Lees and Repatriation Commission [2002] AATA 98 (15 February 2002)

Last Updated: 20 February 2002

CATCHWORDS - VETERANS' AFFAIRS - veterans' entitlements - generalised anxiety disorder - alcohol abuse or alcohol dependence - gastro-oesophageal reflux disease - whether war caused - whether hypotheses consistent with Statements of Principles - whether material points to the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event - whether material points to the clinical onset of alcohol dependence or alcohol abuse within two years of experiencing a severe stressor - decisions affirmed

Veterans' Entitlements Act 1986 ss. 5AB, 5D, 8, 9, 13, 70, 196B, 120, 120A

Repatriation Commission v Cooke (1998) 90 FCR 307

Benjamin and Repatriation Commission [2001] FCA 522

Repatriation Commission v Budworth [2001] FCA 1421

Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 116 ALR 210

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 27 AAR 144

McLean and Repatriation Commission [2001] FCA 1505

Merrell and Repatriation Commission [2001] AATA 413

Campbell and Repatriation Commission [2001] AATA 559

Williams v Repatriation Commission [2001] FCA 601

Gorton v Repatriation Commission [2001] FCA 286

Repatriation Commission v Gorton [2001] FCA 1194

DECISION AND REASONS FOR DECISION [2002] AATA 98

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2000/339 and S2000/340

VETERANS' APPEALS DIVISION )

Re ALLAN JOHN LEES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Mr D J Trowse (Member)

Date: 15 February, 2002

Place: Adelaide

Decision: The Tribunal affirms the decisions of the respondent dated 15 April, 1999 and 13 December, 1999.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 28 August, 2000, the applicant, Mr Allan John Lees, applied for review of two decisions of the respondent, the Repatriation Commission ("the Commission") which were affirmed by a decision of the Veterans' Review Board ("VRB") dated 27 July, 2000. The first decision, dated 15 April, 1999, refused Mr Lees' claim that generalised anxiety disorder is a war-caused disease or injury within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). The second decision, dated 13 December, 1999, refused his claims for gastro-oesophageal reflux disease and alcohol dependence or alcohol abuse.

2. At the hearing, Mr Lees was represented by Mr White and the Commission by its advocate, Mr Doube. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a report of Dr John Carroll, a report of proceedings in relation to HMAS Sydney ("the Sydney") for May, 1971, a bundle of documents relating to the Sydney under cover of letter dated 2 February, 2001, a bundle of documents including extracts from articles, a report of Dr Ewer dated 15 December, 2000, a summary of Mr Lees' postings and a signal to the Sydney dated August, 1967, material assembled by Mr Robert Piper, a copy of a General Medical Examination and History dated 17 June, 1992, a transcription of a General Medical Examination dated 24 October, 1991 and a letter dated 24 March, 2001 by Ms Jill Haidon, Team Leader in Personnel Records of the Department of Defence ("the Department").

Mr Lees gave evidence in support of his case together with Dr Martin Ewer, a consultant psychiatrist and Dr John Carroll, a naval architect, psychologist and honorary secretary of the HMAS Sydney and Vietnam Logistic Support Veterans' Association. Mr Robert Piper, an historical research officer and historian, gave evidence on behalf of the Commission.

THE ISSUES

3. The issues in this case are whether Mr Lees' conditions of generalised anxiety disorder, alcohol dependence or alcohol abuse and gastro-oesophageal reflux disease are war-caused within the meaning of the Act.

BACKGROUND

4. On the basis of the evidence, we have made a number of findings of fact regarding the background to the issues we must decide and will set them out in the following paragraphs.

5. Mr Lees was born on 2 October, 1952 and is now 49 years of age. He enlisted in the Royal Australian Navy ("the Navy") on 7 July, 1968 when he was 15 years of age. His initial training was completed in a year at HMAS Leeuwin ("Leeuwin"). Most of his training took place in the classroom. While he was undergoing additional training at HMAS Penguin from 2 July, 1969 until 14 July, 1969, Mr Lees learned that his brother, who was in the Australian Army and serving in Vietnam, had been seriously injured in June, 1969. At that stage, he did not know the extent of his brother's injuries and knew only that they were serious. He sought compassionate leave to visit him in hospital at Ingleburn.

6. Soon after, on 26 October, 1969, he was posted to the Sydney as an ordinary seaman. At this time, his training had been shore-based and he had not had any experience at sea. The Sydney sailed for Vung Tau and he had 19 days operational service within the meaning of s. 6C of the Act between 15 November, 1969 and 3 December, 1969. The Sydney was escorted by HMAS Duchess ("the Duchess"). Mr Lees sailed to Vietnam again on the Sydney and had 18 days operational service between 16 February, 1970 and 5 March, 1971. He also sailed to Vietnam on the Duchess. Between 3 April, 1971 and 8 April, 1971, he had six days operational service and between 17 May, 1971 and 1 June, 1971, he had 16 days operational service on the Duchess when it sailed to Vietnam. In all, Mr Lees had 59 days operational service in Vietnamese waters.

THE EVIDENCE

Service

Mr Lees

7. As the Sydney approached the coast of Vietnam, Mr Lees said that the ship was darkened and there was more activity in the area known as "HQ1". When the ship was anchored, sentries were posted and steps taken to deter enemy divers from getting close to the ship. Mr Lees did not hear the sentries fire their weapons. Mr Lees said that he could not recall being given any preparation for the Sydney's entering a war zone.

8. Mr Lees said that he was assigned to general duties on the Sydney. He said that he was part of a group known as "the cafeteria party" and his duties included cleaning toilets and washing dishes. Part of his instruction involved his being in the boiler room and spending a short time in the wheel house and as a look out on the bridge. When the Sydney approached Vietnamese waters, Mr Lees said that his duties were to wash dishes all day. Those were his duties for a month or two and would have been undertaken, on Dr Carroll's evidence, at a point on the ship at the water line. He described himself and his colleagues as "dogs' bodies".

9. Apart from his basic training, Mr Lees said that he undertook a marine engineers course to become a stoker. He worked in the boiler rooms.

10. While on the Duchess, Mr Lees said that he worked in the machinery spaces in the boiler rooms. They are located approximately eight to ten feet below the water line of the ship. At any time, three or four crewmen would be present in a boiler room. He spent most of his time in the boiler room on the Duchess.

Dr Carroll

11. Dr Carroll served aboard the Sydney on trips 5, 6 and 7 in 1967 and trips 24 and 25 in 1972 as well as on the HMAS Yarra ("the Yarra") as escort ship to the Sydney on trip 8 in 1967/68. Mr Lees was on the Sydney on trip 15 in 1969 and trip 16 in 1970.

12. From documents such as naval records (such as reports of proceedings and crew lists) and books of reference as well as from correspondence he had received from the Commanding Officers and senior officers on board the ships at the relevant times, Dr Carroll prepared a summary of events on the Sydney and the Duchess at the relevant times.

13. In dealing with trip 15 of the Sydney, Dr Carroll wrote that the ship's company of the Sydney would have been made up of officers, midshipmen under training, chief petty officers, leading ranks and able and ordinary ranks. Of the 366 able and ordinary ranks, at least one third would have been ordinary seamen or recently graduated junior recruits for further training. All were counted as part of the crew. As he had wanted to be a stoker, Mr Lees would have been regarded as an ordinary seaman various ME. He would have had 12 months in that role on various parts of the ship to gain experience. As Captain Clarke, who commanded the Sydney in November, 1969 has died, Dr Carroll had obtained information from Commodore Adams, who was the Commanding Officer of the Duchess at the time. Commodore Adams set out the steps, including dropping scare charges, taken to detect and deter saboteur divers and the steps taken to implement Operation Awkward. Among those steps was the posting of upper deck sentries armed with SLR rifles with authority to fire at any flotsam passing close to the ship and that might camouflage a Viet Cong swimmer. He wrote that the sentries had been thoroughly trained in those duties before their arrival at Vung Tau. Many of them were "... junior sailors (Ords Various) at sea for the very first time.)" (Exhibit A, page 6). Approximately 50 rounds were fired on that voyage by the sentries. Dr Carroll added in his oral evidence that not only were the Australians firing into the water when he was in Vung Tau but also that there was firing from American patrol boats.

