for decision, when dealing with the question of diagnosis, to the essential criterion prescribed by par (a)(v). That criterion is as follows:
"(v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning."
54 Moreover, the applicant submitted, the AAT should also have considered the exclusionary criteria in pars (a)(iii) and (iv), (b) and (c) of the definition.
55 It is clear that the AAT could not accept Dr Wahr's opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP. As the Full Court held in Shelton v Repatriation Commission [1999] FCA 181 at par 6 the SoP requires that the disease in question be "manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease".
56 Mr Hanks submitted that the AAT should have asked itself whether it was reasonably satisfied that the veteran was suffering from generalised anxiety disorder, as defined in clause 4 of the SoP - that is, it should have asked itself: "Are we reasonably satisfied that the diagnostic criteria prescribed by the SoP as essential for a diagnosis of generalised anxiety disorder have occurred more days than not for at least six months?"
57 I accept this submission in so far as it relates to the AAT's failure to approach the prescribed criteria through s 120(4) rather than ss 120(1) and (3) of the Act. I would not, however, have been disposed to allow this application merely because the AAT did not refer in terms to par (a)(v) of the SoP at this point in its reasons for decision, and did not refer to the exclusionary criteria in pars (a)(iii) and (iv), (b) and (c) at any point in those reasons, apart from setting out the SoP in par 31.
58 While Dr Wahr did not, in terms, refer to those criteria, it seems to me to have been implicit in his report, and in his evidence, that in his opinion the veteran currently met each of the requisite criteria for generalised anxiety disorder as set out in the SoP. Had the AAT applied the correct standard of proof, it would have been open to it to have so concluded.
28. However the Full Court in Benjamin v Repatriation Commission [2001] FCA 1879 has now stated in the clearest language in paragraph 41 that "SoPs are not relevant to the question of diagnosis". The Full Court said:
41 The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever.
29. In this matter because of the emphasis placed by Mr Hanks throughout the hearing on the definition in the relevant SoPs, the Tribunal did not receive in evidence the diagnostic criteria for PTSD as they appear in DSM IV. After the Tribunal received the decision in Benjamin, it referred to those criteria in DSM IV. As the Full Court said in Benjamin, the similarity of definition between the SoP and the criteria in DSM IV makes the distinction "of no practical consequence whatsoever".
30. The diagnostic criteria in DSM IV are as follows:
Diagnostic criteria for 309.81 Post Traumatic
Stress Disorder
A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person's response involved intense fear, helplessness, or horror. Note: In children, this may he expressed instead by disorganised or agitated behaviour
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognisable content.
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
(4) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event
(5) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (e.g., unable to have loving feelings)
(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1) difficulty falling or staying asleep
(2) irritability or outbursts of anger
(3) difficulty concentrating
(4) hypervigilance
(5) exaggerated startle response
E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
31. The first psychiatrist to diagnose PTSD was Dr Chen. As set out in paragraphs 10-17 of these reasons, he made that diagnosis in December 1997 on the basis of a graphic account of events during service which was later conceded to be inaccurate in a number of material particulars.
32. There were significant difficulties with Dr Chen's evidence. First, the communication over the telephone was poor. Secondly, he did not have his clinical notes. Thirdly, he did not seem to be able to add anything to the contents of his reports. Fourthly he did not seem aware of the diagnostic criteria in DSM IV. After Dr Chen had given his evidence-in-chief and there had been some short cross-examination, the Tribunal questioned whether it was necessary to continue the cross-examination which was difficult, because of being over the telephone, and also not helpful because of the substance of the evidence. Dr Chen seemed not to have paid regard to either the DSM IV diagnostic criteria or the relevant SoPs.
33. There was another reason why the Tribunal indicated that it would be unlikely to place reliance on Dr Chen's evidence. As set out in paragraph 17 of these reasons his report of 4 October 1999 (T2 pxxviii and R8 pp18-19)) corrected the history set out in his earlier report of 9 December 1997 (T9 p71). It concluded with the following paragraph:
Mr Berry is unable to explain why he failed to point out what was the most traumatic experience he had in the Navy when he was first assessed in 1997. However, in my opinion, Mr Berry was not deceitful but he was probably not in the right frame of mind at the time to be able to give a more precise and more detailed account of his many traumatic experiences.
34. When Dr Chen's file was tendered in evidence (R8), at pages 21 and 22, it contained almost the whole of his report of 4 October 1999 in handwritten form including the concluding paragraph as to Dr Chen's opinion quoted above. The handwriting, or rather printing, appeared to be that of Mr Berry, as shown in his statement of 3 November 1999 (T docs pp212-218). Mr Berry, in cross-examination, agreed that it was his handwriting, but said he could not recall how he came to write it (trans. pp141-142). We had concerns about this issue but did not raise it with Dr Chen due to the difficulty of communicating with him over the telephone, and to the other unsatisfactory features of his evidence. The evidence suggests that Mr Berry wrote out what he wanted Dr Chen to say in his report and Dr Chen complied. That does give rise to grave reservations about the weight we might give to Dr Chen's evidence.
35. The other psychiatrists who have diagnosed Mr Berry as suffering from PTSD are Dr Parkin and Dr Cole. Dr Parkin did not give evidence. In his report of 31 January 2000 (T40 pp189-200), he accepted the diagnosis of PTSD made by Dr Chen. He wrote (p198-199):
Final Diagnostic assessment and Report Summary
Differential Diagnosis and Final Diagnosis
This man has a number of problems which is not uncommon in veterans. He suffers from Post-traumatic Stress Disorder, panic attacks with agoraphobia and substance abuse - alcohol. Substance-Induced Persisting amnestic Disorder.
DSM-IV Criteria
He satisfies the DSM-IV criteria for all of these diagnoses as described above in the history.
Relationships of Diagnoses to War Service
I have read the arguments about this and I acknowledge that there is some question as to the veracity of this man's history. He did give a history of seeing charred and burnt bodies of pilots and he did give a history of being affected by the deaths of pilots. It is conceivable that Dr Chen's original report related to a misapprehension. It would appear unlikely that any sailor would suggest that they collected the bodies and then burnt them on the deck of an aircraft carrier. As to why he may have neglected to mention the issue of being scared in the magazine I find this completely consistent with the behaviour and histories of many servicemen. It is often not until they are asked direct questions about the traumas of their service that they will bring up incidents. . . . I thus accept, on the balance of probabilities, that this description is realistic. He did not exaggerate his symptomatology and said no to some of the specific questions that I asked. Either he has been well rehearsed or he is telling the truth. I tend to accept the latter.
36. Dr Cole provided a report dated 14 December 2000 (A1). He wrote:
When he was questioned more closely about his war service he said that he had served in H.M.A.S. Melbourne as part of the Eastern Strategic Reserve from the 21st September, 1956 to 12th October, 1956. During that time they were called to action stations. His station was in the magazine below the water line. He was told to go in and wait for orders. He was locked in alone. There was only the one hatch which was locked from the outside. It was a large area lined with ammunition and dimly lit. His job was to pass up ammunition through a hatch to the deck with the aid of a block and tackle. It seemed as though he had been locked in there for an hour or more. He was terrified and thought he was going to die. He was incontinent of faeces and wet with sweat. When he got out the Petty Officer could see the state that he was in and came up to him, put his arm around him, attempted to pacify him and gave him a cigarette which he smoked although he had never smoked before. He was able to confide in a close friend but in no-one else. (At this stage he was shown a copy of his statement of the 3rd November, 1999 and agreed that its contents were correct.) Although there were other stresses during the course of his service that was the main one.
37. When Dr Cole gave evidence Mr O'Brien corrected some of the history Dr Cole had taken. He told Dr Cole that in evidence Mr Berry had said he was not actually locked in the ammunition magazine, but the hatch was closed and he understood that he was to stay there until he received a further order. Mr O'Brien did not tell Dr Cole that Dr Byrne in his report (R7) stated that Mr Berry had indicated to him that he was not incontinent of faeces, but that he had used the expression "I shit myself", as a way of communicating that he felt very scared, and that Mr Berry had confirmed Dr Byrne's account in his evidence (trans. p85). Dr Cole confirmed that he diagnosed Mr Berry as suffering from PTSD.
38. Mr Hanks then explored with Dr Cole how he had made the diagnosis of PTSD in reference to the diagnostic criteria in the SoP which, as we have stated, are very closely derived from DSM IV. He asked about criterion A which in DSM IV is as follows:
A. the person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(ii) the person's response involved intense fear, helplessness, or horror.
Dr Cole said that he regarded criterion A(i) as satisfied if it was Mr Berry's perception that the call to Action Stations involved actual or threatened death or serious injury or a threat to the physical integrity of self or others.
39. Dr Cole added that if Mr Berry was in fact called to Action Stations, and confined to the magazine beneath the waterline, and did not know what was happening up above, then he would have experienced a very real sense of threat to his person. Dr Cole said that if Mr Berry had known it was an exercise then it would not have satisfied the criteria. Dr Cole explained that in his opinion it was Mr Berry's perception which was important, rather than the objective facts as to risk, because "people don't live by objective facts" (trans. p180). Dr Cole also explained how he had concluded that all the other diagnostic criteria were satisfied.
40. Dr Cole conceded that there would be problems with his diagnosis if Mr Berry had earlier been diagnosed as having an anxiety condition with its onset in 1986. He said if there were no nervous symptoms from 1956 to 1986, it would be highly unlikely that the symptoms were related to the events in 1956.
41. Mr Hanks also put to Dr Cole that if Mr Berry does suffer from PTSD, it could result from an earlier incident during service, to which the Act does not apply. He referred to the incident when Mr Berry was in England and saw the charred bodies of a pilot and observer whose plane had crashed. Dr Cole agreed that that event could have contributed to PTSD, and said that if the incident in the ammunition magazine did not occur, it could be the traumatic event on which the diagnosis of PTSD is based.
42. The respondent's psychiatrist, Dr Walton, in a report dated 23 October 2001 (R17), diagnosed Mr Berry as suffering from a generalised anxiety disorder but not from PTSD. He wrote:
1. I understand that Dr. Chen made a diagnosis of post-traumatic stress disorder and while this veteran does provide a history of some post-traumatic symptoms, for example, recapitulation nightmares and anxiety prompted by reminders of his military experience, in my opinion there is an insufficient range of necessary symptoms of sufficient severity to justify a formal clinical diagnosis of a post-traumatic stress disorder. The veteran certainly does provide a history of sustained anxiety, at times of panic proportions. The picture would seem to be not that of panic attacks dominating but rather more pervasive anxiety and thus my preferred diagnosis would be that of a generalised anxiety disorder rather than panic disorder.
