Cooke and Repatriation Commission [2003] AATA 100 (4 February 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/999

VETERANS' AFFAIRS DIVISION	)
	Re	Graham Robert Cooke

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

P.J. Lindsay, Senior Member, Dr P. Lynch, Member

Date 4 February 2003

Place Sydney

Decision

The Tribunal affirms the decision under review refusing the claim for post traumatic stress disorder as a war-caused disease.

(sgd) P. J. Lindsay

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - disability pension - operational service -- diagnosis of psychiatric symptoms - whether post traumatic stress disorder properly diagnosed - whether dysthymic disorder war-caused - decision affirmed.

Veterans' Entitlement Act 1986, ss. 9, 120, 120A, 196B

Repatriation Medical Authority Statements of Principles:

- Instrument No. 15 of 1994 concerning Post Traumatic Stress Disorder as amended by Instrument No. 225 of 1995

- Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder as amended by Instrument No. 54 of 1999.

- Instrument No. 58 of 1998 concerning Depressive Disorder.

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hill [2002] FCAFC 192

Fogarty v Repatriation Commission [2002] FCA 1541

Repatriation Commission v Budworth (2001) 66 ALD 285

Benjamin v Repatriation Commission (2001) 34 AAR 270

Re Howe and Repatriation Commission [1999] AATA 1006

O'Neil v Repatriation Commission (2001) 34 AAR 290

Re Freeman and Repatriation Commission [2000] AATA 727

Re Budworth and Repatriation Commission [2000] AATA 127

Re Powell and Repatriation Commission[2000] AATA 385

Repatriation Commission v Gorton (2001) 65 ALD 609

REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr P. Lynch, Member.

1. This is an application under the Veterans Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Cooke's claim for acceptance of post traumatic stress disorder (PTSD) as a war-caused disease under the Act. The decision was affirmed by the Veterans' Review Board (the Board).

2. Ms J. Buchanan, solicitor, appeared for Mr Cooke. The Commission was represented by Mr J. Marsh from the Department of Veterans' Affairs (the Department). Mr Cooke was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and the exhibits tendered at the hearing.

BACKGROUND

3. Mr Cooke, who was born on 11 July 1940, served in the Royal Australian Navy from 28 April 1958 to 27 April 1967 and from 13 September 1967 to 20 April 1979. Mr Cooke has periods of operational service in the Far-East Strategic Reserve in HMAS Anzac as follows:

* 25 March 1959 - 28 April 1959: Malaya to Singapore

* 12 May 1959 - 9 June 1959: Malaya to Singapore

* 18 June 1959 - 17 August 1959: Malaya to Singapore

* 31 August 1959 - 9 September 1959: Malaya to Singapore

* 18 September 1959 to 10 October 1959: Malaya to Singapore

* 16 November 1959 - 5 December 1959: Malaya to Singapore

He also rendered operational service while serving in HMAS Yarra from:

* 22 February 1970 - 1 March 1970: Vietnam

* 22 February 1971 - 1 March 1971: Vietnam

4. On 8 April 1997, Mr Cooke lodged an application with the Commission for disability pension for incapacity from chronic airflow limitation, bi-lateral sensorineural hearing loss, PTSD, lumbar spondylosis and haemorrhoids. Mr Cooke noted in the claim form that he first became aware of his PTSD in 1980. On 10 July 1997 the Commission refused his claim for PTSD, lumbar spondylosis and haemorrhoids on the grounds that the conditions were not war-caused. Mr Cooke applied to the Board for review of the decision refusing his claim for incapacity from PTSD. The Board affirmed the Commission's decision.

5. In opening, Ms Buchanan said the Applicant's case was that, prior to his periods of operational service in Vietnam, he experienced a number of stressful incidents. Ms Buchanan said that Mr Cooke had latent PTSD as a result of those incidents and clinical onset of PTSD was triggered by his periods of service in Vietnam. Support for this contention was found in the report of Dr Dinnen, consultant psychiatrist, dated 5 March 2001 (T15), in whose opinion clinical onset of PTSD occurred after Mr Cooke returned from his second period of service in Vietnam. Ms Buchanan urged the Tribunal to regard the Applicant as a "damaged person" due to the impact on him of those incidents prior to his operational service in Vietnam. Ms Buchanan referred to an hypothesis connecting Mr Cooke's experiences while on operational service in Vietnam with the clinical onset of PTSD.

6. For the Commission, Mr Marsh outlined a case that disputed a diagnosis of PTSD. Relying on the opinion of Dr Haik, consultant psychiatrist, dated 1 November 2001 (Exhibit R2), Mr Marsh said that the appropriate diagnosis was dysthymic disorder. Alternatively, if PTSD was the appropriate diagnosis, the Commission argued that it was not war-caused.

7. Mr Cooke's claim for pension in respect of PTSD relates to his operational service in Vietnam and accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. Subject to determining whether Mr Cooke is suffering from PTSD, pursuant to s.120(1) a decision-maker will determine PTSD to be war-caused unless the decision-maker is satisfied beyond reasonable doubt that there is no sufficient grounds for making that determination. The decision-maker will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting that psychiatric condition with the circumstances of Mr Cooke's service: s.120(3). Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the decision maker is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA). The parties disputed which SoP applies.

8. In reviewing the decision in question, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:

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

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

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

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

However, as this is a matter where there is a dispute as to whether Mr Cooke suffers from PTSD, a preliminary issue arises. The Tribunal must initially address the question whether Mr Cooke suffers from a disease and, if so, what disease: Repatriation Commission v Hill [2002] FCAFC 192 at [61], Fogarty v Repatriation Commission [2002] FCA 1541 at [14], Ryan J.

EVIDENCE

9. Mr Cooke said that in his career with the Navy, he advanced from being a mechanical engineer, to leading engineer and was promoted in 1968 to Petty Officer Mechanical Engineering and, ultimately, to Chief Petty Officer in 1976 with 150 men under his control. By the time of his first period of service in Vietnam in 1970 he had been in the Navy for almost twelve years.

10. He gave evidence about three incidents that happened prior to his two periods of service in Vietnam. He confirmed the accuracy of the following history (T15) he gave Dr Dinnen who prepared a psychiatric assessment at the Board's request:

The patient proceeded to describe the circumstances of his naval career. He had joined in 1958 at the age of 17. At that time he didn't smoke or drink. By the time that he went to Vietnam he had been involved as he described it, in three major incidents.