14. Dr Carroll said that ships were required to maintain Awkward State 2 while at anchor in Vung Tau unless they were otherwise ordered. If there were positive evidence of imminent or completed attack, they were to maintain Awkward State 1. Prior to their sailing into the harbour they were locked up tight and no-one moved. They were ready for the unannounced and could be closed up like that for four to eight hours and, depending on the commanding officer of the ship, even up to 14 hours. It was not pleasant but had to be done when there was perceived to be danger. That was damage control status that was adopted approximately four hours out of the harbour but could not be maintained when a ship had to load and unload cargo and personnel.

15. Commodore Adams concluded by writing:

"Having regard to the virtual war footing which the ship was on, which was deemed necessary because of the intelligence scenario where merchant ships had been attacked by swimmers. As well as the threat from shore rockets and mortars, it will be appreciated that there was a degree of tension throughout the ship. This, of course, was alleviated by Jolly Jack's sense of humour and by the confidence-building leadership displayed by the ship's officers and senior sailors. Nevertheless, to deny that sailors became stressed, particularly when they had to go below decks for rest and meals, would be to deny that the ship was in a threatened anchorage. Engine Room staff and Damage Control parties would certainly have felt the strain." (Exhibit A, page 7)

16. Dr Carroll recalled that junior recruits received some 12 months training at Leeuwin where they were predominantly engaged in class room work. Trainees joining a ship about to embark on a voyage to Vietnam would have been virtually trained on the journey there. If there were some time between his joining and embarkation, the trainee would not receive any training at that stage but would be engaged in general husbandry about the ship. If there were only a small amount of time, the trainee would be trained as part of a damage control party. A damage control party had to be familiar with every part of the ship for which it had responsibility to fight fires and to rescue those who were injured. In the case of a trainee on the Sydney, it is possible that there was not a lot of time for his training as he would be engaged in loading and unloading the ship and in general labouring duties.

The scare charges

Mr Lees

17. When he was on the Duchess and once the ship was in an operational area, he was expected to stay at his post in the boiler room and to wear appropriate clothing to protect him from flash fires. While in Vung Tau Harbour, the ships were always at Awkward State 2 readiness.

18. The first occasion on which he heard an explosion, Mr Lees said that he was on his first voyage on the Sydney and that he thought that it had occurred on his first day in Vietnamese waters. He had been detailed to go to one of the stores to pick up clothing, bedding and equipment and had collected it. As he was climbing up a ladder with the stores from the compartment, he heard what he later found out to be a scare charge. At the time, he had no idea what it was. He had not been told that it would be dropped and had not previously been on a ship when a scare charge was dropped. It was not until some two or three trips later, he said in giving evidence, that he found out what the explosion was.

19. The scare charge made a very loud noise as well as a "pinging" sound. His reaction was to get up the ladder and get out of the compartment, which was in the middle of the ship and had no light. Mr Lees said in giving evidence that he was quite frightened and his initial thought was that there could be a major problem from under the water. In cross-examination, Mr Lees said that he "felt extremely panicked". At the time, he was with three or four other people in the compartment but there was no discussion among them as to what the noise was and he did not recall any attempt to find out what the noise was. When asked why he had not attempted to do so when he was so frightened, Mr Lees replied that his main aim was to get out of the compartment.

20. Mr Lees said that he had not noticed how many scare charges had exploded but he understood later that they had been dropped intermittently. There was no warning as to when they would be dropped. His reaction when they were subsequently dropped was similar to his first reaction but he understood more quickly what had caused the noise he heard. Initially, he was still uncertain what it was when he heard the noise.

21. In cross-examination, Mr Lees said that he could not recall what he did after he heard the first scare charge. He could not recall saying that he was surprised by it or that anyone else expressed surprise. As to why he had not discussed the scare charge with anyone when he had been frightened by it, Mr Lees said that he had no idea. He could not specifically recall how he would have found out what the explosion was but said that he would have found out in the course of the day. When it was put to him that he had earlier said that he did not find out what the explosion was until two or three trips later, Mr Lees said that he needed to explain. After a few trips, he progressively understood what the explosions were. Towards the end of his last trip on the Duchess he came to know that it would last a few seconds. When he was not expecting them earlier in the piece, it took longer to work out what it was. He worked it out more quickly as time went by.

22. While serving on the Duchess, Mr Lees said, scare charges were dropped. The explosion was as loud, if not louder, than on the Sydney because he was now further down the ship but, although initially alarmed, he worked out more quickly what the noise was.

Dr Carroll

23. Dr Carroll wrote in his report that scare charges were dropped on a suspected hostile swimmer but otherwise at random. There was, however, some degree of order in the random dropping for an hourly rate was specified according to the speed of the tide (Exhibit A, page 41). No warning was given for that would remove the element of surprise. Scare charges were not dropped within 200 yards of a ship if friendly divers were in the water. The purpose of scare charges was to "scare the living daylights out of anyone in the water", Dr Carroll said in giving evidence. They played havoc with a swimmer's eardrums and could be fatal. Usually, they were made up of a pound or so of TNT but, on occasions, grenades were used. Their explosion was louder than rifle fire. They cause the hull of a ship to ring like a tuning fork. Dr Carroll said that he witnessed people wet themselves when a scare charge was dropped. They scared the daylights out of them but the sailors did not admit it. To say that they would not have worried about it would be pure fantasy. Dr Carroll said that he was lucky to be with more experienced men in the senior sailors' mess but younger people would not have had "the wise heads of older people to refer back to". At sea there is a lot of category jealousy and there is a distinction between nice to know and need to know.

Mr Piper

24. Mr Piper's research led him to the conclusion that small charges were sometimes dropped over the side of Royal Australian Navy vessels while moored at Vung Tau in order to deter enemy swimmers. This was usually carried out when there was a suspected sighting of an enemy swimmer and none was recorded as being used on either the Sydney or the Duchess while Mr Lees was serving on them.

Firing from the helicopters

Mr Lees

25. Mr Lees said that he witnessed an incident involving two helicopters when he was on the forward end of the ship. Two helicopters were firing at something on the land and towards the hills. One would stand off while the other fired at a position and then they would change position. The helicopters, he said, were close enough for him to see the smoke trails from whatever weapons they were firing. When the helicopters banked, he could hear their blades but that depended upon the angle they were at the time. Mr Lees said that he had no idea whether the helicopters belonged to Australia or to the United States of America. He said that the firing continued for approximately 30 minutes and he observed it. Mr Lees said that he felt frightened for himself and the people who were being shot at. He was acutely anxious for himself as he felt that there might be some threat to him on the ship. At the time, he was only 17 years of age and fairly impressionable. It made him aware that people were being shot at and that he was in a war zone.

26. In cross-examination, Mr Lees said that he could not say in what direction the ship was facing at the time of the firing incident. Vung Tau Harbour was on the right hand side of the ship and that side of the ship faced hilly country. He could not estimate the distance between the ship and the shore but he was close enough to see what was going on while he was on his break from dishwashing. He had a ten minute break from dishwashing and also watched what was going on when he should not have been watching. Others also watched what was going on but he could not recall whether anything was said or whether they discussed how they felt about what was going on.