The veteran also provides a history of somewhat excessive alcohol consumption but he has been able to moderate his alcohol intake. I obtained no convincing history of symptoms of tolerance or withdrawal nor any adverse social or other impact because of the alcohol intake. I am disinclined to make an independent diagnosis of alcohol abuse or alcohol dependency, rather this man's somewhat excessive alcohol consumption over the years very likely has been an attempt to quell underlying anxiety and thus I would see it as part and parcel of the anxiety condition.
2. The veteran reports becoming anxious merely contemplating entering operational service and, prior to that service, there seem to have been three incidents of plane crashes which he experienced as stressful. This situation has relevance clinically but I presume is precluded from consideration specifically in relation to his claim.
Mr. Berry is inclined to make light of the two motor vehicle accidents which occurred after his period of operational service but I certainly would see those as relevant aggravating factors, although perhaps temporarily only, but, again, those would not seem to be compensible incidents.
What this veteran does highlight during his period of operational service is a frightening experience of being in the ammunition hold when the ship was at action stations. I claim no expertise whatsoever as a military historian but it seems surprising that a sailor might be actually locked in an ammunition compartment. Whatever may be the precise factual situation. Mr. Berry certainly gives a convincing history of his experiencing troublesome anxiety of panic proportions associated with that incident and it seems that he has been plagued by troublesome anxiety thereafter.
I obtained no other history of relevant causal factors.
43. Dr Walton also wrote that he doubted that the incident in the ammunition hold would meet the diagnostic criterion that Mr Berry "experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others".
44. The respondent also arranged for Mr Berry to be assessed by Dr Byrne, a psychologist. His report of 20 December 2000 (R7), is significant as it sets out a history which differs in some respects from that obtained any of the psychiatrists who had seen Mr Berry prior to him attending Dr Byrne. For instance, Dr Byrne clarified that during the incident in the ammunition magazine, Mr Berry neither soiled nor wet himself, but had used the sentence "I shit myself" as a way of communicating how frightened he was, and that the reference to wetting himself had been a reference to perspiration rather than to losing control of his bladder. Mr Berry confirmed in his evidence (trans. p85) that Dr Byrne's history was correct.
45. Dr Byrne administered two psychological tests to Mr Berry; the Minnesota Multi Phasic Personality Inventory (MMP 1-2) and the Rorschach test. Dr Byrne pointed to a contradiction in the results obtained in those two tests. In the MMPI-R [sic] Mr Berry reported a significant preoccupation with his health and physical well being, which was inconsistent with the Rorschach test where there were no indications of such a preoccupation. Dr Byrne commented as to the results of the two tests at paragraphs 13.6 to 13.13, on page 22 of his report (R7):
13.6 There are several findings of note. First, there is some suggestion that Mr Berry answered the items in a way which portrays himself as being more impaired than he actually feels. (This should not be interpreted as a criticism of Mr Berry - nor should it be interpreted necessarily as an attempt at dishonesty - this comment simply reflects the fact that his profile bears similarities to people who have been instructed to "fake bad" under research conditions.
13.7 Secondly, the overall profile is an extremely rare one which is seen in only about 2 percent of the normal population and in only 5 percent of males who attend for outpatient treatment.
13.8 The profile is exceedingly elevated, and a person with such severe symptoms would ordinarily have a background of psychiatric hospitalisation or at best, a long and protracted period of outpatient treatment.
13.9 The profile is mainly dominated by an endorsement of depressive symptoms and a description of a wide variety of vague physical complaints.
13.10 There is also indication that he is experiencing more difficulties in his marriage than Mr Berry reported to me.
13.11 On the Rorschach examination Mr Berry provided an average number of responses yielding a valid profile.
13.12 It is extremely clear that this is not someone suffering from Post-Traumatic Stress Disorder, or indeed, from any type of anxiety disorder. The Rorschach examination has several well documented factors which have been shown to be sensitive indicators of subjective anxiety. There is only one such indicator, which suggests that Mr Berry does tend to be somewhat self critical when thinking about himself. However, this alone is not causing him any unusual degree of discomfort or stress.
13.13 Although he does not have the same degree of psychological resources as most people, it is clear that he is maintaining a stable sense of psychological balance by making his life as simple and uncomplicated as possible.
46. Dr Byrne concluded at pages 28 and 29 of his report:
* In summary, it is quite possible Mr Berry is experiencing a degree of unhappiness characterised by slightly less self esteem than would be desirable and some self critical attitudes. However, in my opinion this man is not suffering from any psychological disorder.
* I am unable to account for the discrepancy between the many symptoms he complains of, the lack of correlation between these symptoms and any well recognised psychological disorder nor can I account for the differences between the history he reports and what is typically observed in people who experience a severe trauma. I am also unable to reconcile the differences in findings in the two psychological tests.
Dr Byrne concluded that Mr Berry did not suffer from post-traumatic stress disorder, panic disorder, generalised anxiety disorder, or depressive disorder.
47. Thus, the respondent's expert witnesses diagnosed Mr Berry as suffering from generalised anxiety disorder (Dr Walton) or no psychiatric disorder (Dr Byrne). The psychiatrists called by the applicant all made a diagnosis of PTSD. On the basis of Dr Walton's opinion, the respondent conceded that Mr Berry suffered from generalised anxiety disorder, but the respondent submitted that he had not been exposed to a traumatic event as required by criterion A(i) in the definition of PTSD in the SoP, and that he did not have the necessary range of symptoms of sufficient severity to make a diagnosis of PTSD. The decision in Benjamin makes it clear that it is the definition of PTSD in DSM IV, and not that in the SoP, to which we must refer, although there is no real difference between the two.
exposure to a traumatic event
48. We must consider whether the evidence as to Mr Berry's experiences allows him to satisfy criterion A(1) and (2) of the diagnostic criteria in DSM IV. He relied on the occasion during his operational service referred to in his statement of 3 November 1999 when he claimed the Melbourne was called to Action Stations. He said he felt intense fear while at Action Stations in an ammunition hold during an exercise. In evidence he identified the ammunition hold as the Bofors magazine. He was cross-examined at considerable length about the incident and retracted some of his claims for example that he had been locked into the hold and that it was totally dark, but the essence of the incident remained.
49. In his evidence-in-chief Mr Berry said that the incident occurred (trans. pp22-23):
Sometime in October. I was still on light duties through my date [sic ? should it be back], so I don't know the exact date.
Well, in any event, was it in that period between 21 September '56 and 12 October '56? Yes . . . going off to Hong Kong.
50. According to the evidence of Commodore Mulcare and Rear Admiral Griffiths, Mr Berry may have been somewhat confused as to the difference between "Action Stations" and "Defence Stations". Mr Berry said (trans. p23):
Well, action stations as - when we - like, you are always practising action stations - we call them defence stations in case you need to be called, too.
Are you saying you always practise it?---Well, we practised going up there, up to Malaya and - like, we would call them defence stations, because there's no action at the time. Action stations really is when you - well, it's the real McCoy, as far as we are concerned, and it happened to me once where I was sent down into the ammunition magazine.
He added as to the particular incident (trans. p24):
Well, it was called to action stations.
Where abouts where you at that time?---I don't know. It was in travelling mode.
You were in Malayan waters, were you?---Yes.
And it was called action stations and we all assembled, which you have got to assemble and, like, with cooks, stewards or miscellaneous, as we called the branch, as cooks, stewards, officers cooks, writers and things like that they are used for the action stations. They are not used for firing guns or anything like that. Now, on this particular day I reported to the action station, my action station, and I was told by the petty officer who was in charge there, inside you go. Inside the magazine hold.
. . .
Yes, after you went in there, did something happen. Was the door left open or closed - - -?---No, it was locked. The hatch was locked from the top. I was told to wait for further orders.
51. In cross-examination Mr Berry identified his Action Station as the Bofors magazine. He maintained that he had not entered the magazine during any of the earlier exercises practising Defence or Action Stations. He said he had previously assembled at the top deck at the entry to the magazine but had not been told to enter it until the particular incident. There is a question on what day that may have occurred. The only entry in the Ship's log showing a call to Action Stations was on 27 September 1956, but Mr Berry's evidence was that the incident occurred after leaving Singapore, on the way to Hong Kong, and after he had injured his back, which he said occurred when he fell down a ladder on the day the ship left Singapore (trans. pp 22, 23, 79 and 137). The Ship's log shows that to have been on 2 October 1956.
52. Mr Berry said on the day in question he was directed by the Petty Officer to go inside the magazine and wait. He said he was on his own in the magazine and the only lighting was an emergency light. He said (trans. p25) "I just sat there . . . , I was in fear in terrible fear, I was in terrible fear." He explained the reason for his fear (trans. p25)
I was in danger something was going to happen. I mean, I was in a dangerous spot. When you have got ammunition all around you, well, you tend to . . .
At the risk of asking an obvious question, if a shell hit the spot where you were, what would you expect to be the end result?---I don't think you would have to hit it. Just a near miss and it would be . . . . from here to kingdom come.]
53. Mr Berry described his reaction to his fear (trans. pp25-26):
I froze. I mean, I sweated. I hyperventilated. I was in a bad way and I don't know how long I was there. I don't know, it might have been half an hour, it might have been an hour. I don't know how long it was. I can't tell you that, because I'd be telling you lies.
Yes and as you were hyperventilating, that entailed difficulties with your breathing did it?---Yes.
What sort of difficulties?---Well, it is - hyperventilating is - you think you are choking, type of thing. You just can't get your breath.
And were you remaining calm and still or how were you remaining?---I was still, but I was agitated. Not knowing, as I said, I don't know what was going on outside and that's when - apart from that, the Melbourne, in those days, had no air-conditioning and it was that hot - it was hot even up top, but down below in these - in the ammunition . . . . it was really, really, really hot.
Were you shaking or trembling?---Yes.
What about perspiration?---Terrible.
54. Mr Berry said there was a block and tackle in the hold for sending ammunition up to the guns, but he was not required to send any ammunition up and he did not have to use the block and tackle. He said after a time the hold was opened and he was let out and told it was over. He said when he came out he was wet through and sweating. A Petty Officer who saw the state he was in put his arm around him and said, "you are in a bad state, take this cigarette it might help calm your nerves". Mr Berry said he went back to the Mess and he can not remember for sure what happened after that. He said that to him the incident was life threatening. He was agitated about it, but afterwards he only told one person how he had felt.
