Tully and Repatriation Commission [2003] AATA 113 (7 February 2003)

Last Updated: 11 February 2003

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DECISION AND REASONS FOR DECISION [2003] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1491

VETERANS' APPEALS DIVISION	)
	Re	DAVID STUART TULLY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member Dr J Campbell, Member

Date 7 February 2003

Place Sydney

.............................................

Ms G Ettinger,

Presiding Member

DECISION

1. The Tribunal varies the decision of the Repatriation Commission dated 7 January 1999 as affirmed by the Veterans' Review Board made on 21 June 2000, which refused the claims of Mr David Stuart Tully for Post Traumatic Stress Disorder, chronic bronchitis, chronic solar skin damage, alcohol dependence or alcohol abuse, acquired cataracts, lumbar spondylosis, chronic rhinitis, hypertension, tinea, bilateral sensorineural hearing loss with tinnitus, impotence and gastro-oesophageal reflux disease

2. The Tribunal finds that Mr Tully's conditions of Post Traumatic Stress Disorder, depressive disorder, alcohol dependence, hypertension and impotence are war-caused pursuant to section 9 of the Act.

3. The Tribunal affirms the decision of the Repatriation Commission as affirmed by the Veterans' Review Board in regard to lumbar spondylosis, and finds that Mr Tully's lumbar spondylosis is not war-caused pursuant to section 9 of the Act.

4. The Applicant did not pursue his claims in relation to chronic bronchitis, chronic solar skin damage, acquired cataracts, chronic rhinitis, tinea, bilateral sensorineural hearing loss with tinnitus, and gastro-oesophageal reflux disease before this Tribunal, and accordingly, not having heard evidence with regard to these, the Tribunal affirmed the decisions of the Respondent in regard to them.

5. The Tribunal notes that the date of effect is 25 February 1998, noting also that the date of effect for any conditions relating to the 1964/5 period would be 1 January 2001.

6. The matter is remitted to the Repatriation Commission for assessment of Mr Tully's entitlement to disability pension.

.............................................

Ms G Ettinger,

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlement - Disability Pension - Operational Service - Reasonable hypothesis - Statements of Principles - PTSD - Diagnosis - Lumbar Spondylosis - Depressive Disorder - Hypertension - Impotence - Decision Varied

LEGISLATION

Veterans' Entitlements Act 1986 ss 9, 120, 120A 120(1) 120(3)

Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998

Statement of Principles Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, concerning Post Traumatic Stress Disorder.

Statement of Principles Instrument No.58 of 1998 concerning Depressive Disorder

Statement of Principles Instrument No.97 of 1996 as amended by No.16 of 2002 concerning Impotence

Statement of Principles Instrument No.27 of 1999 and No.46 of 2002 concerning Lumbar Spondylosis

Statement of Principles Instrument No.31 of 2001 concerning Hypertension

AUTHORITIES

Repatriation Commission v Cooke (1998) 52 ALD 1

Budworth v Repatriation Commission [2001] FCA 317

Benjamin v Repatriation Commission [2001] FCA 1879

Re Benjamin and Repatriation Commission (2000) 61 ALD 565

Repatriation Commission v Keeley (2000) 60 ALD 401

Gorton v Repatriation Commission (2001) 63 ALD 723

Repatriation Commission v Deledio (1998) 83 FCR 82

Deledio v Repatriation Commission [1997] 1047 FCA

Byrnes v Repatriation Commission (1993) 177 CLR 564

Freeman v Repatriation Commission [2002] FCA 576

Re Repatriation Commission v Freeman [2000] AATA 727

O'Neil v Repatriation Commission [2001] FCA 1492

Repatriation Commission v Gosewinckel [1999] FCA 1273

Powell v Repatriation Commission [2000] AATA 385

Repatriation Commission v Budworth (2001) 66 ALD 285

Repatriation Commission v Binding [1999] FCA 974

Re Binding v Repatriation Commission [1998] AATA 340

Re Mulvany and Repatriation Commission (2000) 59 ALD

Re Mulvany and Repatriation Commission [2000] AATA 535

Jehn v Repatriation Commission [2000] AATA 484

Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

7 February 2003

Ms G Ettinger, Senior Member Dr J Campbell, Member

7. The application before the Administrative Appeals Tribunal ("the Tribunal") was that of Mr David Stuart Tully, ("the Applicant"), for review of a decision of the Repatriation Commission (T21), dated 7 January 1999 as affirmed by the Veterans' Review Board ("the VRB") (T30) made on 21 June 2000, refusing claims for Post Traumatic Stress Disorder, ("PTSD"), chronic bronchitis, chronic solar skin damage, alcohol dependence or alcohol abuse, acquired cataracts, lumbar spondylosis, chronic rhinitis, hypertension, tinea, bilateral sensorineural hearing loss with tinnitus, impotence and gastro-oesophageal reflux disease.

8. The Tribunal convened a hearing in this matter on 19 February 2002 in Sydney. At the hearing the Applicant was represented by Mr M Vincent of counsel instructed by Ms V Doran of the Great Lakes Vietnam Veterans' Association, and the Respondent, by Mr J Marsh of the Advocacy Section of the Department of Veterans' Affairs.

9. At the hearing, oral evidence was given by the Applicant, Dr Michael Robertson, consultant psychiatrist, Ms Leanne Humphreys, clinical psychologist, and Mr John Robert Oliver Bell, colleague of the Applicant. At the conclusion of the Hearing, it was decided to adjourn for written submissions to be made. A timetable was set, which was unfortunately not adhered to by the parties. Accordingly, final submissions of the Applicant were only received on or about 23 October 2001. The decision could not be finalised without these.