Dr Carroll

27. Dr Carroll had received a letter from Lt. Cdr. Nott MBE RFD RAN Rtd regarding an incident on 28 November, 1969:

"HMAS Sydney and her escorting destroyer, HMAS Duchess, entered Vung Tau at approximately 0400 and both ships proceeded to their allocated anchorage. HMAS Duchess anchored about 1.5 cables upstream of HMAS Sydney so as to act as an anchor screen during her unloading/back-loading operations.

At about 1000 several U.S. Army gun-ship helicopters could be seen from the anchored ships attacking VC positions in the vicinity of Cap St. Jacques, this hill was commonly referred to as VC Hill. The helicopters fired 2inch rockets and strafed the area with their door-mounted machine guns.

It was common practice at that time to catch the expended cartridge case from the machine guns in a bag, slung under the gun mount, so as to lessen the possibility of spent cartridges being swept up into the rotors.

The aircraft flew to the west of the anchored ships on their return to Vung Tau Airfield and as they did the crew emptied the spent cartridges into the harbour in close proximity to the anchored ships. At first glance the line of splashes in the water gave the impression that the helicopters were firing at targets in the water close to the ships.

As the Gunnery Officer of HMAS Duchess I was so concerned at what was going on that I contacted Harbour Control for reassurance that the ships were not under some kind of threat. It was then that I was informed about the retention and release of spent machine gun cartridges." (Exhibit A, pages 7-8)

28. When at anchor, Dr Carroll said, the Sydney would pivot about a point. From the shore, anchorage B12 at which the Sydney anchored, was less than a nautical mile or 2,000 yards from the shore (Exhibit A, page 28). The ship was 700 feet long and sometimes it would be closer to the shore and at others further away as it pivoted about the anchorage. Nui Vung Mai on the shore and known as VC Hill could be seen from B12 and they were approximately 3,000 yards apart.

Mr Piper

29. In his report, Mr Piper noted that he was unable to find any details of Australian helicopters being involved in an incident as described by Mr Lees.

Brother's injuries

Mr Lees

30. While on the Sydney, Mr Lees learned more about how his brother had been injured in Vietnam when his brother's battalion returned to Australia on that ship. He discovered that his brother had stepped on a mine and that his brother had threatened to "blow his family jewels off" if he lost certain parts of his body as a result.

31. Mr Lees said in cross-examination that he had visited his brother in hospital at Ingleburn where he was recovering from multiple severe shrapnel wounds. At that time, his brother had lost a lot of weight and looked like an old man. His brother was confined to a wheel chair. It was a very distressing experience for Mr Lees to see him that way.

The boiler room incident

Mr Lees

32. When he was in a boiler room on the Duchess one day, Mr Lee said, the boiler suddenly began to shake violently without any warning. He could see the boiler, which was some 15 or 16 feet high, pulsate violently in front of him. His reaction, he said, was one of abject horror. He was not horrified because he thought that it could explode because he was not aware that it could do so. Rather, he was horrified, he said, because what he was witnessing was a terrible thing and he prayed for it to stop. Mr Lees said that he was horrified because he had an idea that they were in dire straits if it did not stop. A petty officer in the room virtually collapsed at the time. He had to be helped out of the machinery space.

33. Mr Lees said that the ship was at sea when the incident occurred but he did not know where at sea or when. He could not recall the next port into which the Duchess sailed after that incident. In cross-examination, he said that he could not recall at what point in the voyage the incident occurred.

34. In cross-examination, Mr Lees further described the incident in the boiler room. He said that there were three or four explosions in the boiler each second. They continued for four or five seconds and the boiler appeared to be pulsating. Mr Lees said that he was standing five or six feet from the boiler casing and had no time to think other than when would it stop. He thought that the petty officer must have added more oxygen to the mix to stop the pulsations before he was carried out of the boiler room. Mr Lees said that he could not recall whether he discussed the incident with anyone else but probably did so.

Mr Piper

35. Mr Piper said in his report that:

"Boiler pulsation on vessels, such as destroyer, is caused by too much oil in the oil/air ratio of combustion. Destroyers run on 'black' oil. The boilers are secured by bolts and 'sliding feet' to allow for expansion and contraction. Older boilers (i.e. HMAS Duchess) probably ran on a pressure of 600 lb per square inch while modern ones run approximately 1275 lb.

Boiler pulsation is caused by operator error and can be manually corrected by adjusting the air/oil (mixture) ratio. The incorrect rich mixture as well as causing pulsation also produces more (than normal) black smoke.

Pulsation in a ship's boiler is dangerous and is a frightening experience. The incorrect fuel/air ration causes a vacuum as the boiler seeks more air - that air being 'sucked' in from outside the boiler, from the engine room surrounds. The boiler literally begins to 'move'. The pulsating causes stress on pipework and they can break and rupture emitting steam and water into the furnace area which hopefully blows up the stack.

The older style destroyers like the Duchess had the boiler protected by only one set of doors while the newer models had a double set of doors. Apparently the older models were much more exposed and unpleasant to work close to. With the boiler running it is almost impossible, because of the vacuum, to open both sets of doors.

Chief Petty Officer Derek Hughes (HMAS Cerberus - Engineering) - 9 May 2001. CPO Hughes advised that the older boilers, such as on the Duchess, ran a pressure of 640 pound per square inch. Pulsation occurred when there was too much fuel and not enough air. The pulsation 'destroys the brickwork and also asbestos surrounding the boiler'. 'The casings move in and out'. 'Sometimes creating a sort of fog in the air'. 'It was a pretty frightening experience if close by', he commented." (Exhibit 2, page 7)

Mr Piper questioned whether it is possible that Mr Lees confused boiler pulsation with the blowing of the cover joint of the main stop by-pass valve on B boiler on the Duchess. The boiler room was said to be uninhabitable at that time on 16 April, 1971 in Hong Kong. If pulsation had occurred, it would have been recorded in the report of proceedings had it been serious in order to ensure that it did not happen again.

Drinking alcohol

Mr Lees

36. Before joining the Navy, Mr Lees said in giving evidence, he did not drink alcohol. He started to do so on the Sydney. When asked how his drinking arose, Mr Lees replied that it arose by buying non-beer drinkers' beer issue. His drinking "developed into more of a situation" on board the Duchess. He agreed that it was "basically correct" that his drinking began because of what happened on the first trip. Later in giving evidence, Mr Lees said that he drank as much as he could get hold of on that first trip. He did so because things were going through his mind and because he had found out about his brother and what his brother intended to do.

37. When he was on the Duchess, Mr Lees said, he could now legally drink alcohol and drank as much as he could get his hands on. He drank beer because he felt better and he needed to feel better because of what had happened to him and because of his brother. His consumption varied on the Duchess and depended upon the circumstances. At times, he would have none and at others would have as much as he could hold. If not on watch, he consumed six large 750ml cans of beer. When on shore leave overseas, he also consumed rum and coke. He did not mix his drinks. If he were drinking rum and coke, he would consume seven or eight doubles. Mr Lees said that he recalled that he drank a lot on his own although he did drink with shipmates at times.

38. His intake of alcohol continued after he completed his operational service. He felt unwell and consulted his general practitioner in 1999. His general practitioner showed him strategies he should follow and has seen him twice since then. Mr Lees said that he had continued to have problems with people at work. Mr Lees said that he reduced his intake of alcohol in approximately 1998 when he discovered that he had not suffered from hepatitis A as he had previously thought but hepatitis B. He was advised by his general practitioner that he stop drinking alcohol as his liver enzymes were elevated. Over time, he resumed drinking to the same level as previously.