55. Mr Hanks asked Mr Berry to describe the Bofors magazine. He said it was a large area about as big as a Tribunal hearing room, with boxes of ammunition stacked one on top of each other. He estimated that the boxes would have been 14 inches high, 18 inches wide and two feet deep. He said he did not attempt to lift any of the boxes, but he thought they contained ammunition for the Bofors guns. He maintained that he was on his own in the Bofors magazine and did not seem to appreciate the unsatisfactory aspect of sending one sailor, let alone one known to be on light duties for a back injury, to handle boxes of ammunition required in an emergency. Commodore Mulcare in evidence said that an ammunition box of the type stored in the Bofors magazine at the relevant time weighed 41.2 kilograms or about 85 pounds and that two people could carry them easily (trans. p.236).
56. Commodore Mulcare in his report of 15 September 2001 described Action Stations and Defence Stations as follows (R13):
7. At Action Stations a ship was at the First degree of Readiness with the 'First XI' in charge, all hands closed up, all positions fully manned and the ship ready for immediate action. First Aid and Damage Control parties were dispersed throughout the ship and the highest degree of watertight integrity was adopted. The Second Degree of Readiness, Action Stations Relaxed, could be adopted during a lull in an engagement or when action was less imminent, to allow a small proportion of hands away for a meal or a break.
8. The Third Degree of Readiness, with hands closed up at Defence Stations (or Defence Watches as it is sometimes described) was the normal wartime cruising state. Sensors and weapons systems were manned to provide a response to any threat and skeleton Damage control parties were in place. A lesser degree of watertight integrity was permissible, depending on circumstances, eg passageway doors could remain open, as could hatches to accommodation spaces below deck. The ship's company were usually in three watches (four hours on - eight hours off) although some weapons systems or areas such as the Operations Room could be in two watches (six hours on - six off) depending on circumstances. Defence Stations were flexible and could be, and were, varied depending on the degree and nature of the threat. Hands not closed up could work a normal routine.
9. The Fourth Degree of Readiness or Cruising Stations was in effect the normal peacetime cruising state.
57. In cross-examination, Mr Hanks asked Mr Berry to describe his previous experience of Defence Stations or Action Stations. Mr Berry said that when he had gone to the hatch giving entry to the Bofors magazine before, there had been about six people there, but he had not been told to enter the magazine. They had been told what to do; that included being told that smokers were to get rid of their cigarettes and lighters before going into the hold, and that a Petty Officer or gunner would call out through the hatch the order for ammunition. He said there was a call to Defence Stations at least twice on the trip over. But the incident he describes as terrifying was the only call to Action Station. That evidence raises questions as to why Mr Berry did not remember the call to Action Stations on 27 September 1956, as recorded in the ship's log, and as to what his response was on that occasion.
58. There were some difficulties with the evidence of Mr Berry as to the incident when he claimed he was traumatised by spending time alone in the Bofors magazine during a call to Action Stations. Some of the evidence casts doubt on whether it occurred at all. Other evidence suggests that Mr Berry's recollection may be faulty on some aspects of the incident. We do not find clear guidance in Budworth or Benjamin as to how we are to deal with the problems in Mr Berry's evidence when deciding whether or not he suffers from PTSD. Perhaps the incident did not occur, or perhaps, if it did occur it was rather different to the circumstances described by Mr Berry.
59. We have given consideration to those matters but have decided that, even accepting Mr Berry's account of being very frightened and not knowing what was happening while he was on his own in the Bofors magazine in response to a call to Action Stations, that event does not satisfy criterion A(1) of the diagnostic criteria for PTSD.
60. Whatever Mr Berry believed, the evidence establishes that the event during which Mr Berry was in the Bofors magazine was a practice call to Action Stations, which did not involve "actual or threatened death or serious injury, or a threat to the physical integrity" of Mr Berry or others.
61. The role of the FESR is set out in the Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75 ("the Review") (A11) and the report of Writeway Research Service dated 29 November 2000 (R2). The Review states (A11 pp3-2-3-3):
Primary role:
The primary role of the Strategic Reserve in accordance with the purposes of the South East Collective Defence Treaty, is to provide a deterrent to, and to be available at short notice to assist in countering further communist aggression in South-East Asia. Further the role it will take is to form part of the force for external defence of Malaya and Singapore.
The Strategic Reserve may, at the direction of the commander-in-Chief (Far East) be employed in defence operations in the event of armed attack against Malaya or Singapore. The Strategic Reserve or units thereof will not be otherwise committed for the use of force in its primary role without reference to the ANZAM Defence Committee except as specified.
Secondary role:
The secondary role of the Strategic Reserve is to assist in the maintenance of the security of Malay by participating in operations against communist terrorists.
Units of the Strategic Reserve may be employed in its secondary role to the extent such employment does not prejudice the readiness of the Strategic Reserve to perform its primary role.
The description in paragraph 6 of the Writeway Research report is similar but in an abbreviated form.
62. Rear-Admiral Griffiths was the Gunnery Officer in HMAS Melbourne while Mr Berry served in her during his period of operational service. He said in his statement, which he confirmed in evidence:
12. Our primary role during operation Albatross was to act as a deterrent and to be available to counter communist aggression in South East Asia.
12.1 We were deployed as part of the FESR. I understand that the information provided in paragraph 6 of the Writeway report of 29 November 2000 is an accurate description of the role of the FESR.
12.2 There was no war declared but the Reserve Force had to be prepared and ready, that was the purpose of the exercises and training so that we were in an efficient state. 1956 was the first time SEATO maritime exercises were conducted in the South China Seas. A number of ships were involved from other countries.
12.3 There was no feeling or expectation of being at risk, there was no immediate threat. We were a strategic reserve. There was no action in the area at the time. The Navy had destroyers and frigates on rotation in that area over a number of years.
63. Mr Hanks asked Rear Admiral Griffiths about the nature of the event relied on by Mr Berry at trans. pp274-5:
Now, as I understand it and I may be quite wrong, there was in fact no risk of anything happening at sea because the enemy didn't have any seagoing power and didn't have any planes, is that right or is that wrong?---You used the word "enemy," to the best of my knowledge there was no clearly defined enemy it was a general communist threat from Asia at the time. There was nobody advancing down the route and, in fact, there was certainly no naval ships at sea.
I think there was some mention of communist terrorists?---That was in Malaya.
So there wasn't any - I was wrong, they used the word "enemy" but there wasn't anybody likely to be attacking at sea or in the air, there were just these communist terrorists in Malaya, is that right or is that wrong?---That's right.
Right, and Mr Berry spoke quite a bit about his perception of risk when he was in the magazine and he had the idea that because the ammunition was all around him if the magazine took a hit or something like that he would be - well, he wouldn't be any longer, I think that was the impression he was giving. Was there any risk at all of the ship being hit by any ammunition?---No, not in the period we're talking about.
Was there any risk of one of those mistaken friendly fire sort of accidents? Was there any live ammunition being used by the aircraft?---No.
64. Rear-Admiral Griffiths also said that a call to Action Stations should be recorded in a ship's log, as does appear on 27 September 1956. He said, from his reading of the log, that the only other occasions that could have involved Action Stations were 25 September 1956 - "rapid open fire exercises" and 2 October 1956 "Anti aircraft Firings". Each of those firings was an exercise. On no occasion was there any enemy action.
65. If Mr Berry's evidence is accepted as accurately recounting his reaction to an event he perceived as traumatic and as involving actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, then his reaction may well have involved intense fear and helplessness as required by criterion A(2). However his perception that the event involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others, so as to satisfy criterion A(1), does not seem to have been accurate. We understand that the sailors may not have been as fully informed as the officers of the true state of affairs. Mr Berry may well have believed that the call to Action Stations involved "real McCoy" as he said (trans. p23).
66. In the Review at p2-3, Judge Mohr wrote:
In Repatriation Commission v Thompson, [(1988) 82 ALR 352] the Full Federal Court decision carried the matter a step further in stating that a 'perceived danger' had to be contemporaneous with an 'objective danger'.
The judgment in that case was clearly correct in defining the distinction between 'perceived' and 'objective' danger on the facts proved in that case. Although Thompson genuinely 'perceived' danger, on a review of the facts no danger of any sort existed. The facts clearly showed that no hostile forces capable of being a danger to him were within hundreds of kilometres of the incident in which he 'perceived' danger. In that case, there was plainly no 'objective danger'.
In other words, the danger he 'perceived' arose from his own fear that he was in danger, but this fear was a delusion in his mind. A serviceman incurs danger when he encounters danger, is in danger or is endangered. A serviceman incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger.
Thompson's case concerned a claim for service pension and thus involved a different test, but Judge Mohr's explanation does provide an explanation of the difference between a reasonably based (but incorrect) perception of danger, and the circumstances required to satisfy the diagnostic criterion of exposure to a traumatic event, where there must be "actual or threatened death or serious injury, or a threat to physical integrity".
67. Mr Berry relied on the Review as supporting his claim that he had been exposed to a "traumatic event". He referred the Tribunal to the passages in the Review which in his view had some bearing on the issues in this matter. We have had regard to those passages. There is reference at p3-16 to bombardment of shore positions and to the fact that the terrorists had no means of retaliation as they had no artillery. There is also reference to "Operation Awkward", which was carried out when ships were at anchor or alongside, but not in the waters in which HMAS Melbourne was at the relevant period but those incidents did not involve HMAS Melbourne. We have not found anything in the material before the Tribunal which supports the view that Mr Berry while serving in HMAS Melbourne between 21 September 1956 and 12 October 1956 was exposed to a traumatic event such as to satisfy criterion A(1) of the definition of PTSD in DSM IV. We note that Mr Charman described HMAS Melbourne as having been "in action", but he seemed to rely on the fact that the review had led to the award of an ASM and return from active service badge as entitling him to make that assertion (trans. p210).
68. We are reasonably satisfied, and also satisfied beyond reasonable doubt, on the basis of the evidence of Mr Berry, reports from Writeway Research Service with attachments (R2-R6), the reports and attachments and evidence of Commander Mulcare (R13-R15), the statement and evidence of Rear-Admiral Griffiths (R16), and HMAS Melbourne Ship's Log, that the event described by Mr Berry was not an event that, "involved actual or threatened death or serious injury, or a threat to the physical integrity of" Mr Berry, or others.