10. The following documents were tendered and taken into evidence at the hearing:

ITEM	DATE	EXHIBIT NUMBER
Statutory Declaration of John Bell	27 June 2000	Exhibit A1
Statutory Declaration of Colin Tigwell	6 October 2000	Exhibit A2
Statutory Declaration of Anthony Pitt	31 January 2002	Exhibit A3
Aircrew Flying Log Book of D.S. Tully	26 June 1966 - 5 September 1971	Exhibit A4
Report of Dr Michael Robertson	1 November 2000	Exhibit A5
Report of Dr Michael Robertson	26 February 2001	Exhibit A6
Report of Dr Michael Robertson	17 July 2001	Exhibit A7
Report of Leanne Humphreys	12 June 2001	Exhibit A8
Report of Leanne Humphreys	19 February 2002	Exhibit A9
T-Documents	T1 - T49	Exhibit R1
Additional Service Medical Records for David Tully	16 January 2001	Exhibit R2
Report by Writeway Research Service	2 April 2001	Exhibit R3
Report by Writeway Research Service	16 November 2001	Exhibit R4
Statement of Lloyd Knight	12 February 2002	Exhibit R5
Report of Dr James Bodel	23 February 2001	Exhibit R6
Report of Dr Robert Kaplan	14 February 2001	Exhibit R7
Report of Dr Robert Kaplan	9 May 2001	Exhibit R8
Report of Dr Robert Kaplan	13 June 2001	Exhibit R9
Report of Trevor Hawkins, Vocational Capacity Centre	10 August 2001	Exhibit R10
Case history of David Tully		Exhibit R11
Email from Les Wells to Veterans Villages	3 February 2002	Exhibit R12
Statutory Declaration of John Bell	27 May 1999	Exhibit R13

BACKGROUND

11. The following information was provided by way of background. The Applicant was born on 18 March 1936. He served in the Royal Australian Air Force ("RAAF") from 23 January 1952 to 22 January 1972. Mr Tully enlisted as an apprentice airframe fitter at Richmond, and was posted to Butterworth. Between 1966 and 1969 he was a flight engineer on Hercules aircraft making flights to and from Vietnam. Each of those flights constituted operational service. Due to a change in the legislation, effective 1 January 2001, the Applicant also had operational service credited for periods in 1964/65.

12. On 25 May 1998, the Applicant, Mr Tully, lodged a claim for Disability Pension pursuant to section 14 of the Veterans' Entitlements Act 1986 ("the Act"). On 7 January 1999, the Repatriation Commission refused the claim. The following claimed conditions were not accepted as war-caused:

* PTSD

* Chronic Bronchitis

* Chronic Solar Skin Damage

* Alcohol Dependence or Alcohol Abuse

* Acquired Cataracts

* Lumbar Spondylosis

* Chronic Rhinitis

* Hypertension

* Tinea

* Bilateral Sensorineural Hearing Loss with Tinnitus

* Impotence

* Gastro-oesophageal Reflux Disease

13. On 17 February 1999, the Applicant sought review of the decision by the VRB, which affirmed the decision under review on 21 June 2000.

14. On 21 September 2000, the Applicant sought review by the Tribunal, and at the time of Hearing, the only conditions pursued were lumbar spondylosis, PTSD/depressive disorder, alcohol abuse/dependence, hypertension and impotence.

15. The Tribunal noted that the agreed date of effect for any condition found to be war-caused was 25 February 1998, subject to any condition found to be war-caused during the period 1 October 1964 to 16 January 1965 for which the date of effect would be 1 January 2001.

ISSUE BEFORE THE TRIBUNAL

16. The issue the Tribunal had to decide was whether Mr Tully's claimed conditions as listed below, were war-caused pursuant to section 9 of the Act:

* Lumbar spondylosis

* PTSD/depressive disorder

* Alcohol abuse or dependence

* Hypertension

* Impotence

17. As it was not accepted by both parties that Mr Tully suffered PTSD as claimed, the Tribunal had, before considering whether any psychiatric condition Mr Tully suffered was war-caused, to first determine the diagnosis by reference to the tests in DSM-IV.

18. The Applicant did not pursue his claim in relation to the other conditions not accepted as war-caused by the Respondent, and by agreement of the parties, the Tribunal did not hear evidence about these before affirming the decision of the Respondent in that regard.

LEGISLATION

19. A decision in this matter requires consideration of relevant provisions under the Veterans' Entitlements Act 1986. The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly follows:

"9 War-caused injuries or diseases

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

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

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

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

(2) ...

(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:

(a) resulted from the veteran's serious default or wilful act; or

(b) arose from:

(i) a serious breach of discipline committed by the veteran; or

(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.

(4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.

..."

20. The standard of proof applying in the case of operational service is the reasonable hypothesis as provided for by section 120 of the Act, which provides relevantly:

"120 Standard of proof

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

Note: This subsection is affected by subsection 120A

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

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

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

...

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

Note: This subsection is affected by section 120A

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120A

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

..."

21. Section 120A of the Act deals with the Statements of Principles ("SoP") and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("the RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:

"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

...

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

...-

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

22. The standard of proof for diagnosing a condition prior to considering whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act which follows as relevant. (Repatriation Commission v Cooke (1998) 52 ALD 1; Budworth v Repatriation Commission [2001] FCA 317; Benjamin v Repatriation Commission [2001] FCA 1879.)

"120 Standard of proof

...

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

..."

STATEMENTS OF PRINCIPLES

23. The Tribunal noted that in cases of operational service, the determination of whether a condition is war-caused is made pursuant to tests in sections 120 and 120A of the Act, and where applicable, the application of the Repatriation Medical Authorities, SoPs. Principles for selection of these have been determined in the cases of Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723. Accordingly, the relevant SoPs in this case were:

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

* Instrument No.76 of 1998 - Revocation of SoP concerning Psychoactive Substance Abuse or Dependence and Determination of SoP concerning Alcohol Dependence or Alcohol Abuse

* Instrument No.58 of 1998 concerning Depressive Disorder.

* Instrument No.97 of 1996, as amended by Instrument No.16 of 2002, concerning Impotence.

* Instrument No.27 of 1999 as amended by Instrument No.46 of 2002 concerning Lumbar Spondylosis.

* Instrument No.31 of 2001 concerning Hypertension

THE EVIDENCE BEFORE THE TRIBUNAL

MR DAVID STUART TULLY - THE APPLICANT

24. Mr Tully gave oral evidence before the Tribunal.. His date of birth is 18 March 1936, and he joined the RAAF on 23 January 1952. He said that he served for 20 years to the day, and was discharged on 22 January 1972.

25. Mr Tully told the Tribunal that he had been promoted to Corporal in 1962, working as an air frame fitter on Hercules aircraft at Richmond, and was subsequently posted with Number 9 Squadron at Fairbairn base. He said that in 1964, he had gone to Butterworth Base with Number 5 Squadron. Mr Tully acknowledged that air frame fitters were not normally air crew, but said that he had served as air crew. He said that at Butterworth he was a flight fitter, was away a number of days at a time checking serviceability of aircraft, and trained in all trades even though he was actually an airframe fitter.

26. Mr Tully said that early in 1966 he was promoted to Sergeant Airframe Fitter, and was training to become a Flight Engineer on Hercules aircraft. He said that Bell was his trainer on his first overseas flight. Mr Tully said that although he was airman aircrew, he was still an airframe fitter, and it was only after he left the Air Force in 1972 that they made Senior Non-Commissioned Officers of Trade into airmen aircrew.