39. In cross-examination, Mr Lees said that the standard ration of alcohol was one large can of beer per man per day. It was not given to crew members who were under the age of 18 years. He had his first drink while on the Sydney when the ship was on its way back to Australia and about a week out. He continued to have one here and there but he started to drink on the Duchess, he said. While he was under age, he acquired his drinks by illegal means but later agreed that he had only obtained a couple of cans illegally. As he was under age, he would have been in trouble had he been caught. His drinking habit was minimal as the opportunities for him to drink were not there. Although he agreed with Mr Doube that it is normal for a 17 year old to seek the thing forbidden to him or her and that this might have been part of his seeking beer, he firmly believes that the events to which he referred had led him to drink beer. In cross-examination, Mr Lees said that he first started to drink seriously while he was on the Duchess and after he had learned about his brother.

40. Mr Lees said that he felt that he was under a lot of stress and felt a lot of weight. He felt keyed up and kept to himself. Previously, he had always been a person who could mix. What he saw on the trips made him think. He was "pretty upset" about what his brother was going to do to himself but he never had nightmares about any of the incidents. Mr Lees said that he will have a few drinks and think about the incidents but the thoughts are not as intense if he does not drink. At the same time, alcohol makes him feel more relaxed but makes things more intense. Alcohol affects his behaviour and it is a lot easier to get into trouble and leads to physical changes. He said that he drinks because of various things including the pressure of being on the ships, occupying the lowest level in the pecking order and the overall pressures. At 17, things stuck in his mind.

41. In cross-examination, Mr Lees agreed that there is a culture of drinking in the Navy. Non-drinkers were probably relatively few. He could find someone to give him his beer ration if he was prepared to pay for it. By the time he was on the Sydney, he had been in the Navy for 15 or 16 months. As to why he had not been tempted in that time, he said that he was probably more intimidated by the staff at a younger age and did not try. In the 12 years of his naval service, Mr Lees said that he had never been reprimanded for drinking. He never approached anyone for treatment for any alcohol or stress related problem.

Hepatitis

Mr Lees

42. Mr Lees said that he recalled contracting hepatitis in June, 1972 and had thought for a long time that it was hepatitis A. On being told in 1998 that it was hepatitis B, his thoughts were for his wife and family and he was concerned that it could be transmitted to his wife. He was anxious about that.

43. Mr Lees agreed with Mr Doube in cross-examination that he had mentioned only his hepatitis when he lodged his claim for anxiety. He had said that he was suffering "anxiety due to concern about liver damage and lifestyle changes" (T documents, page 85). Although he had mentioned other factors to his wife over the years, he said, he had not included the factors upon which he now relies as he had not realised that they were having any influence on him until he went to talk to Dr Ewer. He had not mentioned hepatitis since his claim was refused but had no idea why it had never been relied on again.

Medical evidence

Dr Ewer

44. Dr Ewer prepared his report dated 25 March, 1999 in response to a request from the Department of Veterans' Affairs after interviewing Mr Lees on 24 March, 1999. He summarised Mr Lees' naval service and the incidents relating to the scare charges, the firing from the helicopters and his brother's injuries as well as his hepatitis. As to Mr Lees' use of alcohol, Dr Ewer wrote:

"Mr. Lees told me that he occasionally felt anxious whilst serving in the Navy to cope he abused alcohol.

Upon returning from Vietnam Mr. Lees noticed that he was more emotional and his alcohol abuse worsened.

...

Mr. Lees told me that he did not drink alcohol at all prior to going to Vietnam. He started drinking alcohol on the HMAS Duchess and he told me that he did this because of the stress of being a Stoker and being in the tropics. He also said that peer pressure influenced his alcohol abuse. He drank very heavily when he was ashore. Mr. Lees continued to abuse alcohol upon returning to Australia. He did so until six months ago when he reduced his alcohol intake because of his liver problems. Over the years Mr. Lees has abused alcohol in the workplace. He has been so intoxicated that he cannot recall what has occurred and he has been unsteady on his feet." (T documents, pages 125-126)

45. Dr Ewer set out Mr Lees' history in relation to hepatitis:

"He told that he was not overly concerned about having contracted Hepatitis A as he believed the condition was self limiting.

Mr. Lees was largely asymptomatic for a number of years. He told me that he was a blood donor and that in 1997 the Red Cross had written to him informing him that he had Hepatitis B. He thought this may have been due to him being vaccinated. Mr. Lees received a letter from the Red Cross six months ago indicating that his liver enzymes were elevated. As a result of this letter Mr. Lees attended his General Practitioner. Mr. Lees' General Practitioner explained to him that he had in fact contracted Hepatitis B. Mr. Lees' General Practitioner advised him to reduce his alcohol intake. Mr. Lees did this in the expectation that his liver enzymes would return to a normal level. The enzyme levels did not reduce and indeed they are still elevated.

Mr. Lees told me that he requested further information regarding Hepatitis B and he now fears that he may develop cirrhosis of the liver because of Hepatitis B. He also worries excessively about the possibility of Hepatitis B leading to liver cancer. He worries excessively about the possibility of his wife and children being affected by his Hepatitis as he now believes that he is infectious. Mr. Lees also worries about the fact that his lifestyle has been restricted as a result of him suffering from Hepatitis. Mr. Lees told me that he has also felt anxious because his friends have ridiculed him about having Hepatitis B and about his inability to consume as much alcohol as he used to drink." (T documents, pages 125-126)

46. As a result of what he described as "the above stressors", Dr Ewer said that Mr Lees had felt increasingly anxious. When he feels anxious, he felt sweaty and became more irritable. He suffers from headaches and occasionally had nightmares about his hepatitis. Dr Ewer diagnosed Mr Lees as suffering from a generalised anxiety disorder as he has experienced a high level of anxiety which has been clinically significant for a number of months. Mr Lees was suffering excessively, experiences tension headaches and was troubled by insomnia and poor concentration. Dr Ewer also diagnosed Mr Lees as suffering from alcohol abuse and dependence.

47. Dr Ewer concluded that both Mr Lees' generalized anxiety disorder and alcohol abuse are related to his war service:

"... Mr. Lees' Generalized Anxiety Disorder is related to his war service because it has been caused by his Hepatitis. Mr. Lees told me that he contracted Hepatitis whilst serving in the Navy. He initially thought that he had a self limiting form of Hepatitis but he now believes that he has a form of Hepatitis which may lead to cancer or cirrhosis. He is worrying excessively about these possibilities. I also believe that his anxiety is related to discovering that he has Hepatitis B because his anxiety worsened significantly after he discovered the implications of Hepatitis B.

I also believe Mr. Lees' Alcohol Abuse is directly related to his naval service. Firstly, Mr. Lees started to abuse alcohol whilst serving off the shores of Vietnam. Secondly, alcohol was cheap and readily available to sailors in Vietnam. Thirdly, Mr. Lees gives a clear history of using alcohol to cope with the stress of naval life. He continued this pattern of abuse upon returning to Australia" (T documents, pages 128-129)

48. Dr Ewer's second report was written on 28 April, 2000 to Mr Lee's then advocate after Mr Lees had been referred for treatment by his general practitioner (T documents, pages 162-167). He offered Mr Lees cognitive therapy about his various concerns, taught him some practical stress management techniques to cope with his problems and counselled him about his alcohol abuse. He reiterated the views he expressed in his first report as to the relationship between Mr Lees' conditions and his war service.