The first was when he was serving on HMAS Anzac and it was berthed at Garden Island in Sydney. The Woombera [sic] blew up outside Sydney Harbour. It was carrying ammunition and was sinking. They were sent out to pick up survivors. This was in about 1960.

He had operational service in Malaya on Anzac for about 11 months from 1959 to 1960. However he did not consider that this was particularly stressful either at the time or in retrospect. When I questioned him about the nature of that service, later in the interview he said it was `no problem'. The Anzac was shelling the islands. He was younger at the time and it didn't bother him. He confirmed that part of their duty was to intercept vessels, usually junks, who were gun running near Borneo. He was not involved in boarding or intercepting the ships and remained on board as a stoker.

The second incident he mentioned was on exercises with Anzac and they accidently shelled and holed the Tobruk. This was in about 1960 or 1961. There were no casualties and they towed the Tobruk back to port.

The third incident was when he was serving on HMAS Stuart in 1964. The Voyager was sunk and they arrived on the scene half an hour later. He saw the second half of the Voyager sink. He was over the side on a motor cutter. The patient became more intense, pressured and objectively more emotional and distressed as he started to talk about these matters ... .

11. In relation to the first incident, Mr Cooke said in evidence that he was then serving in HMAS Anzac which at the time was berthed at Garden Island, Sydney. Anzac was requested to attend the scene and assist. Mr Cooke said he knew many of the crew of about sixteen aboard Woomera, half of whom were killed. He described it as a stressful time, "but it wasn't a big deal".

12. Mr Cooke described the second incident, which he thought happened in early 1961 or 1962. He was serving in HMAS Anzac, which was taking part in a practice exercise with HMAS Tobruk, during which Anzac accidentally fired a dummy shell that hit Tobruk causing it to take water. He saw Tobruk listing. It had to be towed back to port. Mr Cooke said there were no casualties and the incident did not concern him particularly.

13. As to the Voyager incident, Mr Cooke said his task was to drive a motor cutter around the scene, looking for survivors in the sea or life rafts. He said some life rafts did not fully inflate, thus requiring him to feel around in the life raft for bodies. He also had to free the cutter's propeller when tangled with the life rafts. His evidence was that he did not sight any survivors or any bodies but he said he collected a lot of flotsam including personal effects. He said he knew a lot of the crew of the Voyager and knew 30 of the 83 who were killed.

14. Mr Cooke said that, although each incident was stressful, he did not think much about it at the time. He explained that at the time of the Voyager incident he was only about 24 years old.

15. After a term of nine years in the Navy, Mr Cooke entered civilian life for a few months from April 1967. It was during this period that he met his wife. He re-enlisted in September 1967 hoping to be posted to Melbourne, his wife's home city. At the time of the re-enlistment medical examinations, he could not recall informing the doctors about any psychiatric or emotional problems. He subsequently attended a training course at HMAS Cerberus which led to a promotion to petty officer and then a posting to HMAS Yarra.

16. While he was serving in HMAS Yarra it twice escorted HMAS Sydney in Vung Tau harbour, Vietnam. He said the following history obtained by Dr Dinnen was accurate (T15):

Later in the interview the patient told me that the Yarra spent approximately 24 hours in port on each visit to Vietnam. Stun grenades were put over the side frequently. It seemed to him as if they were exploding every five minutes. He explained the importance of this activity to prevent enemy divers from attaching mines to the vessels. They knew that this realistically was a major threat rather than any other form of attack. The engines were going throughout the time they were in harbour to make circumstances much more hazardous for any enemy divers. There were riflemen on the deck shooting at the logs floating past, which were supposedly used as cover by the enemy divers. The scene with helicopters flying back and forth was very much that of a war zone.

17. In his evidence Mr Cooke said that, during both his periods of service in Vietnam, his job was in the engine room where as Petty Officer Mechanical Engineering, equivalent to a non-commissioned officer, he was in charge of the damage control team. Approximately fifteen sailors, stokers and electrical personnel, were under his command. He said that the engine room was located in a watertight compartment at the very base of the ship and was known as "the hole".. He said Yarra was closed up at stage 2 action stations and ready for any enemy action, whether bombs or mines. He and his team were wearing their anti-flash protective uniforms. He told the Tribunal that he used to carry out simulated exercises all the time and that he thought he was pretty good at his job.

18. While he was in the engine room Mr Cooke heard loud, underwater explosions in the harbour near his ship. He agreed with the following summary regarding the use of scare charges, which was written by Commodore Mulcare in an historical report dated 21 February 2002 that was prepared for the Commission in relation to this application (Exhibit R1):

The scare charges used in the late 1960s/early 1970 were either a one and a quarter or a one-pound demolition charge fitted with a percussion fuse. Thrown overboard from a destroyer escort a scare charge would explode at a depth of about six metres. They exploded a little deeper when thrown from ship's boats. A scare charge explosion causes death or serious injury to divers in the near vicinity and causes disorientation at much greater ranges. The sound of a scare charge explosion is typically a loud thud but it varies with, amongst other things, distance from the ship, depth of water, depth of explosion and the characteristics of the seabed. The sound is much sharper and louder in compartments below the waterline.

19. He said the noise was terrifying. The noise reverberated around the machinery in the engine room and was pretty deafening. He knew that the explosions, scare charges, that went off intermittently, were intended to kill or harm enemy divers. Dropping scare charges was part of the ship's standard precautionary measures known as Operation Awkward. He said the ship's company had been told that scare charges would be used but not the times when they would go off. Due to his location in the ship and his responsibility for extinguishing fires and preventing flooding, he was thinking all the time of different scenarios of what might happen. He thought of Yarra's pipes bursting. Hearing the charges brought back a lot of memories. He told the Tribunal that at the time he had two young children and having seen what had happened to Voyager and in the other two incidents, he knew it was a very real possibility that something could happen and he would be among the very last to get out of the ship. He thought about what it must have been like on the Voyager, which he said was hit in the middle machinery spaces. Every time a charge went off he was thinking that maybe there was hole in the ship. Mr Cooke said he was prepared for any eventuality.

20. He told the Tribunal that he had been exposed to scare charges and depth charges previously, but he said that was at sea, where conditions were very different. He explained that, although he had been trained and participated in the precautionary Operation Awkward drills and used to teach fire fighting, conditions at anchor in Vung Tau harbour were different to the simulated exercises he was familiar with. Under cross-examination he did not dispute Yarra's Report of Proceedings (RoP) (Exhibit R1) that recorded the use of scare charges in February 1971 in Operation Awkward exercises held off Singapore. He told the Tribunal that he had been trained to react quickly in the event of damage to his part of the ship.