27. Mr Tully gave evidence that on 27 June 1966, (while still undergoing training), he experienced a dramatic event during a tactical approach while landing at Vung Tau in Vietnam. The Applicant said:

"Well, we went in to land and it was rougher than what I thought it would ever be but unfortunately as soon as we touched down I thought we were under attack. I could hear machine gun fire. I thought well, this is great, first day in here and it looks like I am going to be dead, we are all dead.

...

No difficulty in landing. Just the fact that it was very rough and besides what I thought was machine gun fire through the corners of my eye I could see what looked like aircraft wrecks down both sides of it. They never said anything about is, it looks like a real graveyard this place. ... "

28. Mr Tully told the Tribunal that Mr Bell had told him that the sound he heard was the noise the tyre made on the PSP metal stripping. He said that he thought the engine was on fire, and coupled with the very rough landing that he experienced, he was very afraid. He agreed in cross-examination that the impression he gained that the aircraft was being fired at lasted only a few seconds. Mr Tully also described his duties during the landing where he manoeuvred the landing gear to avoid an accident.

29. The Tribunal noted from the evidence that although 27 June 1966 was Mr Tully's first trip where he had some responsibility for control of the aircraft, he had spent approximately six months overseas in Malaya (as it then was), on some 150 sorties, and it was not his first time in a military aircraft at all.

30. Air Commodore M J Brennan (Rtd) ("Mr Brennan"), at (Exhibit R3/15), in commenting on whether Mr Tully knew of the approach to the landing used in Vung Tau on his first flight stated:

Question: "Is it likely that Mr Tully was unaware of or unable to have explained to him the approach used in Vietnam?"

Mr Brennan: "This would be so unlikely as to be considered highly improbable. The standard checklist called for a full descent and landing briefing by the pilot covering the airfield conditions and the procedures and techniques to be used for every arrival... It would be most unlikely that any crew member would not be fully aware of what the pilot intended.

For this particular flight, Mr Tully was apparently under training and was undertaking his first flight into Vung Tau. The aircraft captain would have been aware of those circumstances and it is highly probable that the captain's approach and landing briefing would have been particularly comprehensive and thorough."

31. The Veteran explained the purpose of the trip, which was to deliver freight and collect body bags, (either black or green plastic), which were loaded on by American mortuary staff. He said that the trip was from Tan Son Nhut to Butterworth. Mr Tully said that when he asked about the smell emanating from the fuselage, Mr Wells who had tied them down, told him it was the bags leaking. Mr Tully said that the smell did not pervade the flight deck. He described the smell as follows: "The smell was that bad you could taste it." The Veteran described the leaks as:

"I say there were sort of pencils of fluid heading towards what is called an electronic rack underneath the flight deck. Now pencils of fluid about as thick as your finger. It wasn't bucketloads but there was fluid moving forward. A couple of fingers of fluid."

He said that after removal of the body bags, the medical people had to mop it up.

32. He said that on arrival at Butterworth he had to complete his work while the officers went off. He said:

"I was absolutely horrified. I could hardly - I knew I had to go past them ... but it was possibly one of the hardest things I have ever had to do in my life to be in such close proximity to something that I thought was possibly the most horrible thing I have ever been involved with and after the landing at Vung Tau with the original thought of machine gun, I thought struth, I could have been in one of those bags meself [sic]."

33. Mr Tully said that he was virtually helpless but forced himself to do what he had to do. This included checking the aircraft inside and outside, the wings, tail etc before putting the plane to bed. Mr Tully said that Mr Bell helped him "I felt like I really didn't want to be there - I had no control of the situation." His reaction to the situation was, despite not being a drinker, to have a few too many beers, he said. Mr Tully said he then went on to drink wine, beer and whiskey when not flying.

34. Mr Tully told the Tribunal that before that incident he was an occasional, but not regular drinker. He said that previously he might have had one or two drinks a week or sometimes none at all. The Applicant said that after the body bag incident, he commenced drinking heavily, smoked cigarettes, and could not sleep; in fact he had to be reasonably drunk to fall asleep and stay asleep. The Tribunal noted that in cross-examination, Mr Marsh asked Mr Tully about his statement of October 1999 at T27/133, and a questionnaire (RAAF medical examination), at T3/2, dated 15 October 1959 where he stated that he was a moderate drinker and was a smoker. Mr Tully explained by saying that there was peer pressure at the time to smoke and drink and that he answered accordingly in his aircrew application. The Tribunal noted Mr Tully's Statutory Declaration at T27/136 dated 13 September 1999 where he attempted to correct the statements he had made on his aircrew questionnaire. He also said in his oral evidence:

" I was talking to my Sergeant - actually about this and he advised that if you put in that you didn't smoke or drink you had got no hope of becoming a pilot. As I said there, additionally I was young and suffered from the naïve impression that smoking and drinking were the manly things to do."

35. Mr Tully emphasised in his evidence that he did not commence smoking or drinking regularly until 1966, although the Tribunal noted he had been in the Air Force 14 years by that time, and that he was 30 years old. He told the Tribunal that he had not had a single drink since November 2001, and had undertaken a course for fourteen weeks to control anger and drinking. The Tribunal noted Mr Tully's statements about his drinking, and its escalation after the events of 27 June 1966 at T5/14, T27/133 and T28/136.

36. The Applicant said that from 27 June 1966, and certainly by the end of that month, he suffered nightmares related to the incident, although he learned that bodies were subsequently transported in caskets so that leaking was not a problem. However he disapproved of the wounded, the majority of whom were young and had no lower limbs, being transported on the same aircraft as the dead. Mr Tully said that there were wounded carried on almost every flight out of Vietnam. He agreed in reply to a question in cross-examination that he did not see their wounds, because they were bandaged.

37. In describing his duties on the aircraft, which were the pressure and temperature control, Mr Tully said that he tried as well as he could to make the wounded comfortable adding, "but really deep down I felt very total helplessness".

38. Mr Tully described himself as having total devotion to his job both in the Air Force and later at Cathay Pacific, saying, "[m]y total being was diverted to the job. Nothing else would invade my head." The Tribunal noted that Mr Tully was very upset during the giving of his evidence, and broke down during the Hearing, saying that it was because he was having to recall things he wanted to forget.

39. Mr Tully said that he returned to Vung Tau several times over the next few years, in fact 51 times in five years and on one occasion four times in a single month. He said that there was always a fear, of the unknown.