69. Thus we find on the balance of probabilities, that the symptoms from which Mr Berry suffers, according to Dr Chen, Dr Parkin, Dr Cole and Dr Walton, are not symptoms of PTSD. We find that Mr Berry does not suffer from PTSD.
generalised anxiety disorder
70. As we have found that Mr Berry does not suffer from PTSD, we must consider whether his symptoms are to be described as constituting generalised anxiety disorder, as diagnosed by Dr Walton.
71. It was Dr Walton's opinion that Mr Berry suffered from and met the SoP for generalised anxiety disorder. Mr Hanks said that the respondent conceded that Mr Berry does currently suffer from generalised anxiety disorder but not that it is war-caused (trans. p323). We find on Dr Walton's evidence, on the balance of probabilities, that Mr Berry has an anxiety condition properly diagnosed as generalised anxiety disorder. The next question is whether it is war-caused.
72. The parties did not refer to that condition in their Statements of Case, but it was referred to in Dr Walton's report (R17) and during the hearing. The SoP referred to by Dr Walton was Instrument No. 48 of 1994. That SoP has now been revoked and replaced by Instrument No. 1 of 2000 relating to Anxiety Disorder.
73. Two recent decisions of the Full Court of the Federal Court, Repatriation Commission v Gorton [2001] FCA 1194 and Repatriation Commission v Williams [2001] FCA 1195, have established that the general rule is that a SoP in force at the date of hearing is to be applied. But the Full Court recognised that Keely v Repatriation Commission (1999) 56 ALD 455, which was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532, establishes that a veteran has an accrued right to rely on the SoP which was in force when the matter was before the Commission, if it is more beneficial for him. Thus Mr Berry is entitled to rely on Instrument No. 48 of 1994 as amended, if it is more beneficial to him.
74. Instrument No. 48 of 1994 recognised as one factor that must as a minimum exist before it could be said that a reasonable hypothesis had been raised connecting generalised anxiety disorder with the circumstances of a veteran's service:
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder.
The term "stressful event" was defined as follows:
"stressful event" means an occurrence which evokes feelings of stress.
75. Instrument No. 1 of 2000 which revoked Instrument No. 48 of 1994 also covers generalised anxiety disorder. The equivalent factor in that SoP is factor (a)(ii):
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.
A "severe psychosocial stressor" is defined as follows:
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
76. The later SoP Instrument No. 1 of 2000 does appear to be more difficult for Mr Berry to satisfy, by reason of its requirement of "a severe psychosocial stressor" rather than simply a "stressful event". Thus, applying Gorton he is entitled to rely on SoP Instrument No. 48 of 1994.
77. Applying the well known steps explained by the Full Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206, the Tribunal must first consider whether the material before it points to a hypothesis connecting Mr Berry's generalised anxiety disorder with the circumstances of his operational service. Mr Berry's evidence does point to that condition resulting from the stressful event he claims to have experienced in the magazine.
78. As there is a SoP in force in respect of generalised anxiety disorder the Tribunal must form an opinion as to whether or not the hypothesis is a reasonable one. It will be reasonable if the hypothesis fits the template in the SoP. The relevant factor in Instrument No. 48 of 1994 as set out in paragraph 74 above provides:
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder.
79. Mr Berry's evidence does point to him experiencing "an occurrence which evoke[d] feelings of stress", when he was required to take up his Action Station in the Bofors magazine. But, unless the stressful event Mr Berry experienced in September or October 1956 was experienced "not more than two years before the clinical onset of generalised anxiety disorder" the hypothesis will not fit the template in the SoP and thus will not be reasonable.
80. To consider that issue it is necessary to refer to the evidence as to the clinical onset of Mr Berry's anxiety condition. Was the clinical onset of generalised anxiety disorder not more than two years after October 1956?
81. Mr Berry was not discharged from the Navy until 28 May 1960. He was discharged when his period of engagement expired. The service medical records (T docs pp5-50) make no reference to Mr Berry having reported any anxiety symptoms during service. There is no mention of any anxiety condition or symptoms on his discharge medical (T4 pp53-54).
82. Nor did Mr Berry produce any medical records indicating that he suffered anxiety symptoms shortly after his discharge. The clinical notes before the Tribunal do not support the assertion that Mr Berry had an anxiety condition from the time of his service. Dr Joshua (R11), who treated Mr Berry from May 1968, first recorded anxiety symptoms on a date which is illegible in 1972. At that stage he wrote:
nervous - pretty nervy for the last few weeks easily upset go off quite a bit. Nearly jumped out of driver's seat. Bit of pressure at work - applied for another job Sunday afternoon shifting factory to Moorabbin. Goes off fairly easy. Wife has v bad temper upsets him at times never was easily upset until 2 years ago. (emphasis added)
There is no mention in Dr Joshua's notes of the stress or nervy symptoms going back to service, nor of them being related to an incident in a magazine.
83. Exhibit R11, Dr Joshua's records, contains a report dated 6 September 1979 from Mr Barnes, a surgeon, referring to Mr Berry as "a very tense man". That exhibit also contains a report from Mr Lenaghan, a surgeon, dated 15 March 1989, which states that some stress was related to renal surgery and that Mr Berry had two "nervous breakdowns" subsequent to that surgery which was performed in April 1986.
84. Dr Barbagello, on 3 May 1993 (R10), noted that Mr Berry reported two years of intermittent episodes of tiredness and fatigue and that he denied stressors or depressive symptoms. On 26 July 1993 Dr Barbagello's note reads (R10):
Sent home from work had awful colour - pallid
prev. noted to look awful, vague sx [symptoms]
of tiredness, stress
Disturbed sleep pattern, but feels tired a lot and goes to bed early - 8pm
Often feels butterflys, churning in stomach
Often focuses on minor bodily sx and functions and magnifies them
Was feeling panicky this am
Work security in question - will have hrs cut by: 30 Hrs/fortnight
Best friend had AMI [acute myocardial infarction] 3/7 ?
feels vulnerable; "Nerves" since renal surgery
discussion of sx of Anxiety + panic
Not interested in psychol. intervention
not psychologically minded; issues of control +++
for trial Xanax
Dr Barbagello's records include a note on Bulleen Central Clinic letterhead stating that the onset of Mr Berry's "Anxiety Disorder/Panic/Agoraphobia" was in 1986.
85. Mr Berry's claim to have "Anxiety" accepted as war-caused (T docs p57) stated that he first became aware of the disability in 1986. That is also the date of onset of anxiety disorder given at pp23 and 28 of Mr Berry's Centrelink file (R18).
86. There is no material before the Tribunal pointing to the clinical onset of any anxiety disorder, as required by the relevant SoP, not more than two years after Mr Berry's operational service, during which he describes having experienced a stressful event. Mr O'Brien, in his closing address pointed out that Dr Joshua's clinical notes, (R11), on the first page in the "past history" contain a reference to an ulcer some time between 1946 and the car accident in 1957. No ulcer is referred to in the service entry or discharge medical examination. There does not seem to be any mention of an ulcer in the service medical records contained in the T documents. Mr Berry said that his ulcer was in 1964 or 1965. It was not referred to by the medical witnesses during the hearing. The evidence as to taking up drinking and smoking during service after the event, as described by Mr Berry, and an ulcer at some time after service do not raise or point to the "clinical onset" of generalised anxiety disorder within two years after operational service. Weinberg J, in Gosewinckel at pp 704-705 rejected the view of the Tribunal that there could be a "clinical onset" of a disease before it satisfied all the diagnostic criteria of the disease in the SoP. There was no evidence raising or pointing to the presence of all the diagnostic criteria for generalised anxiety disorder, as set out in DSM IV (or the SoP), not more than two years after the stressful event in the Bofors magazine in September or October 1956.
87. The hypothesis connecting Mr Berry's generalised anxiety disorder with the circumstances of his operational service fails to fit within the template in the relevant SoP, and must therefore "be deemed not to be reasonable". The claim in respect of generalised anxiety disorder must fail.
panic disorder
88. Counsel did not address the diagnostic criteria for panic disorder as a separate entity from PTSD. No psychiatrist has diagnosed Mr Berry as suffering from panic disorder with agoraphobia as a disorder separate to PTSD. The diagnostic criteria for that condition were not before the Tribunal. We can not find on the evidence that Mr Berry suffers from panic disorder or from panic disorder with agoraphobia.
psychoactive substance abuse or dependence
89. Once again there was no evidence that Mr Berry satisfies the definitions of alcohol dependence or alcohol abuse as set out in DSM IV. Dr Cole did diagnose Mr Berry as suffering from chronic alcohol dependency. The only basis for that diagnosis provided in Dr Cole's report (A1 p3) was as follows:
He did not drink before he joined the Navy but started after recruit school. By the time of his discharge he was a heavy drinker and still drank anything from six to twenty-four cans of light of day.
In his evidence Dr Cole said that he considers that anybody who constantly drinks from 6 to 24 cans of light ale a day is alcohol dependent in the ordinary sense of the word (trans. p171). The evidence does not in fact point to Mr Berry "constantly" drinking at the higher level of his estimate, that seems rather to be a rare occurrence (R7 para 7.6).
90. Mr Berry's evidence as to the onset of his heavy alcohol consumption was as follows (trans. p30-31):
Well, when I first joined the navy, in recruit school, I wasn't - I joined the navy when I was 17 and by the time I finished my training, I was over the age of 18 and would go ashore with the service sailors and started drinking. But I wasn't a heavy drinker at all. I was only, really, a moderate drinker, who even until - I mean . . . stationed in England. I was over there in '55/56. I was still a moderate drinker. I wouldn't take - they used to have a rum ration there. The royal Navy used to have a rum ration, but I wouldn't touch it. I wouldn't touch the rum ration and you also used to have a cigarette ration, which I wouldn't touch. I would take it and give it to one of my mates who was a smoker or who was a drinker.
Yes. Well, following that incident [ie the incident in the Bofers magazine] did your drinking consumption increase?---Terrible. In fact, when you was at sea or we would sail out from Singapore, at sea - you was allowed one bottle of beer every second day. By the time we reached Singapore, I really got stuck into it.
When was that approximately?---That would be approximately October '56.
Yes. And, what, did you have shore leave there, did you?---R and R.
And what did you do during your shore leave?---Got drunk.
In cross-examination, Mr Berry said he had been mistaken in saying he got drunk in Singapore. He had meant to say that occurred in Hong Kong.