49. Dr Ewer wrote a third report dated 15 December, 2000 (Exhibit E) after he had seen Mr Lees on a number of occasions. He set out details of the stressors and his emotional responses as described by Mr Lees in his oral evidence. Dr Ewer repeated his diagnoses and related Mr Lees' conditions to his war service:

"Mr. Lees has been able to provide me with further details relating to the original stressors and to his emotional reaction to those stressors. Mr. Lees had some difficulty doing this, which is understandable given the events occurred thirty years ago. However, Mr. Lees' history indicates that he developed a Generalized Anxiety Disorder after the stresses I have described. The stressors were substantial psychosocial stressors for him and this is in keeping with the definition of the Statement of Principles referring to a Generalized Anxiety Disorder. Mr. Lees' emotional reaction to the stressors can also be understood by bearing in mind that he was only seventeen years old at the time and that his brother had been involved in a life-threatening explosion in Vietnam six months earlier. I note Mr. Lees did not suffer from an Anxiety Disorder prior to him going to Vietnam on the first occasion. I note a temporal relationship between the stressful events and him developing a Generalized Anxiety Disorder in the sense that the latter came on directly after the former. I also believe Mr. Lees' Anxiety Disorder has been caused by the abovementioned stressful events because his anxiety and emotional reaction can be well understood in the context of these events (particularly given the background of his brother's experiences).

I also believe Mr. Lees' Alcohol Abuse is directly related to the subject stresses. Firstly, it would seem Mr. Lees started to abuse alcohol after he developed an Anxiety Disorder. He gives a clear history of using alcohol to help him sleep and to relieve his anxiety. I note alcohol was cheap and readily available to sailors involved in the Vietnam War." (Exhibit E)

50. In giving evidence, Dr Ewers said that Mr Lees first told him of the boiler room incident in April, 2000. It is not uncommon to add extra information at interviews after the first. Mr Lees did not give him specific quantities of the beer he consumed in the early days. Dr Ewer gauged the quantities he consumed by reference to the effects that it had upon him i.e. staggering, difficulty in recollecting events and short term memory loss. It is common for people to conceal symptoms of anxiety, Dr Ewer said, and to deny and avoid them. That occurs because they do not want to acknowledge that there is a psychological problem. Dr Ewer said that he was the first psychiatrist whom Mr Lees had consulted.

51. In cross-examination, Dr Ewer agreed with Mr Doube that he looks for both internal and external consistency when he is interviewing a person. If a person contradicts him or herself, he does not assume that what is said is true. If his or her story is internally and externally consistent and the person appears genuine, he tends to accept what he is told.

52. In cross-examination, Dr Ewer confirmed that he had written in his notes that Mr Lees had said that he started to drink while on the Duchess because of the stress of being a stoker and being in the tropics. He also thought that he had asked Mr Lees whether he had started drinking in Vietnamese waters and thought that Mr Lees had replied that he did "occasionally". This was in his notes and was the basis for his statement in his first report that "... Mr Lees started to abuse alcohol whilst serving off the shores of Vietnam ..." (T documents, page 129). Dr Ewer said that he did not think that this contradicted his statement that he started to drink because of his being a stoker in the tropics because he took it to mean a stoker in the tropics off the shores of Vietnam. He did not think that there was internal inconsistency in Mr Lees' history when he had first said that the boiler incident occurred on the Sydney and later said that it occurred on the Duchess. Mr Lees was recalling events 30 years ago and some people have difficulty even in recalling how many times they went to Vietnam.

53. Dr Ewer acknowledged that he had changed his assessment as to the cause of Mr Lees' conditions since he wrote his first report. At the time of his first report, he did not have a full understanding of events. Mr Lees had made a reference to his liver problems after the first report was written. He spoke of other stressors. Dr Ewer could not recall whether he asked Mr Lees why he now focused on the stressors other than hepatitis. He had made no record in his notes that he had done so. It is not uncommon after 30 years have passed to think of other stressors after the first conversation. In essence, Dr Ewer said that the information in the reports should not be seen as contradictory but as an accumulation of information over time.

54. As to the nature of the stressor that leads to a generalised anxiety disorder, Dr Ewer agreed that it needs to be "fairly significant" to that person. There must be a threat to life as in a motor vehicle accident. The person's physical injuries may be minor but the psychological injuries major. Conversely, if the person did not see the approach of the motor vehicle, his or her injuries could be major but the psychological injuries minor.

55. If he were to rank Mr Lees' stressors, he would place the scare charges first followed by the boiler room incident and then the firing from the helicopters. Hepatitis was an aggravating factor. As hepatitis was not a precipitant factor and only an aggravating factor, he did not mention it in his third report, Dr Ewer said.

THE LEGISLATIVE FRAMEWORK

56. Sub-section 13(1) of the Act provides that, subject to the Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if his or her injury or disease was war-caused. The amount of that pension and the terms under which it is payable are determined by the Act. Pursuant to s. 70(1), the Commonwealth is liable to pay pension by way of compensation to a member of the Forces if he or she has become incapacitated from a defence-caused injury or defence-caused disease.

Provisions relevant to a consideration of whether a person has a disease or injury

57. The first step to consider is whether the veteran has the injury or disease he or she claims before consideration is given to whether any such injury or disease is war-caused (Repatriation Commission v Cooke (1998) 90 FCR 307, French, Drummond and Carr JJ). A "disease" is defined for the purposes of the Act as:

"(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b) the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c) the aggravation of such an ailment, disorder, defect or morbid condition; or

(d) a temporary departure from:

(i) the normal physiological state; or

(ii) the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels)." (s. 5D(1))

An "injury" is defined to mean:

"... any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a) a disease; or

(b) the aggravation of a physical or mental injury." (s. 5D)

58. In Benjamin and Repatriation Commission ([2001] FCA 522) Whitlam J underlined the need to consider whether the disease or injury is that claimed. This was approved by the Full Court of the Federal Court in Repatriation Commission v Budworth ([2001] FCA 1421, unreported, Ryan, Marshall and Conti JJ). That court went on to observe that the consideration means 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. ..." (paragraph 19)

59. The existence of the injury or disease from which the veteran claims to suffer must be established to the reasonable satisfaction of the decision-maker pursuant to s. 120(4). That is to say, it must be established on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17, Northrop, Beaumont and Spender JJ). This was determined by the Full Court in Repatriation Commission v Cooke which was approved by a differently constituted Full Court in Repatriation Commission v Budworth.

Provisions relevant to a consideration of whether the injury or disease is war-caused

60. The next issue to consider is whether the claimed injury or disease is war-caused. A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in s. 9. In so far as this case is concerned, only paragraph 9(1)(b) is relevant. It provides that:

"... for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) ...

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

61. The standard of proof which must be used in determining whether or not a veteran's injury or disease is taken to be war-caused is set out in s. 120. That section sets out two standards and which of those two is applicable depends upon whether the injury or disease is said to relate to a veteran's operational service or otherwise. As Mr Lees has operational service only, the standard set out in s. 120(1) is relevant.

62. Section 120(1) provides:

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

63. Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:

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

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

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

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

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

64. Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:

"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) ...;

(b) ...

that upholds the hypothesis." (s. 120A(3))

65. Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SOP under s. 196B(2) nor declared that it does not propose to make such a SOP in respect of the particular death or injury in issue.

66. The RMA must prepare a SOP in situations prescribed in the Act. In respect of cases to which s. 120(1) and (3) apply, it has the following role:

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

(a) operational service rendered by veterans; or

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

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

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

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

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

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (s. 196B(2))

67. Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:

"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(b) it arose out of, or was attributable to that service;"

68. "Sound medical evidence" has the meaning given in s. 5AB(2) (s. 5AB(1)):

"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

(a) the information:

(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."