21. During one of his two periods in Vung Tau harbour, Mr Cooke said he left his post in the engine room and sneaked onto the deck for a few minutes. He said he saw many helicopters flying overhead and heard gun fire. He said that Yarra was about 100 yards from shore and he saw tracer fire and puffs of smoke after weapons had fired. He said he saw sailors on the deck with rifles. Mr Cooke saw them firing at logs floating in the harbour. In cross-examination, he agreed that all the helicopters were `friendly' and that their main function would have been to unload HMAS Sydney, though some may have had a defensive role.

22. On his return from Vietnam, Mr Cooke was given a shore posting. He was president of the petty officers' mess, a position he held for about eighteen months. It gave him ready access to alcohol. He started to drink very heavily and this led him into disciplinary problems for drinking while at work and fighting. He attributed a five year delay in being promoted to his excessive drinking. His wife left temporarily because he became abusive at home. He said he was very happy before he went to Vietnam but on his return, he became argumentative and drank more. His next promotion was to regulating engineer and later he occupied an instructor's position, dealing with the damage control issues arising out of nuclear and biological conflicts. He told the Tribunal that this role did not cause him any nightmares. Ultimately in 1976 he was promoted to Chief Petty Officer.

23. In April 1979 Mr Cooke left the Navy. He and his family moved to Parkes, in country New South Wales. He found steady employment and remained with one employer, a services club, for twenty-two years. His family life was not happy. In 1987 his 18 year old son was tragically killed in an accident. He said he had ordered his son to leave home, which was the last time he saw him, because the son was killed three months later. His daughter is now estranged from him, denying him the opportunity to enjoy his grandchildren's childhood. His wife separated from him in 1996 and they divorced two years later.

24. In evidence Mr Cooke said he is a daily drinker, who starts his drinking around 3pm. His consumption has increased since he left employment. Since 1999, he has taken Aropax, an anti-depressant, every day but he added it is not a high dosage. He also takes medication to deal with a blood pressure problem.

25. Mr Cooke told the Tribunal that it was around the time of his marriage break-down that he first saw a psychiatrist. He described his mental state at the time as `grief problems'. He believes he began seeing Ms Andrea Grom for psychological counselling in this period. Initially, he saw her on a monthly basis but has not consulted her for a couple of years.

26. In May 1997 Dr Whitmill G.P. completed the medical impairment assessment that was submitted to the Department in support of Mr Cooke's claim for pension (T5A). The assessment noted the Applicant's symptoms of PTSD as nightmares, flash backs, intermittent depression, increased alcohol intake with peer group, relationship problems due to wife's leaving him, and that he talked a lot about his difficulty in maintaining relationships. Dr Whitmill commented that Mr Cooke's condition caused him problems at work and within his family leading to the poor relationship with his daughter, that he was a loner who found he could not socialise well after his separation and that he became agitated in groups. Dr Whitmill observed that Mr Cooke's depression, agitation and anger interfered with his ability to cope in every day situations.

Commodore Mulcare

27. Commodore Mulcare's report of 21 February 2002 (Exhibit R1) noted that HMAS Melbourne collided with HMAS Voyager at about 9pm on 10 February 1964. The forward part of Voyager sank soon after, and the remaining part sank just after midnight. HMAS Stuart was about 20 miles away when notified of the collision, about an hour and twenty minutes after it happened. Stuart arrived at the collision scene at 11.45 pm. Commodore Mulcare's report, which was based on the report of the Royal Commission into the loss of HMAS Voyager, stated:

During the search, Stuart recovered some life rafts, boats and small pieces of debris but she did not sight any survivors or any bodies. By February 1964 the Veteran had been an ME1 (Able Seaman rank) for some four years and he could well have been a member of Stuart's boats crew for at least part of the time Stuart was engaged in the search for Voyager survivors. However there is no evidence to suggest that, while Stuart was searching, Voyager survivors drowned because their life rafts were sinking, or that personnel from Voyager lost their lives because Stuart's motor cutter had a fouled propeller.

28. In relation to HMAS Yarra's escort of HMAS Sydney in Vung Tau Harbour, Commodore Mulcare noted from the RoP by Yarra's captain, that Yarra anchored at Vung Tau at 6:30am on 27 February 1970 and weighed anchor at 10:30am that day. The following year, Yarra anchored in Vung Tau harbour at 7:01am on 25 February 1971 and weighed anchor the same day at 2:45pm. His report further noted that the principal threat to ships at anchor off Vung Tau was considered to be from enemy divers or floating mines. There was a concern that swimmers could approach the ships while covered by debris or could attach submerged mines to the ship. Although the threats did not materialise over the years that Navy ships visited Vung Tau, such threats were taken seriously and defensive measures known as Operation Awkward were established. The throwing of scare charges overboard from the ship or patrol boats at random intervals was one such measure, as were the searching of the ship's anchor cable and hull by divers from the ship and having armed sentries posted on the upper deck to watch for signs of suspicious activity.

29. The Yarra's RoP for 27 February 1970 noted that patrol boats were sent out and divers searched the anchor cable on several occasions. Captain P. J. Hugonnet, the Yarra's Marine Engineering Officer, has stated (Exhibit R1) that he has no recollection of scare charges being thrown while Yarra was in Vung Tau in 1970 but allowed that charges may have been used when divers were out of the water. Captain Hugonnet noted "the entire episode uneventful".

30. Commodore Mulcare reported that by 1971 the practice of dropping scare charges near HMAS Sydney had ceased. During the February 1971 deployment, Yarra was anchored in Vung Tau for almost eight hours, and remained at defence stations and assumed Operation Awkward State 2. Neither the Yarra's commanding officer in 1971, Commodore Baird, nor Commodore Peterson, the Torpedo Anti-submarine Officer, could recall scare charges being used during this visit. Commander Eddes, Yarra's Diving Officer at the time, has written (Exhibit R1) "To the best of my recollection, no scare charges were detonated by Ship's personnel during the period, and I cannot recall hearing the sound of scare charges being detonated in the audible vicinity of the anchorage." Commodore Baird recalls that his principal concern was the welfare of his divers and he believes he would have reserved for himself the decision to use scare charges.