91. Mr Berry said that he did not get involved in anti-social behaviour by reason of his drinking during service, but he was drinking "a lot" by the time of his discharge in 1960. He explained (trans. p31):
Well, I would consume a fair . . . because at that stage, at '60, I was at Albatross, but even before then, before I went to - I was in transit at HMAS Penguin. There was a transit depot in Sydney awaiting the draft to go to Canberra and that's when I had the motor car accident and I didn't get there. But whilst in transit there, the . . . and there was very little job you had to do, because most of the officers used to go home for their tea at night or whatever and you would have all the day to go to the . . . and I used to drink a lot with the submariners there.
Are you able to talk about some sort of daily average by your discharge?---Well . . . Sydney, it used to be schooners, the big ones. It could be anything.
Are you saying you did not have enough to do while you were at HMAS Penguin, so you would just - - -?---Yes, like after lunchtime, the officers would then go about their job, but very rarely would anyone stay on board the depot. They would go off to - may be if they lived there in Sydney, I don't know. They would never stay - very rarely would they stay for dinner of a night time.
92. Mr Hanks suggested to Mr Berry that the only reference in the medical notes to Mr Berry seeking treatment for excessive alcohol intake was on 30 May 1996 when he saw Dr Barbagello and reported that he was suffering a hangover as a result of his 60th birthday celebrations (trans. p144). Mr Berry did not agree that he had sought treatment that day. He said (trans. p145):
I drink every day ;and have done so for a long - - -?---And I drink light beer now, I don't drink the heavy stuff because of my stomach.
No, but although you do it every day and you have done it for a long, long time you have never done it to the extent where it would interfere with your functioning, with your ability to get on with your life have you?---No
93. In re-examination Mr Berry said that he would say he is heavily dependent on alcohol. He said he usually has about 6 stubbies of light beer but (trans. p158):
[O]n a bad day it could be up to a slab of light beer, not heavy beer.
94. The history obtained by Dr Byrne (R7) contains a detailed account of Mr Berry's drinking habit during and after service:
4.16 As for what made it frightening he said "what we were told before leaving - there were riots in South East asia - some of our blokes got in the riot and were hit over the head - at one point we had divers checking for mines on the boat". After returning to shore Mr Berry had two to three days of R&R where he "got drunk and got drunk again, though I didn't get involved with the girls - I was drinking with mates but sensible enough to keep away from the dance halls because I dreaded getting a disease". He did not have any difficulty with his drinking at this time and returned to the ship on schedule.
4.17 He reported that during the R&R he also "did a lot of shopping and I tried to act normal - I had a laugh and a joke".
4.18 For the rest of the journey the incident was "on my mind all the time - I started to think about the episode and I woke in a sweat".
4.19 He reported that later in his service he got into fights "though I never started one - a bloke picked on me in WA - I didn't want to be threatened - I dropped him because he threatened me again". He reports being in three or four more when drinking and "dressed in civvies". No one was seriously hurt and he never had any disciplinary problems related to drinking.
4.20 Asked about his next years of service Mr Berry described his various postings and noted the serious motor car accident in August 1957 which led to his being in hospital for thirteen months with multiple injuries. It happened late at night and he was returning as a pedestrian from visiting a mate where he had been drinking - "I had a few but I wasn't totally drunk". He was hit by a "kid driving a van with no lights on". The Navy provided a solicitor and he was ultimately awarded compensation.
. . . .
5.1 Asked about his work after discharge Mr Berry said "I got out and was drinking heavy and smoking". I then learned he was employed at the Post Office for three weeks after which he was employed as a machine operator at a tobacco factory in Collingwood for the next eleven years (1971). The company was then purchased by Phillip Morris and he worked with them until 1988.
. . .
7.1 Mr Berry reported that he never drank alcohol before joining the Navy. His drinking was never a problem "until that incident". He reported drinking about one bottle of beer every second day both before and after the incident while on ship. However, while on shore his drinking increased, and he reported getting drunk - "pretty heavy" in Hong Kong though he noted that "I always got up and did my job - I was never late".
7.2 He reported his drinking getting increasingly heavier until discharge in 1960.
7.3 As a civilian he would routinely have a few beers after work, and on weekends I'd really get stuck into it with a few bottles". On enquiry he reported drinking six large bottles of beer over a weekend.
7.4 Asked whether his wife complained about his drinking he commented "she noticed a change in me - we had our first kid - there was good money in the tobacco industry - she never complained that much because I didn't lash out - I never missed work - I'd have five pots a day at lunch, five days a week which was common". Asked whether his wife complained about the money spent on alcohol, he described having a war-housing loan, having received compensation from the motor car accident and finally concluded "my wife never complained and I was still a good father".
7.5 It proved impossible to obtain a clear narrative of how his drinking changed except to note Mr Berry's report that his drinking got worse as he got older and that it was at its height when employed at Phillip Morris at which time he would drink six bottles of beer a day.
7.6 In 1995 he had stomach problems after which he began using light beer. He now drinks beer most days "and some days up to a slab". Asked when this last happened he said "twelve months ago". Now he drinks on average "four large mid-necks per day and more on the weekend". On specific enquiry Mr Berry denied ever being charged with .05 driving, ever missing work because of drinking, ever being disciplined because of drinking at work, or ever being involved in a motor car accident while drunk.
7.7 Asked again about his wife he then reported that she did complain about his drinking and on one occasion left him for two to three days and went to her daughter's house "about drinking and me going off the planet." (In what way?). "The anxiety attacks - she knew I'd hyperventilate but wouldn't talk about it - she saw the doctor and then she understood more. Now when she knows I'm in these moods she'll leave me alone".
7.8 Asked whether he ever tried to stop drinking Mr Berry said he hasn't "because I enjoy a drink". He did shift from full strength beer to light beer. Asked whether anyone has ever told him to stop drinking he said "my wife said I drink too much".
7.9 Asked about the worst difficulties he has had due to drinking, Mr Berry said that on one occasion in 1957 he "lost a day" by which I assume he means he had an alcoholic black out. Asked the second most serious difficulty he had, he reported getting drunk with a sailor. Mr Berry fell back and hit a wall. The other man fell through a window and landed two storeys below. The worst difficulty he has had with drinking since leaving the Navy is his problems with an ulcerated oesophagus.
95. Although Dr Byrne reported that Mr Berry told him that, "in 1995 he had stomach problems after which he began using light beer", Mr Berry does not seem to have referred to his alcohol consumption in the history he gave Mr Marshall, who provided a report (A2) dated 5 January 2001. Mr Marshall provided an opinion linking Mr Berry's gastro oesophageal reflux disease with service related smoking, but he made no mention of Mr Berry's alcohol consumption.
96. Dr Walton, in his report (R17 p2), noted as to alcohol consumption:
Mr Berry stated that he commenced alcohol intake when he joined the Navy in a context of "chasing skirt". He seems to have confined himself to the one bottle of beer which was issued every second day at that stage. However, he reports an increase in his alcohol intake following the ammunition hold incident and that this prompted him to take up smoking.
Having been diagnosed as suffering from emphysema and oesophagitis, Mr. Berry managed to cease smoking some seven or eight years ago. He also described some moderation in his alcohol intake, he confining himself to drinking light beer only, but there is an ongoing pattern of consumption of between six and 24 stubbies daily.
I attempted to elicit a history of possible withdrawal symptoms but Mr. Berry stated "I'd never been without".
Dr Walton wrote as to alcohol consumption (R17 p5):
The veteran also provides a history of somewhat excessive alcohol consumption but he has been able to moderate his alcohol intake. I obtained no convincing history of symptoms of tolerance or withdrawal nor any adverse social or other impact because of the alcohol intake. I am disinclined to make an independent diagnosis of alcohol abuse or alcohol dependency, rather this man's somewhat excessive alcohol consumption over the years very likely has been an attempt to quell underlying anxiety and thus I would see it as part and parcel of the anxiety condition.
Dr Walton wrote that in his opinion a diagnosis of substance abuse could be excluded.
97. In his evidence Dr Walton said that Mr Berry certainly gave a history of excessive alcohol consumption, but he said he could not establish that there were signs and symptoms of dependency "as strictly defined", which we understand to be a reference to the definition in the relevant SoP (trans. p299). Mr O'Brien asked Dr Walton whether drinking 6-24 small cans of light ale a day does not indicate "an alcohol dependency situation". Dr Walton replied (trans. p299):
No. It may be medically injurious, it may be alcohol abuse and commonly would be associated with dependency but certainly not necessarily.
98. The hearing was conducted before Benjamin was delivered by the Full Court, on the basis that diagnosis of alcohol abuse or alcohol dependence would be in accordance with the relevant SoP. Instrument No. 76 of 1998 has detailed definitions of both alcohol dependence and alcohol abuse. The Full Court has made it clear that diagnosis by reference to the SoP is impermissible, but in regard to alcohol disorders there is no close similarity between the diagnostic criteria in DSM IV and those in the relevant SoP Instrument No. 76 of 1998, such as enabled the Tribunal to refer to the DSM IV criteria for PTSD, although reference during the hearing had actually been to the diagnostic criteria in the SoP.
99. In this matter we must rely on the evidence and reports of Dr Cole and Dr Walton and Dr Byrne. Only Dr Cole diagnosed an alcohol disorder and Dr Walton and Dr Byrne were of the opinion that no such diagnosis was appropriate. The evidence did not satisfy us that as at 13 May 1997, when Mr Berry had reduced his alcohol consumption by changing to light ale and usually drank six stubbies a day or thereabouts, he should be diagnosed as suffering an alcohol disorder. We prefer the opinions of Dr Walton and Dr Byrne on this issue to that of Dr Cole. We do not find that Mr Berry suffers from an alcohol related disorder.
100. Dr Byrne did not make a diagnosis of alcohol dependence or alcohol abuse. He wrote that Mr Berry's account of getting drunk when on leave was "characteristic of many sailors and does not by itself represent any psychological maladjustment" (R7 paragraph 16.2.4). Dr Cole made a diagnosis of alcohol dependence, but without reference to any diagnostic criteria. Dr Walton in evidence said it was possible that Mr Berry's current drinking could show alcohol dependence, but he did not give that as his opinion.