40. The Applicant recounted another incident in which he suffered feelings of intense fear and helplessness. He said that the aircraft was hit by lightning on approach to Vung Tau on one occasion, and the white light which blinded them momentarily caused him to fear a missile crash. He said that he suffered a fear of lightning strikes, a fear of the unknown, and a fear of mid-air collisions. Mr Tully described it as "[w]ell, at the time of the strike once again am I dead, are we dead. Total fear, helplessness." Mr Tully said that he did not know the precise date of the lightning strike and said that it was not recorded in his log book because the landing was in fact uneventful.

41. Mr Tully was asked in cross-examination about Dr Miller's report at T17/70 where there had been no mention of body bags made. Mr Tully agreed and said that he had seen Dr Miller a number of times but had been unable to talk about it at the time of seeing Dr Miller. He said that at the time had been drinking approximately 12 schooners a night usually at home alone. He said his drinking had escalated dramatically from 1966 to his return to Australia in 1994.

42. As to impotence, Mr Tully said that after the incidents of 27 June 1966 he was "never a man again, ever. Never ever". He said that he was then aged 30, and had not mentioned the erectile dysfunction problem to his psychiatrist.

43. The Applicant also said that he had not been treated for any nervous condition during service, neither had he been debriefed. In reply to Dr Campbell of the Tribunal who inquired of Mr Tully when he first realised he had a psychiatric problem, the Applicant said that he found it strange in 1991 that Cathay Pacific had not extended his contract in Hong Kong. He said he found it strange he was not asked back, and thought then there might have been something wrong. At the time he was smoking and drinking to excess and had nightmares and intrusive thoughts, he said, which Dr Miller recorded at T17 in 1998. Mr Tully also told the Tribunal he had suffered flashbacks and bad dreams in relation to the body bags by the end of June 1966.

44. Mr Tully gave evidence regarding his back, and said that there was an incident in 1958 when he had been making a bed when something snapped in his back. He also said when asked about Dr Hopcroft's report (T15), that he was loading a box the size of a butter box onto an aircraft which turned out to be much heavier than he thought, when he had a stabbing pain in his lower back. He said he dropped the box and struggled to stand up. Mr Tully said that he continued with his scheduled flight to Butterworth and spent the next two days lying down, and taking analgesics. When asked in cross-examination why Dr Hopcroft had recorded 2 December 1969 as the date of injury in his report at T15, Mr Tully said that the injury occurred in 1968.

45. Mr Tully said that he mentioned his sore back to Air Force doctors (Exhibit R2/53 and 55 and T3/13L). He agreed in cross-examination that there was no mention of trauma by them. However the Tribunal noted at T3/13L that the record for 5 December 1968 stated:

"Injury to back while making bed when 22 years - Has since had intermittent back trouble which comes on after inactivity or flying. ... Tenderness over L5S1, space with some tenderness R buttock."

46. Mr Tully agreed when asked in cross-examination that there was no record of injury in his log book, but said that there was also no record of him flying in the relevant period, from which he concluded it was because he had been hurt.

47. Mr Tully said that his back was presently still stiff and sore to touch and that he did not have full and free movement.

48. Mr Marsh asked Mr Tully about the time after he left the Air Force, and joined Cathay Pacific. Mr Tully agreed he was certified fit for flying, that he had had routine medical examinations from time to time, and that he flew with that company for 18 years. The Applicant agreed he had been promoted to a training flight engineer position which involved extra financial reward and agreed that it was a prestigious position. Mr Tully told the Tribunal that his contract with Cathay Pacific was not renewed when he reached the retiring age of 55 years even though renewal was normally an option. He said that notwithstanding it was not said officially, his non-extension of contract related to what was known to management about his drinking.

49. In noting Mr Tully's situation, the Tribunal was mindful that he said of his condition in 1991 on leaving Cathay Pacific:

"I was still drinking and smoking too much and I was being pestered by bad thoughts, nightmares and flashbacks and all the rest that goes with it. ... It has been since I have been under Dr Robertson and Leanne's care it has got to a stage where now I realise what it is and I have got some reasonable chance to living with it."

As to flashbacks: "Pretty well, pretty soon after the first involvement on 27 June, possibly at the end of that month it all started. It might even have been the next day. Very soon after.

... the major really horrible thing was concerned with going past the body bags in the back of the fuselage and I never ever got past and I was always waking up still standing next to them. That manifested itself as a problem that really came to town on me in 1978 when my parents moved down from Canberra and bought a house in Foster and the first time we drove to Taree we had to drive across the Manning River bridge, the Martin Bridge and I was driving at this stage, but as I approached this bridge I thought this looks all familiar and I started at the bridge and it dawned on my, this is a reincarnation of this stinking nightmare that I have been having. So you don't want to be stuck on this bridge trying to get off it and I am reliving a nightmare when I am awake. That ... has taken a lot of calming down, that one."

50. Mr Tully also discussed his hypertension. The Tribunal noted Dr Ferris first prescribed medication for hypertension for Mr Tully in 1998.

MR JOHN ROBERT OLIVER BELL - COLLEAGUE OF THE APPLICANT

51. Mr Bell, whose Statutory Declarations dated 27 June 2000 (Exhibit A1), and 27 May 1999 (Exhibit R13), were before the Tribunal, gave oral evidence. The document Exhibit R13 confirmed that Mr Tully, as Flight Engineer, and Mr Bell, (also a Flight Engineer), were on flights on a C130 Hercules aircraft in June and July 1966.

52. The Tribunal noted that document Exhibit A1, was a Statutory Declaration of Mr Bell in which he declared that there were three body bags on board the C130 Hercules flight on 27 June 1966 on which Mr Tully was also Flight Engineer. He deposed as follows:

"Part of our loading were three body bags containing K.I.A.

On arrival at R.A.A.F. Base Butterworth these body bags were found to have leaked into the cargo bay of the aircraft causing a foul smelling odour and fluids which ran under the electronic racks below the flight deck.

This leakage and the foul smelling odour profoundly affected some of the other crew members of the flight particularly Flight Engineer D.S. Tully who was under training.

The practice of using body bags was later discontinued after similar incidences and were replaced by aluminium caskets."

53. Referring to the statement of Mr Lloyd Knight who had been a Co-pilot on the relevant flight, (Exhibit R5), Mr Bell acknowledged that Mr Knight stated there that there had been no body bags on the flight on 27 June 1966 on which Mr Tully travelled. Mr Bell said that he recalled three body bags, and agreed that leaks or discharges from those were foul smelling. Mr Bell told the Tribunal that "pilots and navigators very rarely ever went to the cargo compartment of the aircraft".