31. Commodore Mulcare points out that by 1970 Mr Cooke had over six years service in destroyer escorts and would have heard numerous underwater explosions before he went to Vung Tau in 1970, ranging from hand grenades used to signal submarines during anti-submarine exercises, to live firings of mortars which would be loud, particularly for personnel in the engineering spaces and others below the water line.

32. During cross-examination, Mr Marsh put questions to Mr Cooke as to the truth of his evidence regarding the three incidents, including the history obtained by the psychiatrists who have examined him. In this regard Mr Marsh referred to Commodore Mulcare's report (Exhibit R1) wherein he stated that HMAS Anzac took no part in proceedings to assist HMAS Woomera. Mr Cooke explained the apparent discrepancy by pointing out that Anzac was being prepared to sail to the scene but by the time it was ready to leave port, its help was no longer required. Mr Cooke was reminded that Dr Dinnen recorded that Mr Cooke spent 24 hours in port at Vung Tau on both occasions. Mr Cooke agreed that, having regard to the RoP by Yarra's captain (Exhibit R1) Yarra was in Vung Tau for four hours on 27 February 1970 and about eight hours on 25 February 1971. Mr Cooke also agreed that, by the time of his first period of service in Vietnam, he was an experienced, senior sailor. He had practised defence procedures, including Operation Awkward. However, he maintained that his practice had always been at sea, under different conditions to Vung Tau harbour. Mr Cooke conceded that the caption to a photo of HMAS Sydney at anchor in Vung Tau harbour (Exhibit A2), on a date unknown, stated that the vessel was anchored 1,100 yards from shore. He agreed that Yarra was at anchor to the seaward of Sydney and would therefore have been more than 1,100 yards off shore, not 100 yards as he said in chief.

Dr Waddy

33. After Mr Cooke lodged his pension claim form regarding PTSD, the Department referred him to Dr Waddy for psychiatric assessment. On 26 May 1997, Dr Waddy reported that Mr Cooke complained of feeling irritable, depressed and alienated, unable to talk to people, anxious and reclusive. She reported that he did not have a close family, his father, an itinerant worker, was seldom at home and his mother had to work to support the family. Dr Waddy noted that "he felt a misfit within his own family" (T6). The history obtained from Mr Cooke about the Voyager incident was as follows:

In 1962 he was serving on HMAS Stewart and it was from this ship that he was sent to help rescue the injured and drowning sailors from Voyager. He describes his experience with suppressed emotion, explaining his difficulties leaning over the side of his small craft with his head submerged attempting to free the stalled propellor with men drowning around him.

34. Dr Waddy noted that Mr Cooke said he was a restless sleeper and that:

Every few weeks [he] has a nightmare always involving not being able to get out of the water onto his ship, a re-creation of his experience rescuing victims of the Voyager disaster in 1962. He often ruminates on this experience wondering what more he could have done, seeing again the semi-inflated rafts sinking with the victims while he was overboard trying to free the fouled propeller of his rescue craft. These guilts and guilts about the death of his 18 year old son in a motorcycle accident ten years ago often preoccupy him.(T6)

Dr Waddy reported that Mr Cooke's level of drinking increased substantially after the Voyager incident.

35. Dr Waddy diagnosed PTSD by reference to DSM IV, 309.81. Dr Waddy suggested that Mr Cooke contact the Vietnam Veterans' Counselling service. Dr Waddy proposed sending a copy of her report to his G.P, but Mr Cooke declined the suggestion, her impression being that Mr Cooke saw little possibility of external intervention relieving his symptoms.

36. In cross-examination, Mr Cooke agreed that Dr Waddy appears to have understood his involvement to have included pulling bodies from the water, which he said was not the case. Mr Cooke also agreed that her report was incorrect in stating that "men [were] drowning around him". He said that if Dr Waddy's report noted something, then he must have told her that. However, he maintained he did not provide her with a misleading account of his involvement in the Voyager incident, reasoning that Dr Waddy must have misunderstood him.

Dr McClure

37. In April 1999, Mr Cooke was referred to Dr McClure, consultant psychiatrist, by Dr Whitmill. Dr McClure reported Mr Cooke's belief that his current symptoms dated back to his service but also noted that "his symptoms have been markedly exacerbated by the breakdown of his marriage and the more recent departure of his daughter. He misses his grandchildren greatly. He now has `no one', as his biological family are mostly located in Sydney and Newcastle".

38. Dr McClure took a history of Mr Cooke's involvement in the Voyager incident. Contrary to the history obtained by Dr Waddy, Dr McClure noted that HMAS Stuart arrived at the scene the following morning. Dr McClure noted the history of the Voyager incident as follows:

He can clearly remember repeatedly putting his head into the water, surrounded by various flotsam (clothing, wallets, and other personal effects of the drowned) attempting to free the propeller of the small boat from which he and other sailors were seeking survivors. ...

Mr Cooke began to drink heavily in the Navy, particularly after his experiences with the Voyager. His sleep became disturbed (but he was also a shift worker) and he had frequent nightmares about his more unpleasant experiences. He says he has recently cut down his drinking, despite his ongoing occupational exposure - he has worked as a bar steward since leaving the Navy.

39. As for Mr Cooke's symptoms in 1999, Dr McClure noted that:

There have been ongoing problems with irritability, restless sleep (violent limb movements) for which reason his wife left their bed 8 or 9 years ago, and difficulty tolerating public places.

In recent months, Mr Cooke has found that he is unable to return to sleep following his (longstanding) awakenings around 3.00 am. His appetite has been variable and he lacks interest, motivation and enjoyment. He has thought of suicide, but with regular counselling over the past 12 months this particular symptom almost resolved. His appetite varies, and he reports significant weight loss immediately after the separation from his wife.

40. Mr Cooke referred to his two periods of service in Vung Tau harbour and said he believed those experiences exacerbated his symptoms. Dr McClure, however, noted that Mr Cooke did not specifically explain how or why. In Dr McClure's opinion (T11):

The history is consistent with a long-standing anxiety disorder, possible PTSD, with secondary complicating Alcohol dependence. More recently, it is also possible that Mr Cooke has developed a major depressive episode.

41. Neither Dr Waddy nor Dr McClure obtained a history that referred to the Woomera or the Tobruk incidents. In cross-examination Mr Cooke was asked why Dr Waddy and Dr McClure referred only to his heavy drinking following the Voyager incident and not to his similar level of drinking while in charge of the petty officers' mess upon his return from Vietnam. Mr Cooke said they must not have asked him about his drinking at that time.