101. We have concluded that Mr Berry's drinking pattern from 13 May 1997, being the earliest date for which pension is payable in respect of service with the FESR, does not attract a diagnosis of alcohol dependency or alcohol abuse. Mr Berry said he had changed to light beer because of stomach problems in 1995 or 1992 (See paragraph 108 of these reasons). These stomach problems occurred prior to 13 May 1997. Since reducing his usual intake to 6 stubbies of light beer, drinking up to 24 stubbies on a bad day, Mr Berry seems quite comfortable with his alcohol intake. We prefer the evidence of Dr Walton and Dr Byrne on this issue to that of Dr Cole who seemed somewhat glib in explaining his diagnosis. We do not find that Mr Berry suffers from an alcohol related disorder.
gastro-oesophageal reflux disease
102. There is no challenge to the diagnosis of gastro-oesophageal reflux disease. It has been confirmed by Mr Marshall. In his report of 5 January 2001 (A2 pp1-2) he wrote:
I note that he has been rejected by the Board in terms of his gastro oesophageal reflux disease and there is of course nothing to find on examination which will give us any information about his problem since reflux is purely a question of symptomatology and diagnostic endoscopy. The relevant matter relates to his smoking habits. Mr Berry told me that he took up smoking while he was in the Royal Australian Navy and that he smoked ten cigarettes a day increasing to twenty cigarettes a day over the period from 1956 when he began until 1960. When he was demobilised in 1960 he had become a heavy smoker (and was also suffering from post traumatic stress disorder, which of course made it more likely that he would find it difficult to give up smoking). He said in fact that he went on smoking and ultimately was smoking ninety cigarettes per day (!). He was working in fact for a tobacco company for 28 years from 1960 until 1988 (one might comment that one could scarcely think of a less desirable occupation for a returned serviceman).
Ultimately he developed reflux disease and was endoscoped in the early 90's and put onto permanent medication, but he not only suffered from reflux but also from emphysema which is another tobacco related problem. He finally gave up smoking in 1993, but by then of course the damage was done.
The endoscopy report from Heidelberg makes it perfectly clear that he has a small hiatus hernia and ulcerative oesophagitis, together with distal gastritis and he has been given H2 blockers as medication.
I must say that I find it very difficult to understand why his application for recognition of his reflux disorder as work related was rejected. It states clearly in the Guidelines that according to Instrument No. 121 of 1995, a reasonable hypothesis has been raised connecting gastro oesophageal reflux disease with the circumstances of service, if the serviceman had been: (j) smoking cigarettes or other tobacco products as an addition before and until the clinical onset of gastro oesophageal reflux disease; or (m) smoking cigarettes or other tobacco products as an addition before and at the time of clinical worsening of gasto oesophageal disease.
The report relating to cigarette smoking supplied by Mr Berry makes it perfectly clear that he was smoking throughout his service for four years, that he started while he was in the Navy and that he continued after he left the Navy having become addicted during his service. Under those circumstances I cannot imagine a more clear illustration of the point made in the statement of principles.
If indeed it is accepted that his cigarette smoking was work related and that this constitutes the necessary link to make his reflux disease accepted, it follows that according to Table 6.1.4 in Chapter 6 gastrointestinal impairment in the Guide to the Assessment of Rates of Veterans Pensions, that he should be rated as FIVE. This category implies "Reflux without without oesophagitis frequent minor symptoms and necessitating frequent use of antacids or use of H2 receptor antagonist medication". This of course is exactly the situation which Mr Berry lives under.
103. Having accepted the diagnosis of Mr Marshall, and the raising of a smoking related hypothesis by him, it is necessary to turn to the relevant SoP to consider whether the hypothesis is reasonable. The relevant SoPs for gastro-oesophageal reflux disease are Instrument No. 121 of 1995, which was in force when the primary decision was made on 10 June 1999, and Instrument No. 62 of 1999 which was in force at the date of hearing.
104. Mr O'Brien did not address the Tribunal as to the terms of those SoPs, or as to which was more beneficial to Mr Berry. The relevant factor in SoP Instrument No. 121 of 1995 is as follows:
1. Being of the view that there is sound medical-scientific evidence that indicates that gastro-oesophageal reflux disease and death from gastro-oesophageal reflux disease can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of that service, are:
. . .
(j) smoking cigarettes or other tobacco products as an addiction before, and until the clinical onset of gastro-oesophageal reflux disease;
. . .
Clause 2 provides:
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(t) must be related to any service rendered by a person.
In the later SoP, Instrument No. 62 of 1999, the relevant smoking related factor is (f) which provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of a person's relevant service are:
. . .
(f) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical onset of gastro-oesophageal reflux disease; or
. . .
That SoP provides in clause 4 "subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person". Clause 8 defines "relevant service" as follows:
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
105. In accordance with the Full Court decision in Gorton, the SoP to be applied is that in force as at the date of hearing, namely, Instrument No. 62 of 1999. As Mr O'Brien did not contend that Instrument No. 121 of 1995 was more beneficial, and as it does not appear to be more beneficial, we will confine our consideration to Instrument No. 62 of 1999. The reference to "any service" in clause 2 of the earlier SoP does not mean that Mr Berry would be entitled to rely on the whole of his Naval service. See Re Carroll and Repatriation Commission [2000] AATA 180, paragraph 27 and Repatriation Commission v Linton [2001] FMACA 124, paragraphs 10-12.
106. Unfortunately Mr Marshall seems to have been unaware of the fact that it is only three weeks of service, from 21 September 1956 to 12 October 1956, which are "relevant service", and relevant to the application to have gastro-oesophageal reflux disease accepted as a war-caused disease. In order to satisfy factor (f) and clause 4 of the relevant SoP, it is necessary for Mr Berry to show either that he took up smoking because of the circumstances of those three weeks of operational service, or that he had an increase in smoking habit of at least five cigarettes per day related to his operational service.
107. On the evidence there is no dispute that Mr Berry smoked the necessary amount for the required period. The only question is whether that smoking was related to his operational service. Mr Berry related that he had his first cigarette on the day of the incident when his Action Station was in the Bofors magazine. He described his time in the Bofors magazine. Mr O'Brien then asked him what happened when the hatch cover was opened. He replied (trans. p27):
As I said, I was wet through and I was shaking. There was a petty officer there. I don't know his name. He seen the state I was in and he - because I was only young and he . . . and he put his arms around me to pacify me, you know, and just calm me down.
What did he say to you?---Well, he said you are in a bad state, you know, and he said - that's what he - he offered me a cigarette to help me - he reckoned it might help. I suppose it did . . .
And you had the cigarette?---Yes.
Had you ever smoked a cigarette prior to this?---No.
Never?---No.
He continued (trans. p29):
Well, I had the first cigarette and, in fact - actually, I suppose, I spluttered and whatever, but it did help me, as far as I am concerned. It just helped calm me down a little bit and from there on I started taking up smoking. Of course, cigarettes on those days on a ship are duty free and they were very cheap.
So did you become a regular smoker from that point onwards?---Yes.
And what was your average consumption on a daily basis of cigarettes by the time of your discharge?---20, 30 or something. 20, 30. a packet in those days.
108. Mr Berry said that prior to the incident in the magazine he would not touch his cigarette ration. He said he gave it to one of his mates who was a smoker. He said that was the case even while he was stationed in England in 1955/56. It was during that posting that he saw the dead and charred bodies of a Royal Australian Navy pilot and observer after their Sea Venom plane had crashed into a caravan park in Somerset. According to Mr Berry that experience did not cause him to take up smoking as the later magazine incident did. Mr Berry said that he smoked until 1992 when he went from 90 a day to zero in three weeks due to his stomach troubles.
109. Having found that Mr Berry does suffer from gastro-oesophageal reflux disease, it is necessary for the Tribunal to apply the steps set out in Deledio.
110. As to the first step, Mr Berry's account of his smoking history, together with Mr Marshall's report, do point to a hypothesis connecting the disease with the circumstances of Mr Berry's operational service.
111. As to the second and third steps, there is a SoP, Instrument No. 62 of 1999. The hypothesis raised in the material before the Tribunal will be reasonable if it "fits" the template in the SoP. Mr Berry's evidence does raise or point to him taking up smoking as a result of the Bofors magazine incident and quickly increasing his consumption to 10 and then 20 or 30 a day and maintaining a very substantial smoking habit until after he developed his gastro-oesophageal reflux disease or "stomach troubles".
112. Thus s 120(3) of the Act is satisfied. The Tribunal must proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the disease of gastro-oesophageal reflux disease is not war-caused. It would only make such a finding if it were satisfied beyond reasonable doubt that there was no sufficient ground for determining that the gastro-oesophageal reflux disease was war-caused. It is only at this stage that we are required to make findings of fact on the material before the Tribunal.
113. Quite significant questions of fact do arise as to whether the incident in the magazine, or something similar, ever occurred.
114. The respondent lodged six historical reports with attachments challenging various aspects of the accounts of Mr Berry's service given by him to medical practitioners and to the VRB. It is only the claimed incident in the Bofors magazine which is relevant to this Tribunal. Essentially the attack on Mr Berry's account of the incident relies on:
(i) the fact that no call to Action Stations fitting in with Mr Berry's suggested time frame is recorded in the ship's log, and the evidence that such a call should be recorded in a ship's log;
(ii) the assertion that the account as given by Mr Berry is inherently improbable:
(a) Why would one steward alone be sent to an Action Station in a magazine where the size of the ammunition boxes in that magazine was such as to require two men to handle them using a block and tackle (R13 paragraphs 10 and 14 under the heading Magazines, Hatches, Ammunition)?
(b) Why would Mr Berry not have been trained in the duties required of him if his Action Station was in the Bofors magazine? What was he doing at the time of the call to Action Stations on 27 September 1956?
(c) If, as Mr Berry said in cross-examination, the incident occurred after leaving Singapore, Mr Berry on his evidence was on light duties after having fallen down a ladder while carrying a carton of beer on 2 October 1956, the day of departure from Singapore. If his Petty Officer knew of that injury it would seem to be unlikely that Mr Berry would have been sent alone to perform the lifting duties required of those whose Action Station was in the Bofors magazine.
115. Those questions raise some doubt about the accuracy of Mr Berry's recollection and of his evidence. But, the test is whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Berry's incapacity does arise from a war-caused disease of gastro-oesophageal reflux disease. We must consider whether the evidence challenging Mr Berry's evidence and that of Mr Charman is sufficient to satisfy us beyond reasonable doubt that Mr Berry did not take up smoking in the circumstances he described.
116. There is no dispute about the fact that Mr Berry, as a ship's steward would have been allotted to an Action Station which could well have been in the Bofors magazine.