69. The manner in which the provisions of s. 120(1) and (3) inter-related prior to the introduction of SOPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:

"The position may be summarised as follows:

(1) First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 571)

70. In relation to the first step, their Honours had earlier said:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:

'... a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)

71. The SOPs were introduced after the High Court's judgement had been handed down. The manner in which s. 120(3) and (4) inter-relate with the provisions of a SOP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission CLR 408 and Byrnes v Repatriation Commission, his Honour concluded:

" Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i) contrary to proved or known scientific facts,

(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii) since (1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

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

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

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)

72. In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in cases involving a SOP. It said:

"... we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:

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

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

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

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (pages 159-160)

73. The Full Court in Deledio divided the consideration of whether the material points to a hypothesis from whether that hypothesis is reasonable. As a later Full Court observed in McLean and Repatriation Commission [2001] FCA 1505, (Whitlam, Madgwick and Dowsett JJ):

"It will be seen that in Deledio the Full Court effectively broke into three steps, the two steps postulated by the High Court in Byrnes, by distinguishing between formulation of the relevant hypothesis and consideration of its reasonableness. However the Court did not suggest that there was any test to be applied to the identified hypothesis other than that of reasonableness." (paragraph 26)

Which Statements of Principle apply?

74. In Merrell and Repatriation Commission [2001] AATA 413 (Unreported, S A Forgie (Deputy President), 17 May, 2001) and Campbell and Repatriation Commission [2001] AATA 559 (Unreported, S A Forgie (Deputy President), I R W Brumfield and K P Kennedy (Members), 20 June, 2001), previous authorities of the Federal Court were considered. Since Campbell was decided, we note that the Full Court of the Federal Court has handed down its judgement on appeals from the judgement of Wilcox J in Williams v Repatriation Commission [2001] FCA 601 and Stone J in Gorton v Repatriation Commission [2001] FCA 286. Wilcox J agreed with Stone J. Appeals against their Honours' judgements were dismissed and the same principles were applied in each. Heerey J, with whom Emmett J concurred in Repatriation Commission v Gorton ([2001] FCA 1194, unreported, 29 August, 2001, Heerey, Emmett and Allsop JJ) concluded:

"43. ... Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which 'is in force': s 120A(3); see s 43 AAT Act. If the current SoP 'upholds' the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.

44. If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).

45. The claim for a pension under s 13 is in respect of death which was war-caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50."

75. Allsop J expressed a reservation as he considered that the phrase "is in force" as used in s. 120A(3) of the Act signified a Parliamentary intention that only the current SoP is relevant when either the Tribunal or the Commission makes its decision. He was, however, persuaded by other matters put forward by Heerey J and considered that Keeley should be followed and applied. His Honour considered that it did not decide all relevant matters and reached the same conclusion as Heerey J in the following way:

"63. However, Keeley did not decide that a SoP current at the date of the Tribunal's review undertaken pursuant to s 175 of the Act and s 43 of the AAT Act was not to be applied if it had not been in force at the time of the Commission's decision. Subsection 120A(3) makes it clearly compulsory for the Commission to examine the current SoP. In exercising the review under s 43 of the AAT Act I see no reason why the direction under subs 120A(3) does not bind the Tribunal. The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission's decision by force of the decision in Keeley.

64. Under s175 of the Act and s 43 of the AAT Act the Tribunal is to review the relevant decision. The decision which is the subject of review is the determination under s19 of the Act of a claim under s 14 of the Act based on entitlements set out in s 13 of the Act. It is not a review of a decision about a SoP. It is a review of a decision about an entitlement to a pension based on a causal connection between death or incapacity and service. There is no reason why that ultimate causal question may not be influenced or affected by more than one SoP. The condition of the veteran may raise different medical problems and so different SoPs. There is no violence done to the Act by requiring the Tribunal, in its review under s 175 of the Act and s 43 of the AAT Act of the question of the entitlement and the causal question bound up in that, to examine the current SoP (perforce of subs 120A(3) and s 43) and the repealed SoP (perforce of Keeley)."

Statement of Principle No. 1 of 2000 - Anxiety Disorder

76. At the time that the VRB made its decision on 27 July, 2000, SoP No. 1 ("SoP 1") had been in effect since 28 January, 2000. It had repealed SoP No. 48 of 1994 as amended by SoP No. 275 of 1995 ("SoP 48") which was in force when the Commission had made its decision on Mr Lees' claim. In view of the principles enunciated by the Full Court of the Federal Court in Gorton v Repatriation Commission, we will consider SoP 1 first and turn to the earlier SoP only if Mr Lees is unsuccessful when his claim is considered by reference to the current SoP. In view of the conclusions we have reached, we will set out the provisions of SoP 48 in this part of our reasons.

77. SoP 1 defines an "anxiety disorder" as:

"... the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia." (clause 2(b))

"ICD-10-AM code" is defined to mean "... a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3" (clause 8). A "generalised anxiety disorder" is defined to mean:

"... a psychiatric disorder with the following features:

A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:

(1). restlessness or feeling keyed up or on edge

(2). being easily fatigued

(3). difficulty concentrating or mind going blank

(4). irritability

(5). muscle tension

(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and

D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and

E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder." (clause 8)

78. Having stated that it is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder can be related to relevant service rendered by veterans, the RMA set out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person's service. In so far as they are relevant to the circumstances of Mr Lees' claim, the only relevant factor is the person's "... experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder" (clause 5(a)(ii)). That factor must be related to the relevant service rendered by the person (clause 4). The expression "severe psychosocial stressor" is defined to mean:

"... 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 a divorce or separation, loss of employment, major financial problems or legal problems."

A "major illness or injury" means "...a disease or injury that is life-threatening or seriously disabling" (clause 8).

79. SoP 48 does not define an "anxiety disorder" but defines only a "generalised anxiety disorder" in the following terms:

"'generalised anxiety disorder' means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 3000.02, and which meets the following description (derived from (DSM-IV):

(a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:

(i) the person finds difficult to control; and

(ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:

(A) restlessness or feeling keyed up or on edge;

(B) being easily fatigued;

(C) concentration difficulties or mind going blank;

(D) irritability;

(E) muscle tension;

(F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and

(iii) the focus of which is not confined to features of an Axis I disorder, for example, it is not about:

(A) having a Panic Attack (as in Panic Disorder); or

(B) being embarrassed in public (as in Social Phobia); or

(C) being contaminated (as in Obsessive-Compulsive Disorder); or

(D) being away from home or close relatives (as in Separation Anxiety Disorder); or

(E) gaining weight (as in Anorexia Nervosa); or

(F) having multiple physical complaints (as in Somatization Disorder); or

(G) having a serious illness (as in Hypochondriasis); and

(iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and

(v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) which is not due to the direct physiological effects of:

(i) a drug of abuse; or

(ii) a medication; or

(ii) a general medial condition (such as hyperthyroidism); and

(c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder." (clause 4)

80. Having stated that it is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder can be related to relevant service rendered by veterans, the RMA set out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person's service. In so far as they are relevant to the circumstances of Mr Lees' claim, the only relevant factor is the person's "... experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder" (clause 1(b)). That factor must be related to the relevant service rendered by the person (clause 2). The expression "stressful event" is defined to mean:

"... an occurrence which evokes feelings of anxiety or stress." (clause 4)

Statement of Principle No. 76 of 1998 - Alcohol Dependence or Alcohol Abuse

81. At all relevant times, SoP No. 76 of 1998 ("SoP 76"), which came into effect on 1 December, 1998, was the relevant SoP by reference to which the decision on Mr Lees' claim has been made and reviewed.

82. SoP 76 defines "alcohol abuse" as:

"... the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.

The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows

A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home

(2) recurrent alcohol use in situations in which it is physically hazardous

(3) recurrent alcohol-related legal problems

(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol

B. The symptoms have never met criteria for alcohol dependence.

The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.

Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0." (clause 2)

It defines "alcohol dependence" as:

"... the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of alcohol

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for alcohol

(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) alcohol is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6) important social, occupational or recreational activities are given up or reduced because of alcohol use

(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol." (clause 2)

83. The RMA stated that it is of the view that there are sound medical-scientific evidence indicating that alcohol abuse can be related to relevant service rendered by veterans. Subject to clause 6 of SoP 76, which is not relevant in this case, at least one of the factors listed in clause 5 must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person's relevant service. Of relevance in this case are that the person was:

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

(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". (clause 5)

84. The expression "psychiatric disorder" used in clause 5(a) is defined in clause 8 to mean "... any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV" (i.e. the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders). The expression "experiencing a severe stressor" used in clause 5(b) is defined to mean "... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror" (clause 8).