54. Mr Bell gave evidence that the body bags were on the level deck of the cargo compartment and on descent, some of the fluid leaked out. This was subsequently cleaned up by the medical section after landing, he said. Mr Bell said that later on when aluminium caskets were used, this did not occur.

55. Mr Bell said that Mr Tully was with him when the above described incident occurred because he was in training with him. He said that Mr Tully was "ash-white" as it was his first flight into Vietnam and he was very upset. Mr Bell said that afterwards they went back to the Sergeants Bar and got very drunk. Mr Bell added:

" ... afterwards we went back to our flight crew quarters. It's two to a room and we went to bed there and I could hear him crying, most upset about it and it then started to upset me. ... and he looked a different chap the next morning the way he acted. ... He was withdrawn and upset about the incident what he saw.

...

Well, we went back to Australia via different ports and then at different times I saw him from time to time but he had changed his personality.

...

I didn't know him to drink before or smoke and it would seem that triggered it off."

56. Mr Marsh questioned Mr Bell regarding his knowledge of Mr Tully's drinking and smoking habits which did not appear to the Tribunal to be at all extensive, particularly as they only served together for a short time.

57. When asked in cross-examination about various responsibilities of the crew, Mr Bell agreed with Mr Marsh that Mr Wells, the load-master would have known what cargo was on board. The Tribunal noted that Mr Wells in his statement (Exhibit R12), had indicated there were no body bags on board the relevant flight.

58. The Tribunal noted that Mr Brennan (Exhibit R3/11), indicated in his report that there was no record of body bags, leaking fluid or odours on the flight of 27 June 1966, but that two bodies would have been carried on that flight.

MR COLIN CHRISTOPHER TIGWELL - LOADMASTER

59. Mr Tigwell's Statutory Declaration dated 6 October 2000 was before the Tribunal as Exhibit A2. Mr Tigwell deposed that he was Hercules loadmaster from 1965 to 1969 at Richmond with 36 and 37 RAAF Squadrons.

60. Mr Tigwell stated that on 21 June 1966, he was loadmaster on a flight from Saigon to Butterworth, and that due to a shortage of metal caskets, two deceased Australian Army personnel were carried "wrapped in white shrouds, vacuum packed in plastic sleeves and then wrapped in Army blankets and carried on a standard medical litter." Mr Tigwell deposed that on two other occasions he had carried remains in disposable caskets (cardboard top with wood in one case), and that in one case, the casket had collapsed, necessitating repairs by himself and the medical orderly. He described that this consisted of securing the holes in the plastic with sticking plaster, and transporting the soldier back to Australia on a repaired wooden base and wrapped in a blanket, draped with the Australian flag. Mr Tigwell also deposed that on several occasions, he had carried metal caskets which because of damage, leaked, causing a pungent odour.

MR ANTHONY PITT - FLIGHT ENGINEER LEADER IN 37 SQUADRON

61. Mr Pitt whose Statutory Declaration dated 31 January 2002 was before the Tribunal as Exhibit A3, deposed that on two occasions his aircraft carried defective body bags and cardboard coffins. He was unable to specify dates, saying only that it was early in the Vietnam War. He described leaks on both occasions and that engineers commented in their debriefing to him about the carrying of cardboard coffins. He wrote as follows:

"The first was when we were loading two cardboard coffins at Vung Tau on to the ramp of a 37 Squadron C130E - the coffins consisted of a body bag and a cardboard outer shell. One leaked and the bottom softened which almost caused the body to fall to the tarmac. The other coffin was found to have wet areas on the exterior.

....

The second occurrence happened en route Butterworth/Darwin. The coffin was made of cardboard with a (sic) internal body bag. During the flight a terrible odour spread through the aircraft. On investigation it was found that the coffin was leaking."

AIR COMMODORE M J BRENNAN (RTD) - WRITEWAY RESEARCH SERVICE

62. Reports of Mr Brennan were before the Tribunal as Exhibit R3 dated 2 April 2001 and Exhibit R4 dated 16 November 2001. He described the practice of burying deceased Australian military personnel in Vietnam and Malaysia in the region prior to 1966, stating that after that date they were returned to Australia. Accordingly the standard method of transportation was for the remains to be transported in aluminium caskets of American origin (Exhibit R3/para 9). Mr Brennan reported that all the personnel he interviewed during research for this matter, all of whom served with C-130 operations in Vietnam between 1964 and 1971, reported that on flights they had been involved with, remains were only ever transported in aluminium caskets. He indicated this was out of a combination of quarantine/health considerations and respect for the deceased.

63. Mr Brennan also reported having interviewed a medical, non-aircrew officer who flew on medical evacuation flights out of Vietnam in 1965/66 who recalled that patients and bodies were carried on the same flights. He had indicated that due to a shortage of aluminium caskets, on occasion bodies were carried in cardboard/fibreboard caskets after being hermetically sealed in plastic sheaths. Mr Brennan stated that there were no official records of body bags being used routinely, although one interviewee recalled some leaking, and one report of odours was also received.

64. Mr Brennan confirmed Mr Tully's statements about the PSP airfield at Vung Tau, and the noise the surface caused. He also confirmed that there was a "graveyard" of US aircraft to be seen from the airfield.

65. As to Mr Tully's recollection of a lightning strike, Mr Brennan stated that he could find no record of such strike but added that it was "a common, generally unremarkable occurrence for aircraft operating in the tropics." (Exhibit R3/9).

MR LLOYD D KNIGHT - C130 RAAF PILOT

66. Mr Knight, whose statement of 12 February 2002 was before the Tribunal as Exhibit R5, stated that his logbook recorded he was the co-pilot on 27 June 1966, and that he flew C130 missions to Vietnam. He stated that he recalled steep approaches into the airfield sometimes, due to enemy activity in the area. He also stated that he had no knowledge of body bags or of cardboard/fibreboard boxes being used, and was aware that bodies were carried in aluminium caskets, remembering one occasion when one such casket leaked and emitted odours due to a faulty pressurisation valve.

MR LES WELLS - COLLEAGUE OF MR TULLY

67. The Tribunal had before it an e-mail of Mr Wells (Exhibit R12), who confirmed he had been on the flight of 27 June 1966 and stated that he had "vague recollections of bags leaking, but not on any of my flights."