117. As to the lack of training claimed by Mr Berry, Rear-Admiral Griffiths, who was then the Gunnery Officer in HMAS Melbourne during the relevant period, in his statement (R16), said that he did not remember what drills were practised on either of HMAS Melbourne's two earlier voyages but that it was likely that exercises would have included Action and Defence Stations. He referred to one entry in the ship's log showing a call to Action Stations on 27 September 1956 and said he would have expected any call to Action Stations to be recorded in the ship's log. Rear Admiral Griffiths stated that usually three or four people would be assigned to each ammunition party under the direction of a Leading Seaman or Chief Petty Officer. He identified two other occasions when the nature of exercises recorded in the log indicated that firings took place so that ammunition supply parties and magazine crews could have been closed up, even without the ship going to Action Stations. Those were on 25 September and 2 October 1956. He said there could have been calls to Action Stations on those two occasions which are not recorded in the log books, but he would not have expected that.
118. Rear Admiral Griffiths confirmed the matters referred to in his statement and said that he did not think that the ship would have closed up to Action Stations after 2 October. He also said he could not understand the claim that Mr Berry was ever in the magazine by himself because a magazine crew consists of two or three people. He said as any call to Action Stations would have been a training exercise he would have expected it to be performed "in a correct fashion".
119. In cross-examination Rear Admiral Griffiths said he did not agree that it was possible that two months after Mr Berry joined the crew of HMAS Melbourne he would have been allotted to an Action Station not having been trained in it before. He also repeated that he did not believe that Mr Berry would at any stage have been left alone in the magazine. He said he found that not possible.
120. Rear Admiral Griffiths said there is no doubt that people can feel apprehensive when closed up in a compartment like a magazine. He said (trans. p276):
I think people have to realise that there are many places in a ship where you are closed up at action stations or where you work normally which are not necessarily pleasant and you go to the boiler-rooms and engine-rooms in the ship, to the machinery spaces, hot, humid, very unattractive to work in and if you are closed up in a compartment and you're not exactly in the picture of what's happening outside, there's no doubt about it that you can - you can feel quite apprehensive, I suppose, I would say.
He said that during his training Mr Berry would have been able to express his reaction if he suffered claustrophobia during a training exercise.
121. Commodore Mulcare who wrote two reports (R13 and R15) also gave evidence. He wrote that the veteran was probably closed up in the magazine during Action Stations, but he would not have been on his own. Commodore Mulcare served in Melbourne in 1957, which was shortly after the relevant period. He explained that the requirement to have people in the magazine was to shift ammunition (trans. p.236):
That required a number of people in a magazine. A number of people would have been in charge of a leading hand or possibly a petty officer and it would have been grossly improper and in my view very, very highly unlikely that a person who knew nothing about the magazine whatsoever would be put in there on his own and just left there.
Commodore Mulcare said that the boxes weighed 41.2 kilograms or about 85 pounds and that two people could carry them easily.
122. In cross-examination Commodore Mulcare conceded that it was possible that the ship was closed up at Action Stations without that being recorded in the ship's log. Commodore Mulcare said that he could not envisage an untrained person in a magazine on his own shifting boxes of ammunition around. He said ". . . things can always happen but that one strikes me as being highly unlikely" (trans. p.247).
123. Commodore Mulcare said that it is unlikely that a call to Action Stations would not be recorded in the ship's log because it is quite a significant event. He explained (trans. p252):
With action stations, the whole ship's company drops everything and the ship closes down and everybody turns to at their particular action station.
He also said that a call to Action Stations is certainly required to be recorded in a ship's log. He believed it would have been recorded each time and the fact that it is recorded on only one occasion, 27 September, indicates to him that it is unlikely that there was another call to Action Stations.
124. In both examination in chief and cross-examination Mr Berry said that it was his recollection that the call to Action Stations which he remembered occurred after HMAS Melbourne left Singapore on 2 October 1956. Mr Berry said (trans. p65) that the ship's complement had been called to Defence Stations on two occasions prior to that call to Action Stations.
125. The T documents include statements from Mr Berry and from another former steward in HMAS Melbourne, Mr Falconer (pp108-109) referring to an incident when Mr Berry slipped down a ladder landing on the base of his spine. That incident was claimed by Mr Berry to be the cause of his accepted back conditions. Mr Berry and Mr Falconer both stated that the fall down the ladder occurred while sailing out of Singapore. In evidence at this hearing Mr Berry said that after he fell down the access ladder, he went to the sick bay and was given ointment and disprins by his leading hand. He said he was unable to do any lifting at all. Mr Berry was quite clear in his evidence that the incident when he was required to enter and remain in the Bofors magazine on his own occurred after leaving Singapore. The ship's log (R13 (IV)) shows that it departed Singapore on 2 October 1956. According to the expert witnesses, Rear Admiral Griffith and Commodore Mulcare, the only occasions, other than 27 September, when the record indicates that there could have been a call to Action Stations are 25 September 1956 or 2 October 1956.
126. Thus, if Mr Berry is correct in his recollection of dates, and if the Action Stations incident occurred, it would have to have been on the very day when he injured his back. That seems to make the incident less likely. The ship's log shows that it set course leaving Singapore Roads at 10.30 am and that the Close Ranges firing exercise started at 16.52 and finished at 18.02. It is unlikely that Mr Berry would not remember the sequence if he injured his back and shortly thereafter had to take up his Action Station in the Bofors magazine, an incident which he says he found very traumatic.
127. Mr Berry relied on the statement (A8) and evidence of Mr Charman. The statement, so far as relevant, reads:
3. In 1956 we were on HMAS "Melbourne" and were involved in the Malayan Emergency as part of the Eastern Strategic Reserve. We were operational in September to October 1956 and again 1958 to 1960.
4. During action stations, a siren would go off and everyone had to quickly go to their stations and close the doors to make the ship watertight. Jack was about 5 or 6 decks below in the magazine. Action stations would last for 2 or 3 hours. There would be aircraft landing and catapoults [sic] going off and the ship would vibrate.
5. When Jack came back up on deck he looked shaken and apprehensive. I asked him what was wrong. He was in a bit of a trance and said he did not like being locked up below.
6. Later on when we were on leave in Hong Kong, I saw him in a bar and he was extremely drunk. He was also smoking. I was very surprised to see him drinking and smoking, and I believe the fear of being locked below decks in the magazine during actions stations caused his anxiety and was the reason for him commencing drinking and smoking.
128. Mr Charman said in his evidence that over the period of September to October 1956 there were calls to Action Stations quite a few times. He said he too had an Action Station down at 5-deck. He said he could remember one occasion when he saw Mr Berry coming back on deck. He said he was shocked to see him looking so shaken and apprehensive. He asked Mr Berry "how are you going now?" and he replied "don't feel so good" (trans, p.203). He said Mr Berry was a bit pale and did not look too happy and when he asked him what was wrong, Mr Berry just told him that he did not like being locked up down below. He said he would not know whether Mr Berry was locked up by himself because he himself never worked in a magazine.
129. Mr Charman said that when he saw Mr Berry two or three weeks later in a bar in Hong Kong he was shocked because he was drinking and smoking, and previous to that he had known him for nearly 18 months and Mr Berry did not smoke or drink. He said that Mr Berry use to give away his rum ration and also his cigarettes, and that Mr Berry had given him cigarettes while they were serving together in England.
130. When Mr Charman was asked when he noticed the biggest change in Mr Berry, he said it was in the Far East Strategic Reserve on the way to Malaya. When he was asked which incident he was referring to, he said the crash off the Melbourne and he explained that the pilots who were killed in that crash were pilots from their squadron. Mr O'Brien then put to him (trans. p208):
Well, now, you say that you observed this great change that came over Mr Berry after the action stations event, is that so?---That is correct.
131. Mr Charman agreed with what Mr O'Brien had put to him in a leading way, even though it was totally contradictory to what he had previously said. Later when Mr O'Brien asked him again what was the incident that brought about the major change, so far as Mr Berry was concerned, in his own observation, he replied "Well, it was definitely after he had been in action stations in the Malayan waters" (trans. p209). In cross-examination Mr Charman stuck to that answer, but rather than simply referring to the Action Stations incident, he said that the biggest change was actually off the coast of Malaya "after we'd been in action" (trans, p.210). Mr Hanks then tried to clarify why he claimed they had "been in action". Mr Charman said that the award of the return from active service medal indicated that they must have been in action when attached to the FESR between September and October 1956.
132. We are satisfied beyond reasonable doubt that Mr Berry was not required to respond to a call to Action Stations after 2 October 1956 in which he was alone in the Bofors magazine and after which he came up on deck so shaken that he was comforted by a Petty Officer who offered him his first cigarettes. The reasons why we are satisfied beyond reasonable doubt that the incident did not occur precisely as described by Mr Berry are:
(a) on his own evidence, from 2 October 1956 he was on light duties and could not lift anything. That makes it very unlikely that he would have been sent on his own to Action Stations in a magazine where he was required to handle boxes of ammunition weighing 42 kilograms;
(b) there is no recorded call to Action Stations after 27 September;
(c) call to Action Stations would have required two or three men in an ammunition crew in the Bofors magazine.
(d) the latest possible firing which could have required that there be a crew in the Bofors magazine was on 2 October 1956;
133. The illogicality and lack of compliance with proper procedures, required for the scenario described by Mr Berry to have taken place, are, in our view, so unlikely as to satisfy us beyond reasonable doubt that it did not occur precisely as described by Mr Berry. That however leaves a question whether on some occasion, most likely 27 September when a call to Action Stations is recorded, or perhaps 2 October, if Mr Berry did not suffer a back injury on that day, Mr Berry may have been required to take his place as part of the crew in a Bofors magazine. He could be mistaken as to exactly when an incident occurred, almost 50 years ago. If that did happen, he could well have been pale and shaken when coming up after a period of up to two or three hours closed up in a hot unpleasant compartment. Rear Admiral Griffiths described how frightening and unpleasant that can be when the crew do not know what is happening, or for how long they will be confined in the magazine.
134. We are not satisfied beyond reasonable doubt that Mr Berry's smoking habit is not service related. We are not satisfied beyond reasonable doubt that he did not become pale and shaken and frightened and claustrophobic after his first experience of being called to Action Stations in a Bofors magazine, probably on 27 September 1956, as recorded in the HMAS Melbourne ship's log. We also cannot be satisfied beyond reasonable doubt that when Mr Berry emerged pale, sweating and obviously shaken a Petty Officer did not, as described by him, suggest that he have a cigarette to calm his nerves. Rear-Admiral Griffiths thought that it would be quite likely that Mr Berry would have found it a claustrophobic experience to be in a magazine during a training exercise and that a Petty Officer would suggest something to calm him. We see nothing unreasonable about Mr Berry's evidence that the suggestion was then made that he have a cigarette, and that his smoking habit started from that incident.