Statement of Principle No. 62 of 1999 - Gastro-oesophageal reflux disease

85. At all relevant times, SoP No. 62 ("SoP 62"), which came into effect on 27 August, 1999, was the relevant SoP by reference to which the decision on Mr Lees' claim has been made and reviewed. SoP 62 defines "gastro-oesophageal reflux disease" as the "... the presence of regurgitation of gastric content into the oesophagus together with resultant symptomatic and/or histologic evidence of oesophageal inflammation, attracting ICD-10-AM code K21" (clause 2(b)).

86. The RMA considered that there is sound medical-scientific evidence that indicates that gastro-oesophageal reflux disease can be related to relevant service of a person. It set out 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 with the circumstances of a person's relevant service. Those factors are subject to clause 6 of SoP 62 but that is not relevant in this case. The factor that is relevant to Mr Lees' claim is that he was:

"suffering from ... alcohol abuse and consuming alcohol at the time of the clinical onset of gastro-oesophageal reflux disease" (clause 5(g))

87. The terms "alcohol dependence" and "alcohol abuse" have been defined:

"'alcohol dependence' means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the continuing or past consumption of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour" (clause 8)

"'alcohol abuse' means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent" (clause 8)

CONSIDERATION

88. There was no question raised at the hearing that Mr Lees suffers from a generalised anxiety disorder and from gastro oesophageal reflux disease or that he abuses alcohol as defined in each of the relevant SoPs. In view of that we are satisfied on the material that he is suffering from each of the three conditions. The issue that we must decide is whether each is a war-caused disease within the meaning of the Act.

89. We will consider first Mr Lees' generalised anxiety disorder as the hypotheses advanced in relation to the other two conditions he claims are dependent, in part, upon his generalised anxiety disorder's being a war-caused disease. The effect of Mr White's submissions was that he advanced the following hypothesis connecting Mr Lees' generalised anxiety disorder and his operational service: Mr Lees' experienced one or more severe psychosocial stressors while on operational service and suffered the onset of his generalised anxiety disorder within two years of his experiencing one or more of those stressors. There is material in the form of Mr Lees' evidence to his suffering each of the three incidents put forward by him as stressors i.e. the scare charges, the boiler room incident and the firing from helicopters. Mr Lees' evidence also points to two of the incidents (scare charges and firing from helicopters) as occurring during his operational service while on the Sydney. His evidence does not point to the boiler room incident occurring during his operational service as he did not know where the Duchess was when the incident occurred. It was not the case that Mr Lees said that the incident might have occurred while he was on operational service on the Duchess. Had that been his evidence, there would have been material pointing to its occurring at that time. As he did not know when it occurred, we can say that there is material that it occurred but we cannot take the further step and say that there is material pointing to its having occurred on operational service. If we are incorrect in this view, we note that the following paragraphs expressing our reasons and decision in relation to the scare charges and firing from helicopters apply equally to the boiler room incident.

90. Taking the scare charges and the firing from helicopters, is there material pointing to each occurrence's evoking feelings of substantial distress in Mr Lees i.e. to his suffering from a severe psychosocial stressor as defined in SoP 1? The definition gives examples of what is meant by "substantial distress" (see paragraph 78 above). Those examples cover a wide range of human experience but, taking the definition as a whole, are not intended to limit the identifiable occurrences that may be regarded as severe psychosocial stressors. The focus of the definition is upon an identifiable occurrence that evokes feelings of substantial distress in an individual. If such feelings are evoked by an identifiable occurrence in an individual it is a severe psychosocial stressor regardless of whether such feelings would be evoked in another individual by the same occurrence. The same can be said of the examples that are given. People behave in different ways to any given set of circumstances and what may cause substantial distress to one may not do so to another.

91. There is evidence pointing to Mr Lees' experiencing feelings of substantial distress when both the scare charges exploded and when there was firing from the helicopters. That material is in his own evidence that he was frightened and extremely anxious. In the case of the scare charges, this was an ongoing state of mind as the scare charges continued to be exploded. In the case of the firing, he felt that he was under some threat and was again extremely anxious. In both cases, there is material pointing to each occurrence evoking feelings of substantial distress in Mr Lees. There is, therefore, material pointing to Mr Lees' experiencing a severe psychosocial stressor while on operational service.

92. That brings us to consider whether there is material pointing to the clinical onset of Mr Lees' generalised anxiety disorder within two years immediately after he experienced the severe psychosocial stressors as required by clause 5(a)(ii) of SoP 1. The particular anxiety state upon which the hypothesis is based is generalised anxiety disorder. The effect of the definition of a "generalised anxiety disorder" is that Mr Lees must have shown the symptoms described in that definition within two years of experiencing either the firing from the helicopters or the scare charges. There is material in the form of Dr Ewer's evidence pointing to Mr Lees' suffering from a high level of anxiety, experiencing tension headaches and was troubled by insomnia and poor concentration. That material, however, only points to his suffering from them in the months immediately preceding Mr Lees' discovering that his hepatitis was not hepatitis A as he had previously thought but hepatitis B. Mr Lees' evidence provides material pointing to his suffering from excessive anxiety and worry about the scare charges and the firing from the helicopters at the time of their occurrence. In the case of the scare charges, his evidence provides material pointing to his suffering excessive anxiety and worry every time a scare charge was exploded. Whether his evidence extends to providing material pointing to his suffering that anxiety and worry on more days than not for a continuous period of at least six months is questionable.

93. Whether it does so or not, his evidence does not extend to his suffering from the other features of a generalised anxiety disorder referred to in the definition of that expression in clause 8 of SoP 1 during any six month period in the two years following the scare charges or the firing from the helicopters. The features are cumulative and so the material must point to his suffering from all of them in the two years after his experiencing the severe psychosocial stressors before it can be said that there is material pointing to the clinical onset of his generalised anxiety disorder in the relevant period. Mr Lees' evidence focused on his drinking to make him feel better in that period but, in particular, does not focus on his suffering from three or more of the six symptoms listed in paragraph C of the definition in clause 8 i.e. restlessness or feeling keyed up or on edge, being easily fatigued, difficulty concentrating or mind going blank, irritability, muscle tension, difficulty falling or staying asleep or restless unsatisfying sleep (see paragraph 77 above). There is material pointing to Mr Lees' suffering from impairment in social areas of functioning as described in paragraph E during that time and it takes the form of his evidence that he generally avoided people socially and chose to drink alone.

94. As we are of the view that there is no material pointing to the clinical onset of Mr Lees generalised anxiety disorder within two years of the stressors we have identified (including the boiler room incident), we are of the view that the hypothesis advanced by Mr Lees is not consistent with SoP 1. It is not, therefore, a reasonable hypothesis.

95. As Mr Lees' claim is not successful when considered in light of SoP 1, we must turn to the earlier SoP 48. There are differences between the two SoPs but none that leads to a different result when regard is had to SoP 48. The definitions of "generalised anxiety disorder" in each SoP are substantively consistent with each other even though there are variations in expression. While SoP 48 contains the less rigorous requirement of a "stressful event", as opposed to a "severe psychological stressor" required by SoP 1, in the circumstances of this case, the variation is of no consequence. There is material pointing to Mr Lees' experiencing a stressful event, as there is material pointing to his experiencing a "severe psychological stressor" (see paragraph 89 above). The issue remains whether there is material pointing to the clinical onset of his generalised anxiety disorder within two years of the "stressful event". It follows that we have reached the same conclusion when considering the hypothesis in light of SoP 48 as we did when doing so in light of SoP 1. There is material pointing to his suffering excessive anxiety and worry about the scare charges and the firing from the helicopters at the time of their occurrence. Whether his evidence points to that excessive anxiety and worry occurring more days than not for at least six months is again questionable (clause 4(a) SoP 48). Even if there is such material, there is insufficient material pointing to his anxiety and worry being associated with three or more of the six symptoms listed in clause 4(a)(ii). We have already set out our reasons for that conclusion in paragraph 93 above in relation to SoP 1. As with SoP 1, we are of the view that the hypothesis advanced by Mr Lees is not consistent with SoP 48 and is, therefore, not a reasonable hypothesis.