MEDICAL EVIDENCE

68. The Tribunal reviewed all the evidence before it, including all the medical reports, both in the T-documents and those which were tendered at the Hearing. It has not detailed all the evidence separately, for example that of Dr David Bowers, Consultant Rehabilitation Physician, who dealt with Mr Tully's employment prospects. It is clear the Tribunal was not dealing with that issue at this Hearing.

DR MICHAEL DAVID ROBERTSON - CONSULTANT PSYCHIATRIST

69. Dr Robertson, whose reports were before the Tribunal as Exhibits A5 dated 1 November 2000, A6 dated 26 February 2001, and A7, dated 17 July 2001, gave oral evidence. The Tribunal noted that Dr Robertson was present for the whole of Mr Tully's oral evidence. He described the evidence as "a fair representation of my understanding of his traumatic experiences and mental health".

70. Dr Robertson told the Tribunal that he wished to amend his diagnosis of alcohol abuse made earlier, to alcohol dependence, in relation to Mr Tully. He gave the reason as the pattern of alcohol being more paroxysmal than consistent. Dr Robertson confirmed he had commenced treating Mr Tully in approximately July 2000, and had been seeing him every 4 - 6 weeks, and diagnosed Post Traumatic Stress Syndrome ("PTSD") in his report of 1 November 2000 (Exhibit A5). He opined further that although Mr Tully dated the onset of his psychopathology to the events of 27 June 1966, perhaps the PTSD did not manifest until the early 1990s, adding that it was now recognised that PTSD may be of late onset, and that this would not mitigate against having the condition recognised as war-caused. Dr Robertson confirmed that Mr Tully had undertaken a detoxification course at the Mayo Wesley Treatment Program of which he was the Medical Director, prior to commencing other treatment.

71. When asked about his comments on Mr Tully's experiences on his first trip into Vung Tau, Dr Robertson opined that the descriptions Mr Tully gave highlighted the issue of perception of an event versus the actual event. He said that Mr Tully gave accounts of experiencing intense horror and fear even though the actual events occurred for only two or three seconds. He said that Mr Tully consistently referred to the events in that way for the 18 months he had been treating him. Dr Robertson said that the accounts did not differ from those he heard in evidence at the Tribunal. He replied in cross-examination to questions regarding perception of gun fire, attack and death: "I see perception as being the key to any traumatic event." Dr Robertson also opined that an event which seemed trivial to others might be sufficient to cause PTSD in a particular person.

72. As to the perception Mr Tully had that the aircraft was being attacked on that first landing; Dr Robertson recalled that the Applicant had told him he was poorly prepared for the event, and noted that he was not a worldly wise person at that time.

73. Mr Marsh questioned Dr Robertson about statements made in his report at Exhibit A5, in which he described Mr Tully as exhibiting avoidant behaviour in regard to aircraft. Mr Marsh asked Dr Robertson how this sat with Mr Tully's `20' year flying career which followed the RAAF. Dr Robertson said that it was possible that the cockpit of a 747 differed from that of a C130, and that that may have accounted for some of Mr Tully's abuse of alcohol. Mr Marsh also asked Dr Robertson how the avoidant behaviour could be reconciled with Mr Tully having continued to fly for a further five years with the Air Force after the trauma of June 1966. Dr Robertson replied that it attested to the resilience of the Applicant.

74. Mr Marsh asked Dr Robertson:

Mr Marsh: "Would you agree that there wasn't evidence of significant impairment of occupational functioning given the fact that he did function at quite a high level until 1991?"

Dr Robertson: "I don't have a detailed enough understanding of Mr Tully's work history at Cathay to comment. I would say that his statement that his contemporaries were rehired even after reaching retirement age when he wasn't suggests that there was occupational impairment. Also in terms of social impairment, there is a history of I suppose failed attachment as an adult as well. There is no intimate relationship to speak of after 1966."

75. As to the body bags and discharge issue, Dr Robertson opined that it was unusual that an olfactory situation would be of more concern than the visual. He added however he understood that the horrendous smell was as described, and that the concept of transporting decomposing servicemen was traumatic for Mr Tully. Mr Marsh also asked Dr Robertson about Mr Tully's reaction to the alleged leaking body bags, asserting that there had been sealed, non-leaking caskets. Dr Robertson replied that the body bags were one of a series of traumatic stressors described to him by Mr Tully.

76. When asked whether Mr Tully had discussed the role of the evacuation of the wounded, Dr Robertson said that he may have discussed that with Ms Humphreys, (Clinical Director of the program). Dr Robertson commented that the fact Mr Tully disclosed various points to various professionals did not detract from the veracity of what he was saying, adding that this was often dependent on the style of questioning of each clinician.

77. When asked about diagnosis, Dr Robertson confirmed that his diagnosis of Mr Tully was PTSD, and agreed that Dr Kaplan had diagnosed depressive disorder, commenting that Dr Kaplan had two very time-limited interviews in which to make his assessment. Dr Robertson added further, that Mr Tully may also then have been in a stage of recovery where his PTSD symptoms were not as prominent as when he first started seeing him. Dr Robertson added that depression often complicated diagnoses of PTSD, and that "probably about 50 percent of the symptomatology overlap but the core of PTSD remains the intrusive symptoms." He added:

"There is obviously a symptomatic overlap between all of the anxiety disorders and depression but what was most impressive about this patient's complaints at the time I started seeing him was the severe intrusive symptoms of which he alluded to at the latter end of his testimony."

78. Dr Robertson told the Tribunal about the tests he and Ms Humphreys had administered. He said he had conducted the Davidson's Structured Interview as approved by the Department of Veterans' Affairs which confirmed the diagnosis of PTSD in relation to Mr Tully, which he said he had already made.

79. In reply to cross-examination by Mr Marsh, Dr Robertson said that he was satisfied from the Applicant's account that he had suffered intrusive thoughts within a month after the events of June 1966, and had difficulties with anxiety which had been consistently present. Dr Robertson added:

"I am confident that the process that finally evolved into PTSD was manifest by 1966. ...

I would be of the view that there is a spectrum of disorders that occur after the traumatic event and I think the evidence was clinically this man was suffering from those in the sixties. It may not have evolved into its most florid form until recently.

...

So my impression would be that the illness became its most apparent in the early 1990s."

80. Dr Robertson's final word on diagnosis was that Mr Tully's diagnosis immediately after the events of June 1966 was generalised anxiety disorder which matured in time to PTSD. He added that in his view the Applicant's erectile dysfunction was a consequence of the anxiety disorder which was later to evolve into PTSD.