Dr Dinnen

42. In the course of determining Mr Cooke's claim in respect of PTSD, the Board noted the submission that whilst serving in Vietnam on HMAS Yarra, he had suffered clinical worsening of his PTSD, attributed to his experiences in the Voyager incident. To determine the matter, the Board required additional information. A report was sought from Dr Dinnen who was asked to give an opinion about the clinical onset of the Applicant's PTSD, whether the incidents in Vietnam were stressors as defined in the Statement of Principles, and whether he suffered a clinical worsening of the condition due to operational service in Vietnam.

43. Dr Dinnen's report of 5 March 2001 (T15 p 65) sets out a history of what the Applicant described as `three major incidents' prior to his service in Vietnam. Those incidents were the Woomera incident, the Tobruk incident, and the Voyager incident. In cross-examination, Mr Cooke agreed that, as far as he was concerned, the Woomera and Tobruk incidents could not be described as major incidents.

44. As to the Voyager incident, Dr Dinnen's history differs to that taken by Dr Waddy and Dr McClure, in that Dr Dinnen records Mr Cooke as arriving at the scene a half hour after the collision and seeing the after section of Voyager sink. Under cross-examination Mr Cooke agreed that HMAS Stuart did not arrive at the collision scene until approximately three hours after the collision and that Dr Dinnen's report was mistaken in that Dr Dinnen asked him "whether he had been affected by his experience on the Voyager even in the mid 1960s" [emphasis added]. However, he agreed that he told Dr Dinnen that, at the time, he was not aware of the Voyager incident causing him any real problem.

45. The history Dr Dinnen obtained included the following:

The patient told me that Vietnam made him worse. I asked why this was so. He replied: `we were closed off at action stations and they were letting off grenades over the side.'

The patient said he was in damage control and was thinking of what would happen. He was thinking of all the things he had seen previously (the holing of the Tobruk, the sinking of the Voyager, the explosion on the Woombera). He said you could imagine what it would be like down below under `different scenarios'.. I asked him to explain. He said his duty would be to put out fires to save people, to pump water. I questioned him a number of times, probing to see whether he would acknowledge the obvious critical factor in such a situation. He acknowledged that he would indeed be one of the last ones out of the vessel, if it were to sink.

I asked the patient why things were different after Vietnam with regard to these fears than before it. He said he thought more about it. `There was more danger.' He went on to explain how they had been told what a prize it would be for the enemy to sink an Australian ship. Throughout the time they were there, on both tours on the Yarra, they were constantly aware of being under threat.

In Dr Dinnen's opinion, clinical onset of PTSD dates from the Applicant's return from his second period of service in Vietnam.

46. On review of Dr Dinnen's report, the Department asked Dr Dinnen whether Mr Cooke's experiences while on service in Vietnam amounted to stressors within the meaning of the Statement of Principles. In response, Dr Dinnen furnished a further reported dated 10 April 2001 (T15 p.79). Dr Dinnen re-iterated his earlier view that "the patient has suffered from latent post-traumatic stress disorder from the time of the Voyager which was activated by his service in Vietnam". In Dr Dinnen's opinion, service in Vung Tau harbour constituted experiencing stressors that made worse Mr Cooke's pre-existing condition.

Dr Haik

47. At the Commission's request, Dr Haik, consultant psychiatrist, examined Mr Cooke on 1 November 2001 for the purposes of psychiatric assessment. Dr Haik has prepared a very extensive report (Exhibit R2). Mr Cooke said in evidence that he and Dr Haik had words at the start of the interview. Dr Haik's report referred to Mr Cooke's reluctance to repeat his history to the fourth psychiatrist he had seen. Mr Cooke said he did not like Dr Haik's attitude and felt Dr Haik was biased. The doctor invited him to terminate the interview, but he decided to proceed with it.

48. Mr Cooke told Dr Haik that he had a difficult upbringing and an unhappy childhood. He recalled his mother telling him he did not resemble the other members of the family, though later she denied making the comment. He felt a misfit. He has no interest in living near his four siblings or having much to do with them. Dr Haik reported that, while Mr Cooke associated with other employees of the services club, they were `only acquaintances', adding that he `didn't want friends. Maybe I feel sorry for myself. I've lost my son, daughter and wife.'

49. When he left the Navy for some months in 1967, he failed to find contentment as a civilian and this was a reason for re-enlisting. Dr Haik stated (Exhibit R2) that Mr Cooke lamented being away from his wife and children while at sea, and in amplification Mr Cooke said he was at sea for three quarters of his total period of Naval service. Dr Haik reported Mr Cooke's demeanour and outlook to be gloomy and morose, with little pleasure from any aspect of his life. Dr Haik observed that Mr Cooke's association with the Vietnam Veterans' Association, at the suggestion of his counsellor Ms Grom, is a contrary indication of PTSD. So far as the Voyager incident was concerned, Dr Haik reported that the Applicant did not see bodies of survivors and did not find it stressful at the time. Regarding Mr Cooke's current response to the Voyager incident, Dr Haik stated "nevertheless, Mr Cooke's reference to the Voyager incident was that during his later Navy career he `thought' about the possibility of the bow of the ship piercing his vessel. This is simply a thought, not a recurrent, distressing, intrusive recollection."

50. In relation to the stressful events that the Applicant has suffered, Dr Haik reported that the Applicant identified only his experiences in Vung Tau harbour, which he noted as two visits of 24 hours each. Dr Haik considered that Mr Cooke had not then been confronted with actual or threatened death or serious injury and stated:

His reaction to that experience was described as `That's when it all came back - the Voyager thing - what could have happened.' In other words, he contemplated damage to his ship in Vietnam. Further reactions to those events is documented in para 2.4. That is, he said he experienced some nightmares but only when he had marital turmoil and this began when his [wife] first left him in 1972 and the nightmares relented when he got on with his wife - presumably between 1972 and when she moved to the spare room in 1988 the year after their son died. And he generally claimed he drank excess alcohol, as a response to stress, but his alcohol history is indeed inconsistent. He claimed he drank because `There's nothing else to do. That's what the others did'. ...

Mr Cooke claimed that the significance of provocative events only became evident after he married and that, generally, he `worried on a regular basis after I was married and had kiddies. I think every married man would do that' (para 2.3). It is implausible that being married with children has provoked PTSD.