96. The second hypothesis advanced on behalf of Mr Lees was, in essence, that either he suffered a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse or that one or other of the three incidents, or all of them, occurred while he was on operational service, were severe stressors and led to his either abusing alcohol or becoming dependent upon alcohol within two years of their occurring. For the reasons we have given, we do not consider that there is a reasonable hypothesis connecting Mr Lees' generalised anxiety disorder with the circumstances of his service within the meaning of s. 9. Therefore, we have not considered factor 5(a) of SoP 76 further. With regard to the three incidents, in the context of factor 5(b), for the reasons we have already given, we do not consider that there is material pointing to the boiler room incident's having occurred while he was on operational service although there is material pointing to the other two incidents' having done so. If we are incorrect in this view, our reasons in relation to the other two incidents apply equally to the boiler room incident.

97. Is there material pointing to Mr Lees' experiencing a severe stressor when either the scare charges exploded or the firing from the helicopters occurred? Taking first the scare charges, there is material pointing to their exploding being a threat to the physical integrity of divers who are in the water. Some of that material is in the evidence of Mr Lees but it is more fully found in the evidence of Dr Carroll, who said that scare charges could play havoc with a diver's eardrums and could be fatal. There is also material that the firing from the helicopters was an incident that involved a threat to a person's physical integrity if not the actual or threat of death or serious injury. That material is found in Mr Lees' evidence.

98. There is material pointing to Mr Lees' beginning to drink alcohol to make himself feel better. Why he needed to feel better was due to a variety of reasons, two of which related to his fears and concerns arising from the incidents, which are severe stressors.

99. Is there material pointing to the clinical onset of Mr Lees' alcohol abuse within two years of these incidents? There is no material pointing to his suffering from a maladaptive pattern of alcohol use leading to his continued use of alcohol despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol. The furthest that his evidence goes is that he began to drink and would drink largely on his own. It does not go so far as to say that Mr Lees' drinking on his own was caused or exacerbated by the effects of alcohol. It does not go so far as to say that his recurrent use of alcohol within the relevant two year period resulted in his failure to fulfil major role obligations at work or home or that he had recurrent alcohol-related problems. There is material pointing to Mr Lees' drinking alcohol while on board the Sydney and the Duchess but there is no material pointing to his doing so in physically hazardous situations. There is no material pointing to being on a ship always being a situation of physical hazard. As SoP 76 requires that Mr Lees suffered the clinical onset of alcohol abuse within two years of his suffering the severe stressors, it follows that we do not consider that the hypothesis is consistent with SoP 76 in so far as it raises alcohol abuse.

100. Is there material pointing to Mr Lees' suffering the clinical onset of alcohol dependence within two years of these incidents? Is there material pointing to his suffering from a maladaptive pattern of alcohol use leading to clinically significant impairment or distress as manifested by three or more of the features set out in the definition of "alcohol dependence" in clause 2(b) of SoP 76? There is material, in the form of Mr Lees' evidence, that he began to drink alcohol while on the Sydney and that the amounts increased. He did not specifically address the question whether he needed to increase the amounts to achieve intoxication or a desired effect or whether he found a markedly diminished effect with the same amount of alcohol. There is only the evidence that his drinking increased.

101. Mr Lee's evidence cannot be read as pointing to his often drinking alcohol in larger amounts than was intended or over a longer period than was intended. There was no evidence as to his intentions. Nor was there any evidence as to any effects that he suffered on withdrawing from alcohol or whether he attempted to drink further alcohol or take other steps to avoid withdrawal symptoms. The evidence did not raise any material as to whether he desired or attempted to reduce his intake of alcohol or to control it. Mr Lees gave evidence about the manner in which he obtained alcohol while still underage but it does not go so far as to amount to material pointing to his spending a great deal of time in activities necessary to obtain it, use it or recover from its effects. His evidence did not contain material pointing to his continuing to use alcohol despite his having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.

102. Mr Lees said that he drank alone. Whether this is sufficient to amount to material pointing to his giving up or reducing important social or recreational activities is questionable. Even if it is, it is not sufficient to amount to material pointing to the clinical onset of Mr Lees' alcohol dependence within two years of his experiencing the severe stressors. That is so as the material points to only one of a minimum of three factors that must be met if Mr Lees' hypothesis is to be consistent with SoP 76. As it is not consistent with SoP 76 in relation to either alcohol abuse or alcohol dependence it cannot be regarded as a reasonable hypothesis.

103. That brings us to the third hypothesis relating to Mr Lees' gastro oesophageal reflux. In essence, it is that Mr Lees suffered alcohol dependence or alcohol abuse as a result of his operational service and so his condition is war-caused. As he continued to suffer from one or other of those conditions at the time of the clinical onset of his gastro oesophageal reflux, his gastro oesophageal reflux is also connected with the circumstances of his operational service and so is war-caused.

104. There is material pointing to Mr Lees having suffered alcohol abuse or alcohol dependence at the time of the clinical onset of his gastro oesophageal reflux. It is not enough, though, that there is that connection for that connection must also be relevant to Mr Lees' operational service. That is the effect of clause 5 of SoP 62 but is also consistent with s. 9(b) of the Act requiring that the disease contracted by the veteran must arise out of, or be attributable to, any eligible service rendered by that veteran. This means that there must also be material pointing to Mr Lees' alcohol dependence or alcohol abuse having arisen out of, or been attributable to, Mr Lees' operational service before it can be said that there is material pointing to his gastro oesophageal reflux having done so. Alcohol dependence and alcohol abuse are defined in SoP 62 in terms identical with those used in SoP 76 except in so far as those definitions do not specify the diagnostic criteria specified in DSM-IV. Despite the omission of the specification of the diagnostic criteria in SoP 62, it seems to us that the terms are intended to refer to the same condition and the manner of assessing whether or not there is material pointing to the conditions of alcohol dependence and alcohol abuse is by reference to the diagnostic criteria used in DSM-IV. As we have reached the view that there is no material pointing to his alcohol dependence or alcohol abuse having the relevant connection with his service in the context of considering his hypothesis that either or both of those conditions is war-caused, we have reached the view that there is no material pointing to its having done so in considering his claim for gastro oesophageal reflux. As the factor of his suffering alcohol dependence or alcohol abuse must have the relevant connection with his operational service before it can be said that there is a reasonable hypothesis connecting Mr Lees' gastro oesophageal reflux with his operational service, we are of the view that the hypothesis he proposes is not reasonable as it is not consistent with SoP 62. Therefore, we have concluded that Mr Lees' gastro oesophageal reflux is not war-caused within the meaning of the Act.

105. For the reasons we have given, we affirm the decisions of the respondent dated 15 April, 1999 and 13 December, 1999.

I certify that the one hundred and five preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President) and

Mr D J Trowse (Member)

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

Clancy Riddiford Associate

Dates of Hearing 19 and 20 November, 2001

Date of Decision 15 February, 2002

Counsel for the Applicant Mr White

Solicitor for the Applicant Tindall Gask Bentley

For the Respondent Mr Doube, departmental advocate