81. Dr Robertson was also asked about Mr Tully's alcohol consumption in relation to Factor 5(a) and (b) of Instrument No 76 of 1998. Dr Robertson opined as follows:

"I would be of the view clinically that the alcohol abuse was a Co-morbid complication of the PTSD but I think equal credibility could be given to the view that the alcohol abuse was a substantive problem as a consequence of the traumatic stressor."

82. Dr Robertson was uncertain regarding the date of commencement of alcohol abuse but thought it might have been the late 1960s after the stressor had occurred.

83. In relation to the events of June 1966, Dr Robertson opined that Mr Tully would have been sensitised to further stress, such as the transport of the wounded.

84. As to the commencement of the Applicant's impotence, Dr Robertson stated that Mr Tully had given the late 1960s as the start date. Dr Robertson opined that as with many veterans, erectile dysfunction was associated with PTSD or severe chronic anxiety disorder. He added however that he had not yet discussed it with Mr Tully.

MS LEANNE HUMPHREYS - CLINICAL PSYCHOLOGIST

85. Ms Humphreys, Director of the Wesley Corporate Health and Trauma Service, whose reports of 12 June 2001 (Exhibit A8) and 19 February 2002 (Exhibit A9) were before the Tribunal, gave oral evidence. She said she had been treating Mr Tully since October 2000, and that his referral had been on the basis of PTSD as diagnosed by Dr Robertson.

86. In her report at Exhibit A8, Ms Humphreys certified that Mr Tully had completed an accredited PTSD treatment program for Vietnam veterans conducted by the Mayo-Wesley Unit at Taree (NSW). She wrote that at the completion of treatment Mr Tully reported significant reductions in levels of PTSD, major depression and alcohol intake, but retained an ongoing vulnerability to the effects of stress.

87. In her report at Exhibit A9, Ms Humphreys described criteria for admission to the program Mr Tully undertook, the referral to her, an outline of the symptoms he exhibited on assessment and an outline of the treatment programs.

DR JAMES G BODEL - ORTHOPAEDIC SURGEON

88. Dr Bodel's report dated 23 February 2001 was before the Tribunal as Exhibit R6. He reported on Mr Tully's back, stating that he had long established disc disease at L4/5 and L5/S1 levels. He commented that it was a reasonable hypothesis that Mr Tully's disc pathology and lumbar spondylosis arose as a result of the two episodes of injury that occurred during his employment with the Air Force. Dr Bodel opined that the first injury occurred outside operational service in the 1950s, and that it was likely to have been a significant event which probably led to some disc pathology, noting that Mr Tully could not recall specific treatment, and had no documentation in that regard. Dr Bodel referred to the 1968 injury which took place within the operational service period, and opined that it was likely some additional structural damage occurred at that time. Referring to Instrument No 27 of 1999, he opined that Mr Tully probably satisfied Factors 5(h) and (j) or possibly (s) or (t).

DR ROBERT KAPLAN - CONSULTANT PSYCHIATRIST

89. The reports of Dr Kaplan, Exhibit R7 dated 14 February 2001, Exhibit R8 dated 9 May 2001, and Exhibit R9 dated 13 June 2001 were before the Tribunal. Dr Kaplan was not called to give oral evidence.

90. Dr Kaplan had not seen Dr Robertson's report at the time he made his first report (Exhibit R7, dated 14 February 2001). He stated however that his diagnosis of Mr Tully did not change after reviewing Dr Robertson's report, namely that the Applicant is suffering Major Depressive Disorder and obstructive sleep apnoea, on the balance of probabilities not caused by his military service.

91. In his report of 13 June 2001, (Exhibit R9/4), Dr Kaplan opined:

"Mr Tully has my sympathy. He has had an unsatisfactory personal life, never formed a relationship, lost his job in Hong Kong that he loved, and lived in isolation until recently. In addition, he has been beset by anxiety and depression.

There are several view as to how Mr Tully's symptoms originate. On the one hand his doctor and psychiatrist believe he has chronic PTSD as a result of his experiences in the RAAF. The symptoms were latent for many years, covered up to some extent by his abuse of alcohol and triggered off by the death of his mother in the late 1970s. As a result, Mr Tully leads a restricted and isolated life, beset by flashbacks, nightmares, mood swings, outbursts of anger and inability to deal with the public.

The alternative view, which I took, is that Mr Tully had Alcohol Dependence, Major Depressive Disorder and Obstructive Sleep Apnoea. While there is no certainty why he had these problems, difficulties during his childhood and upbringing, failure to form a lasting relationship, impotence, and the loss of his job in Hong Kong were probably the major causes. Attributing the problems to his RAAF experiences was retrospective rationalisation, and could be regarded as an `effort after meaning'; this occurs in depressive and anxiety disorders, and is an attempt to blame emotional dysphoria (and other problems) on an immediate external stressor. The issue of `secondary gain', that is obtaining financial reward, remains speculative in this case.

Seeing Mr Tully again does not change my opinion, but drives home the frustration he must be experiencing. To his mind, his condition is dominated by his flashbacks and nightmares. Yet his dreams are inconsistent and, in all likelihood are a reflexion of an unnoticed condition, sleep apnoea. In addition, while he is phobic and avoidant to some extent, he does not give any description of emotional numbing or intense depersonalisation, which are important features in the diagnosis of PTSD.

DR A G HOPCROFT - GENERAL SURGEON (ORTHOPAEDICS)

92. Dr Hopcroft whose report dated 26 October 1998 was at T15, reported on Mr Tully, recording his complaint of having suffered significant low back pain when undertaking heavy lifting duties whilst loading an aircraft at Vung Tau on or about 2 December 1969. He stated that he believed Mr Tully had "suffered a significant back injury during his work-related activities as a member of the Australian Air Force in 1969 and that those changes have progressed and gone on to develop significant degenerative changes at the L4/5 and L5/S1 disc spaces."

DR JOHN MILLER - CONSULTANT PSYCHIATRIST

93. Dr Miller's report dated 13 November 1998 was before the Tribunal at T17. He stated that Mr Tully had reported sleep problems alleviated by excessive alcohol intake, flashbacks, and allusions to the vulnerable aspects of war. Dr Miller reported:

"In particular he felt exposed because of the lack of camouflage in the aircraft, the unusual landing patterns and so on. ... Because of his symptoms of PTSD and excessive alcohol consumption, I commenced him on an SSRI, Aropax and discussed lessening his alcohol consumption in association with this."