135. There appears to be no evidence to contradict Mr Berry's evidence that he had not smoked prior to that experience. His evidence as to the way in which he emerged from the magazine on some occasion, and as to the fact that he did not smoke before that incident, and did smoke after that incident, is supported by Mr Charman.
136. We cannot be satisfied beyond reasonable doubt that Mr Berry did not commence smoking during operational service as a result of being offered a cigarette by a Petty Officer to calm his nerves when the Petty Officer saw him emerging pale and shaken from the Bofors magazine after responding to a call to Action Stations. Thus we find that gastro-oesophageal reflux disease is a war-caused disease.
chronic bronchitis
137. The decision under review of 10 June 1999 revoked a decision accepting chronic asthmatic bronchitis as war-caused. That decision was accepted in a Repatriation Commission decision of 7 May 1998, therefore that is the only respiratory condition with which this application is concerned. Dr Barbagello, in the claim lodged by Mr Berry on 3 June 1999, stated, (T doc p57), that Mr Berry has had frequent infective bronchitis since 1992.
138. The relevant SoP in regard to chronic bronchitis is Instrument Nº 73 of 1997. That SoP states in clause 2(b)(i):
There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;
The evidence did not distinguish between those different types of bronchitis. Clause 5(b) seems to relate generally to chronic bronchitis. Clause 5 of the SoP provides as follows:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person's relevant service are:
(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
. . .
(ii) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
139. Those smoking-related factors simply require smoking at least 10-pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of chronic bronchitis. Factor (a)(ii) additionally requires that where smoking has ceased the clinical onset has occurred within one year of cessation. As set out in paragraph 108 above, Mr Berry said he gave up smoking in 1992. The clinical onset of the chronic bronchitis was said by Dr Barbagello to have been in 1992. Thus that factor is satisfactorily raised.
140. Clause 4 provides that the factor relied upon must be service related. For the reasons which we have given in respect of gastro-oesophageal reflux disease, we find that Mr Berry has raised a reasonable hypothesis that his smoking, which comprised at least 10-pack years of cigarettes, was service-related as required by clause 4 of the SoP. We are not satisfied beyond reasonable doubt that his chronic bronchitis is not war-caused. Accordingly, we find that chronic bronchitis is a war-caused disease.
assessment
141. Mr De Marchi in part V of his Statement of Facts and Contentions submitted as to assessment:
THORACIC SPONDYLOSIS/LUMBAR SPONDYLOSIS;
These conditions have previously been assessed at the 30 impairment points level and it is submitted that a further 10 points from Table 3.4.1 for resting joint pain is applicable.
POST TRAUMATIC STRESS DISORDER - PANIC ATTACKS WITH AGORAPHOBIA - SUBSTANCE ABUSE - ALCOHOL AND SUBSTANCE INDUCED PERSISTING AMNESIC DISORDER;
Dr. Cole has addressed these conditions in his report and has assessed them at 24 impairment points.
GASTRO-OESOPHAGEAL REFLUX DISEASE;
Mr Marshall has addressed this in his report and assessed this condition at 5 impairment points.
CHRONIC ASTHMATIC BRONCHITIS;
This condition has been assessed previously at the 39 impairment points level and it is submitted that there is no change.
142. The respondent did not address the issue of assessment in its Statement of Facts and Contentions. Mr Hanks said on the issue in his closing address (trans. pp329-330):
Here we are, post-traumatic stress disorder, panic attacks with agoraphobia, I think the evidence that we have heard is that is rolled into, if the PTSD or the anxiety disorder, substance abuse alcohol, then we've got some amnestic disorder, and that would inevitably go with substance abuse if that were to be accepted, gastro-oesophageal reflux disease and chronic asthmatic bronchitis. Now, the last two are smoking related and if Mr Berry's account of the stress that he experienced in October 1956 is not displaced beyond reasonable doubt that would be a foundation for the commencement of his smoking habit.
So those conditions, if one looks at the statement of principles, can get up on smoking over a particular period, there's no dispute that the period was established in each case so long as the smoking is related to service and for it to be related to service we have got to have a hypothesis that there was some event which triggered it and which caused him to take it up and to continue it as an addictive or habit-forming occupation, but then you must be satisfied, or least you must consider whether you are satisfied beyond reasonable doubt, that his story is being displaced.
All of those could be brought into account in the matter of assessment and on the opinion expressed by Dr Stone, which can be found at (xxvii) in the T documents, and the total incapacity would be sufficient to qualify Mr Berry for special rate pension.
He added (trans. pp332-333):
Just so we can clarify what my friend has said, it will only take two minutes. We would accept that it would be possible for the psychiatric conditions to be not accepted and for the conditions that are related to smoking to be accepted. You would have work, with respect, the Tribunal would have to work its way carefully through that to achieve that result but it would be possible. It would be possible that you could have some stimulus which caused a person to take up smoking but which wasn't sufficient for post-traumatic stress disorder and, although perhaps sufficient for generalised anxiety disorder was not followed by the necessary clinical onset of the symptoms as required by the SOP within two years so you could have the alternative, but in that case you would think that it would be unwise for the Tribunal to assume that the special rate of pension would be paid and that would be proper matter to be remitted for assessment.
143. Mr Marshall in his report (A2) wrote that the appropriate impairment rating for gastro-oesophageal reflux disease on Table 6.1.4 in Chapter 6 of the Guide to the Assessment of Rates of Veteran's Pensions (GARP) was 5. That rating is appropriate for "Reflux, with or without oesophagitis: frequent minor symptoms necessitating frequent use of antacids or use of H2 receptor antagonist medication". Mr Marshall wrote of that description "That of course is exactly the situation which Mr Berry lives under". We accept that evidence and assess Mr Berry's gastro-oesophageal reflux disease at 5 impairment points.
144. As to chronic bronchitis although the T documents include (at pp86 and 89) some documents prepared for assessment purposes, we had no evidence as to the appropriate GARP assessment. Mr De Marchi in his Statement of Facts and Contentions claimed the condition was previously assessed at 39 impairment points and there had been no change. The respondent did not challenge that. We find that chronic bronchitis is to be assessed at 39 impairment points.
145. The T documents (at T41 p219) include a consent decision of the Tribunal accepting conditions of lumbar spondylosis and thoracic spondylosis as war-caused and deciding that disability pension was payable to Mr Berry at 70% of the General Rate with effect from 13 May 1997, but that decision does not state the agreed impairment points. Mr De Marchi has stated that the previous assessment was 30 impairment points. He sought an increase to take into account a further 10 points on Table 3.4.1 for resting joint pain. There was no evidence to support any claim for an increase. We find there is no evidence to cause us to change the previously accepted rating. We therefore find 30 impairment points to be appropriate for thoracic spondylosis and lumbar spondylosis.
146. The next step requires the Tribunal to prepare a combined impairment rating using Table 18.1, taking into account the accepted conditions. Ratings of 39 for chronic bronchitis, 30 for thoracic and lumbar spondylosis and 5 for gastro-oesophageal reflux disease give a combined impairment rating of 59.
147. An impairment rating of 59, rounded up to 60 together with the lifestyle rating in the shaded area on Table 23.1, entitles Mr Berry to pension at 100% of the general rate.
148. The sole remaining issue is whether Mr Berry is entitled to pension at the special rate under s 24 of the Act or the intermediate rate under s 23 of the Act. Mr Hanks suggested that the matter should be remitted to the Commission. We do not consider that to be necessary.
149. Section 24(1) of the Act provides as follows:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
Section 23 is in similar terms but it applies where a veteran is incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.
150. Mr Berry's evidence was that he worked with Philip Morris for 28 years. He left there in 1988 and the same year started part-time cleaning work 20 to 22 hours a week at the Harold McCracken Nursing Home. He worked there for seven years until 1995 (trans. p42). He said he did not want to cease work in 1995, when he was not yet 60, but the conditions of work had changed when they started using private contractors. He said the work became too hard and that affected his back and his anxiety. He said his hours were reduced and he also was required to do different duties with more bending to clean under beds. He said (trans. p43) that it was both his back and his anxiety which led to his ceasing work.
151. Mr Hanks (at trans. pp101-105) took Mr Berry through some of Dr Barbagello's clinical notes (R10). On 26 July 1993 Dr Barbagello had seen Mr Berry after he had been sent home from work. Dr Barbegello noted he was pallid, looked awful, and had vague symptoms of tiredness and stress. From the note it appears that Mr Berry had told Dr Barbagello that his work hours were to be cut by 30 hours a fortnight, that he was nervy since renal surgery and that he was upset about a friend's recent acute myocardial infarct.
152. Dr Stone in his report of 10 November 1998 (Tdocs pxx) wrote that Mr Berry's post traumatic stress disorder, gastro-oesophageal reflux disease and chronic asthmatic bronchitis together with lumbar spondylosis did prevent him working more than eight hours a week. However we find from Mr Berry's evidence to the Tribunal that his anxiety disorder, which we have found is not war-caused, and the changes to his work environment which caused his hours to be substantially reduced, both contributed to him ceasing to undertake remunerative work.
153. We find that Mr Berry is not entitled to an increased rate of pension under either s 23 or s 24 of the Act as the "alone" requirements of s 24(1)(b) and (c) and s 23(1)(b) and (c) are not satisfied.
154. The decision under review will be varied to provide:
(i) the decision accepting post-traumatic stress disorder as a war-caused disease from 13 May 1997 is revoked;
(ii) generalised anxiety disorder is not a war-caused disease;
(iii) gastro-oesophageal reflux disease is a war-caused disease with effect from 13 May 1987;
(iv) chronic bronchitis is a war-caused disease with effect from 13 May 1997;
(v) gastro-oesophageal reflux disease is to be assessed at 5 impairment points on Table 6.1.4 of the GARP and chronic bronchitis is to be assessed at 39 impairment points;
(vi) Mr Berry is entitled to pension at 100% of the general rate from 13 May 1997.
I certify that the 154 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent,
Member
Signed: Grace Carney
Personal Assistant
Date/s of Hearing 28 August, 30 and 31 October 2001
Date of Decision 6 February 2002
Counsel for the Applicant Mr M O'Brien
Solicitor for the Applicant De Marchi and Associates
Counsel for the Respondent Mr P Hanks, QC
and
Miss A McMahon
Solicitor for the Respondent Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2002/70.html