51. As to diagnosis of Mr Cooke's symptoms, Dr Haik stated:

Given Mr Cooke's complaints of chronic disappointment with his life, a sense of loneliness, chronic grief following the death of his son in 1987, the disappointment of his daughter's denigration of his parenting abilities, and the ultimate departure of his wife in 1994, Mr Cooke might be reasonably argued to suffer from Dysthymic Disorder (DSM IV). And this condition, now evident, has been probably present since childhood.

The DSM IV suggests this disorder often has an early and insidious onset (ie., in childhood, adolescence, or early adult life) as well as a chronic course.

CONSIDERATION OF ISSUES

52. The decision-maker's role in an application such as the present, where there is a preliminary question about the nature or type of incapacitating disease from which the Applicant suffers, has been described by the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270 as follows (at 283):

The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or illness, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s.120(4).. The characterisation of a disease (or injury or death in an appropriate case), for the purpose of determining whether an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s.120(1). The standard of proof laid down by s.120(1) has no application to the former question.

53. In characterising the symptoms, the decision-maker is 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 label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label `Post-Traumatic Stress Disorder', may turn on questions of causation or aetiology. Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s.120(1) as qualified by s.120(3): Repatriation Commission v Budworth (2001) 66 ALD 285, 292.

Moreover, it is quite clear from Benjamin that "SoPs are not relevant to the question of diagnosis", the Full Court there noted (at 280):

The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition of SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever.

54. It is thus established by Benjamin and Budworth that when determining the issue of diagnosis, the Tribunal will apply the standard of proof prescribed by s.120(4) of the Act - reasonable satisfaction. Where the Tribunal determines that the symptoms constitute a disease, the next step is to determine whether a SoP is in force in respect of the disease.

55. Now taking firstly the issue of diagnosis, the Tribunal notes Ms Buchanan's submission that Mr Cooke has a psychiatric condition. The Tribunal finds that his symptoms include chronic grief mainly concerning his son's death, chronic disappointment over his loss of family relations, social isolation, a recurring nightmare, habitual drinking and anxiety related to socialisation. Ms Buchanan noted that two of the four psychiatrists who have examined him, Dr Waddy and Dr Dinnen, have diagnosed PTSD and a third, Dr McClure referred to PTSD as a possible diagnosis. Dr Haik prefers a different diagnosis for Mr Cooke's current psychiatric symptoms. On the basis of this medical evidence, the Tribunal is satisfied that the Applicant suffers from psychiatric problems. Ms Buchanan submitted that PTSD is the correct diagnosis of the Applicant's psychiatric condition and she relied on the opinions of Dr Waddy and Dr Dinnen, and to a lesser extent on Dr McClure's. She contended that as Mr Cooke felt that the Voyager incident and the other two incidents prior to operational service in Vietnam were "stressful", they caused him to be what she termed `a damaged person' or a person with an eggshell skull. Only Dr Dinnen reported the condition of latent PTSD. In her submission, the Tribunal should thus find that he was significantly distressed by what he confronted in Vung Tau harbour and in support she referred to Re Howe and Repatriation Commission [1999] AATA 1006. Ms Buchanan contended that Mr Cooke confronted a war zone when on the deck of Yarra and while at action stations in Vung Tau harbour. She submitted that the incidents that Mr Cooke experienced in Vung Tau harbour were of the requisite severity to lead to the symptoms set out in the criteria contained in the definition of `post traumatic stress disorder' in the SoP. These incidents, including his experiences of the scare charges while in the engine room, were such as to trigger his latent PTSD and bring on clinical onset of PTSD. She argued that the relevant SoP is SoP 15 of 1994. Ms Buchanan also referred to O'Neil v Repatriation Commission (2001) 34 AAR 290 where it was held that a veteran's own experience of a stressful event should not be tested against some objective factor.

56. Mr Marsh submitted that on the balance of probabilities it cannot be said Mr Cooke was objectively confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. Further, he submitted, the threat of death or serious injury must be real and not merely subjectively perceived and cited in support Re Freeman and Repatriation Commission [2000] AATA 727. He contended that O'Neil could be distinguished on the ground that it dealt with the condition of generalised anxiety disorder not with the diagnosis of PTSD, a submission with which the Tribunal agrees. Mr Marsh submitted that Mr Cooke has Dysthymic Disorder but he does not satisfy the relevant statement of principles, SoP 58 of 1998 concerning Depressive Disorder, connecting his condition with service.

57. It was observed in Benjamin that there was "no practical consequence whatsoever" (at 280) in any difference between the definition of `post traumatic stress disorder' in SoP 15 of 1994 and in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4<sup>th</sup> edition (DSM-IV). The Tribunal notes that the definition of `post traumatic stress disorder' is the same in SoP 3 of 1999 and SoP 15 of 1994, both being Statements of Principles concerning Post Traumatic Stress Disorder. It is appropriate, therefore, for the Tribunal to refer to clause 2(b) in SoP 3 of 1999 which defines `post traumatic stress disorder' to mean:

a psychiatric condition meeting the following description (derived from DSM-IV):

(A) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and

(B) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,

attracting ICD-9-CM code 309.81.

By way of explanation of the diagnostic criteria for PTSD, the authors of DSM-IV have included the following (at p.424):

The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person's response to the event must involve intense fear, helplessness, or horror ... (Criterion A2).

...

Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. ...

Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts. ...

58. Does the evidence of Mr Cooke's experiences allow the Tribunal, having regard to the diagnostic criteria concerning PTSD found in DSM-IV set out above, to determine that he suffers from the particular psychiatric condition referred to as PTSD?

59. Before doing so, the Tribunal will address Ms Buchanan's submission that Mr Cooke was a damaged person. The Tribunal is mindful, that at the time of the Woomera, the Tobruk and the Voyager incidents, Mr Cooke said he was young and he did not think much about the incidents then. They did not cause him any problems. So far as the Voyager incident is concerned, the Tribunal notes that Mr Cooke has given different accounts to various psychiatrists of what he did and saw during the rescue operations. During his interview with Dr Dinnen, Mr Cooke became distressed and emotional when discussing the Voyager incident. Dr Dinnen therefore had to fill in some of the history regarding Mr Cooke's activities in this incident from the reports of Dr Waddy and Dr McClure. Neither of these two doctors, however, was given a consistent history. Dr McClure noted that Mr Cooke did not arrive at the site of the collision until the morning following the accident. The history taken by Dr Waddy noted that Mr Cooke ruminates on his experience "seeing again the semi-inflated rafts sinking with the victims while he was overboard trying to free the foul propellor of the rescue craft". Under cross-examination, Mr Cooke agreed that he was not involved in pulling men from the water or attempting to rescue drowning survivors and that Dr Waddy had the wrong impression. Dr Dinnen bases his opinion regarding Mr Cooke's latent PTSD, existing from the time of the Voyager incident, on his involvement in each of the three incidents, but particularly the Voyager incident. The Tribunal finds that Mr Cooke did not consider any of the three incidents to be major incidents. As he told Dr Dinnen, the Voyager incident made him a bit edgy but he was not aware of any real problem. He told Dr Haik that the Voyager incident was not stressful at the time. The Tribunal prefers the opinion of Dr Haik to Dr Dinnen and finds that Mr Cooke did not suffer from latent PTSD prior to his service in Vietnam. Although Dr Haik agreed that a latent psychiatric condition can be triggered by a subsequent event, he stated that (Exhibit R2):

It is understood that events that are so horrific can, by some individuals, be blocked out completely from memory and may be re-introduced years later by subsequent events. The manner in which Mr Cooke dealt with his particular exposure to the Voyager experience could not be regarded as such an experience. ...

Later, subsequent events may return the memory and provoke the fear, helplessness and horror of the original event. Such a proposal is not relevant here because of the nature of Mr Cooke's history of the Voyager experience and the issue of his Vietnam experience.

Consequently, the Tribunal rejects Ms Buchanan's submission that the Applicant was a damaged person at the time of his service in Vung Tau harbour.

60. Has Mr Cooke been exposed to a traumatic event as described in par A of the definition of `post traumatic stress disorder'? Ms Buchanan relied on Mr Cooke's periods of operational service in February 1970 and February 1971 while in Vung Tau harbour. Mr Cooke's evidence was that he found the scare charge explosions to be terrifying and pretty deafening. He was in the engine room, in the hole of the ship, which lifted a little in the water with the explosions. He knew he would be among the last to get out in the event of a mine or a bomb exploding against the hull. He thought of what happened to Voyager, Woomera and Tobruk and that made him think of different scenarios that could occur. Mr Cooke also referred to what he witnessed when he went on deck, including hearing bullets, and seeing tracer fire and helicopters above. In reaching their diagnoses, neither Dr Waddy nor Dr McClure placed much emphasis on the Applicant's experience in Vung Tau harbour. Dr Waddy recorded that he was "anxious about the possibilities of trouble". Dr McClure noted that his experiences in Vietnam "exacerbated his symptoms" but Mr Cooke did not specifically explain how or why. Dr Dinnen obtained a history of Mr Cooke's being in Vung Tau for 24 hours each visit and, after referring to what Mr Cooke saw when on deck and hearing the scare charges, summed up the scene as being "very much a war zone".. In Dr Dinnen's opinion Mr Cooke experienced a `traumatic event' of the kind described in the definition of `post traumatic stress disorder'.

61. Mr Cooke acknowledged in cross-examination, that as an experienced sailor with twelve years service when he went to Vietnam in 1970, he knew that Sydney had carried out many trips to Vung Tau and never come under attack. He knew that there had not been any casualties on Sydney as a result of enemy attack. Similarly, he knew that there had not been any casualties due to enemy action aboard any ship in the Australian Logistical Support Group. Mr Cooke was responsible for damage control matters, he had trained in the Operation Awkward procedures and was used to hearing scare charges, albeit at sea. He had been told that scare charges would be used, but not when. He said he was good at his job.

62. The Tribunal is satisfied that there was no enemy action directed at HMAS Sydney or HMAS Yarra on either of Mr Cooke's two periods of operational service. On the basis of the report of Commodore Mulcare and the statement by Commander Eddes, the Tribunal is also satisfied that scare charges were not used by Yarra on 25 February 1971. The evidence of hearing terrifyingly loud explosions from Yarra's scare charges, and of what he saw and heard from the deck, namely helicopters, armed sailors shooting at logs and rifle fire on the shore, is not evidence "... involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity" (DSM-IV p.424). None of the matters that caused Mr Cooke to think about what might happen, did in fact happen. The Tribunal is not satisfied, therefore, that the evidence before it supports the view that the Applicant, while serving in HMAS Yarra in Vung Tau harbour, experienced, witnessed or confronted an event involving "actual or threatened death or serious injury or a threat to the physical integrity of self or others". In coming to this conclusion the Tribunal accepts the Commission's submission that par A(i) of the definition of `post traumatic stress disorder' refers to an objective set of circumstances, whereas par A (ii) deals with a person's response to the traumatic event and thus approaches the traumatic event subjectively (Re Budworth and Repatriation Commission [2000] AATA 127, Deputy President McMahon, Re Powell and Repatriation Commission [2000] AATA 385, Deputy President Forgie). Dr Haik approached the question whether Mr Cooke suffered PTSD in the same manner. He concluded that he had considerable difficulty accepting that the Applicant's experiences in the two visits to Vietnam (which Dr Haik thought lasted 24 hours) could be described as a traumatic event. Dr Haik referred to the precautions taken against enemy divers as being routine, and the Tribunal agrees. Dr Haik also concluded that Mr Cooke was not confronted with actual or threatened death or serious injury.

63. As for par A(ii) of the definition of `post traumatic stress disorder', the evidence before the Tribunal regarding Mr Cooke's response to the events he experienced while in Vung Tau could not be described as involving intense fear, helplessness or horror. Mr Cooke said the noise from the scare charges was terrifying. He worried about what could happen. Mr Cooke had an apprehension of enemy action, yet was able to go about his job as he had been trained to do. As Dr Haik observed, while listening to the scare charges "must have been onerous and aversive", it did not produce the intense response referred to in the definition. The Tribunal agrees that the evidence regarding Mr Cooke's level of reaction cannot be described as `intense' fear or helplessness. Accordingly, the Tribunal is reasonably satisfied that the events that Mr Cooke experienced while on operational service in Vung Tau harbour were not `traumatic events'.

64. In addition the Tribunal is not satisfied that the evidence of Mr Cooke's psychiatric problems are such that he meets condition F in the definition of `post traumatic stress disorder' which refers to a disturbance that "causes clinically significant distress or impairment in social, occupational or other important areas of functioning". Dr Haik observed, and the Tribunal agrees, that in the years subsequent to service in Vietnam, Mr Cooke functioned well in the Navy, being eventually promoted to Chief Petty Officer, lecturing professionals about aspects of damage control in nuclear and biological conflicts and being regulating officer for 150 naval personnel.

65. Consequently, the Tribunal finds that, on the balance of probabilities, Mr Cooke's psychiatric symptoms are not symptoms that satisfy the diagnostic criteria of PTSD.

66. Even if the Tribunal had accepted the diagnosis of PTSD and accepting that the material points to an hypothesis connecting the PTSD with service, the Tribunal would then have to decide whether an SoP is in force in respect of PTSD. The following step would require the Tribunal to form an opinion whether there is a reasonable hypothesis raised by the evidence that connects PTSD with Mr Cooke's service (Deledio).

67. The Tribunal notes that at the time of the Commission's decision, the relevant SoP concerning PTSD was SoP 15 of 1994, which Ms Buchanan submitted is the applicable SoP that relates Mr Cooke's PTSD to his service. Mr Marsh contended that, in relation to PTSD, the Tribunal was bound to apply SoP 3 of 1999, as amended by SoP 54 of 1999, which is the SoP in force at the time of the Tribunal's decision. Only if Mr Cooke does not satisfy the requirements of SoP 3 of 1999 can he rely on his accrued rights under SoP 15 of 1994 which was in force at the time of the Commission's decision. In support of his argument, Mr Marsh referred to the judgment of Allsopp J in Repatriation Commission v Gorton (2001) 65 ALD 609 as follows (AT 624):

Section 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 s.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.

The Tribunal accepts the Commission's submission.

68. Ms Buchanan contended that the relevant factor connecting Mr Cooke's condition with his service was Factor 5(a). In SoP 3 of 1999, the factor states:

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

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder ...

The expression `experiencing a severe stressor' is defined in SoP 3 of 1999, as amended by SoP 54 of 1999, as:

experiencing a severe stressor means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.

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

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

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

69. For the reasons that the Tribunal has found that Mr Cooke does not meet criterion A(i) in the definition of `post traumatic stress disorder', the Tribunal is equally satisfied that Mr Cooke did not experience a severe stressor. Accordingly, the Tribunal finds that the hypothesis connecting Mr Cooke's condition, assumed for present purposes to be PTSD, with his service is not upheld by SoP 3 of 1999.

70. As required by Gorton and in application of the accrued right principle, the Tribunal will now assess Mr Cooke's claim by reference to SoP 15 of 1994 which was in force at the date of the Commission's decision. Factor 1(a) of SoP 15 of 1994 states:

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

(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or ...

It is observed that, unlike SoP 3 of 1999, the factor does not include the word `severe' in describing the nature of the stressor concerned. The expression `experiencing a stressor' is defined in SoP 15 of 1994 as:

(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror.

This definition is expressed in very similar terms to the `traumatic event' set out in the definition of `post traumatic stress disorder' (above). For the reasons outlined in relation to criteria A(i) and (ii) in the definition of `post traumatic stress disorder', the Tribunal is satisfied that Mr Cooke did not experience a stressor. Accordingly, the hypothesis connecting the assumed condition of PTSD with service, is not upheld by the template in SoP 15 of 1994.

71. The Tribunal finds, therefore, that if Mr Cooke suffered from PTSD, the hypothesis put forward connecting that condition with his operational service is not a reasonable hypothesis because there is no factor, either in SoP 3 of 1999 or SoP 15 of 1994, that connects PTSD with the circumstances of service. Consequently, the Tribunal accepts the Commission's alternative submission that, if Mr Cooke suffers from PTSD, it is not a war-caused disease.

72. The Applicant's claim has been put forward on the basis that PTSD is the only diagnosis that should be made of his psychiatric condition. There were no submissions on his behalf advancing an alternative diagnosis. Nevertheless having decided to its reasonable satisfaction that Mr Cooke's condition does not satisfy the diagnostic criteria for PTSD, the Tribunal turns to determine whether he suffers from a different disability (Benjamin at 281). In Dr Haik's opinion, Mr Cooke did not suffer from alcohol dependence or alcohol abuse. In relation to the former, Dr Haik noted the Applicant's history of never having suffered delirium tremens, his ability to cut down his consumption, not having spent inordinate amounts of time in obtaining alcohol and not having to increase the volume of alcohol consumed to maintain its effect. As to alcohol abuse, Dr Haik stated that the following diagnostic criteria were absent: use of alcohol in hazardous situations, recurrent consumption resulting in his failure to fulfil obligations at work, legal problems arising from recurrent consumption and continued use of alcohol despite recurrent social or interpersonal problems. Dr Haik referred to Mr Cooke's curtailing his drinking after his separation and noted that Mr Cooke said he was wary about the potential effects of alcohol on his performance at work, and did not drink at work. Accordingly, the Tribunal is not satisfied on the balance of probabilities, that Mr Cooke suffers from the conditions of alcohol dependence or alcohol abuse.

73. Dr Haik's diagnosis of the Applicant's condition is that of dysthmic disorder. His report commented that "DSM-IV notes that several studies suggest that the most commonly encountered symptoms in Dysthymic Disorder may be feelings of inadequacy, generalised loss of interest and pleasure, social withdrawal, feelings of guilt and brooding about the past, subjective feelings of irritability or excessive anger, decreased activity, effectiveness or productivity." The Tribunal accepts the diagnosis of dysthymic disorder. In applying the Deledio principles to determine whether the condition was war-caused, the Tribunal had regard to SoP 58 of 1998, the statement of principles concerning depressive disorder. That SoP refers to dysthymic disorder in its definition of `depressive disorder'. Although the relevant diagnostic criteria in relation to dysthymic disorder are satisfied, the Tribunal is unable to form the opinion that an hypothesis connecting the condition with service is a reasonable one. In this respect the Tribunal refers to the diagnosis of Dr Haik who stated that the condition of dysthymic disorder "... has been probably present since childhood". As Dr Haik's opinion is that Mr Cooke has had the condition of dysthymic disorder for the majority of his life, the requirements of the SoP for that condition to be connected with the circumstances of Mr Cooke's service are not met.

74. The Tribunal, therefore, decides to affirm the decision under review refusing the claim for PTSD as a war-caused disease.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of P.J.Lindsay, Senior Member and Dr P.Lynch, Member:

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

Associate

Date of Hearing 16 April 2002

Date of Decision 4 February 2003

Applicant's Representative Ms J. Buchanan, Legal Aid Commission

Respondent's Representative Mr J. Marsh, Dep't of Veterans' Affairs