94. The Tribunal noted that this was the first visit to a psychiatrist and that although Mr Tully had mentioned the frightening landing at Vung Tau, flashbacks (not specifically described by Dr Miller), sleep disturbance and loss of libido, it appeared no mention was made of body bags.

SUBMISSIONS AND CONCLUSIONS

95. The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Tully's claimed conditions of PTSD/depressive disorder, alcohol dependence, impotence, hypertension and lumbar spondylosis were war-caused pursuant to section 9 of the Act.

96. The Tribunal noted that the Applicant served his country on operational service for extended periods between 1964 and his discharge in 1972, and that each flight to Vietnam as recorded in Mr Tully's logbook, covering periods between June 1966 and September 1971 (Exhibit A4), were accepted as operational service. It is further noted that due to changes in the acceptance of entitlements, from 1 January 2001, the Applicant's service in Thailand in 1964/65 has been recognised as operational service.

97. The Tribunal noted that the Applicant was not contesting the VRB's decision as it related to his conditions of chronic bronchitis, chronic solar skin damage, acquired cataracts, chronic rhinitis, tinea, bilateral sensorineural hearing loss with tinnitus, and gastro-oesophageal reflux disease. Accordingly the Tribunal affirmed the decision of the Respondent in that regard without hearing further evidence or submissions about those conditions.

98. The parties agreed that the correct date of effect for the Applicant's claims was 25 February 1998, and the Tribunal so finds, noting that the earliest date of effect with regard to any conditions accepted for the 1964/65 period would be 1 January 2001. The Tribunal accepted that in regard to assessment of any entitlement Mr Tully may have for disability pension, the matter be remitted to the Respondent.

99. As Mr Tully had operational service, the determination regarding whether his claimed conditions were war-caused must be made taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82.

APPLICATION OF PRINCIPLES IN REPATRIATION COMMISSION V DELEDIO (1998) 83 FCR 82

100. Ultimately, in determining whether the Veteran's conditions of PTSD/depressive disorder, alcohol dependence, impotence, hypertension and lumbar spondylosis were causally related to his service in accordance with sections 9,120(1), 120(3) and 120A of the Act, the Tribunal had to follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows:

"...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 [is] 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). 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 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."

101. With respect to determining when an hypothesis is reasonable, the Tribunal noted Heerey J's approach in Deledio v Repatriation Commission [1997] 1047 FCA which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):

"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."

102. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's conditions of PTSD/depressive disorder, alcohol dependence, impotence, hypertension and lumbar spondylosis, with his war service. It was their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue.

103. The Tribunal noted also that where a diagnosis is not agreed, such as in the case of Mr Tully's PTSD, the Tribunal had first to decide that by reference to the standard of proof in section 120(4) of the Act, that is to its reasonable satisfaction, applying Repatriation Commission v Cooke (1998) 52 ALD 1, Budworth v Repatriation Commission (2001) 63 ALD 422 and Benjamin v Repatriation Commission (2001) 34 AAR 270, and applying the tests in DSM-IV.

104. The Tribunal accepted pursuant to the principles established in Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723 that the following SoPs applied:

* Instrument No.3 of 1999 as amended by Instrument No.54 of 1999, for PTSD. The Tribunal was mindful that the Respondent had applied Instrument No.15 of 1994 and No/225 of 1995 in relation to PTSD. The main difference between the earlier and later SoPs is in relation to the definition of "stressor" which in the later SoPs requires the person, in order to meet the test, to have experienced a "severe stressor".

* Instrument No.76 of 1998 - Revocation of SoP concerning Psychoactive Substance Abuse or Dependence and Determination of SoP concerning Alcohol Dependence or Alcohol Abuse

* Instrument No.58 of 1998 concerning Depressive Disorder.

* Instrument No.97 of 1996, as amended by Instrument No.16 of 2002, concerning Impotence.

* Instrument No.27 of 1999 as amended by Instrument No.46 of 2002 concerning Lumbar Spondylosis.

* Instrument No.31 of 2001 concerning Hypertension

105. As the parties did not agree on psychiatric diagnosis, the Tribunal moved to consider what diagnosis was appropriate for Mr Tully.

WHETHER MR TULLY SUFFERS POST TRAUMATIC STRESS DISORDER AS CLAIMED

106. The parties did not agree regarding whether Mr Tully's psychiatric condition should be diagnosed as PTSD or depressive disorder, and accordingly made submissions in that regard. The Tribunal was mindful that pursuant to Cooke (supra), Benjamin (supra) and Budworth (supra), the standard to which it had to be satisfied with regard to a diagnosis was pursuant to section 120(4) of the Act, that is to its reasonable satisfaction before proceeding to decide whether any diagnosed condition was war-caused.

107. In order to come to a decision regarding the Applicant's alleged PTSD, the parties agreed, and the Tribunal accepted that it was required to consider the tests which appear in the SoP Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, and which are derived from DSM-IV. The Tribunal was mindful that PTSD is defined in Instrument No.3 of 1999 as follows:

"post-traumatic stress disorder" means 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."

THE APPLICANT

108. Mr Vincent submitted that the correct diagnosis for Mr Tully was PTSD with depressive disorder. He submitted that:

* Dr Miller diagnosed "significant personality dysfunction, chronic alcohol abuse, persistent depressive symptoms and anxiety associated with PTSD" .

* Dr Robertson who has treated Mr Tully since July 2000 diagnosed PTSD, alcohol dependence and a cognitive disorder likely to be alcohol related brain damage. Dr Robertson was present for the duration of Mr Tully's evidence and stated that witnessing the oral evidence, confirmed for him his views about the Applicant's experience of traumatic stressors, his illness, and its relationship to his service.

* Mr Tully attended an accredited PTSD program between October 2000 and February 2001 as supervised by Ms L Humphreys, and was being treated accordingly.

* Dr Robertson considered that immediately after the events of June 1966 there was present a generalised anxiety disorder which matured into PTSD in the early 1990s.

* Dr Kaplan diagnosed major depressive disorder and alcohol dependence.

* The Applicant rebutted the Respondent's submission regarding Freeman v Repatriation Commission [2002] FCA 576, submitting firstly that Re Repatriation Commission v Freeman [2000] AATA 727 was not binding on this Tribunal, and secondly that it was incorrect to assert that the Federal Court implicitly endorsed the concept of the stressor being an "objective" event, because the issue was not addressed by the Court on appeal. Mr Vincent submitted, relying on O'Neil v Repatriation Commission [2001] FCA 1492, that the distinction between "objective" and "subjective" was illusory. In support of his argument, Mr Vincent cited paragraphs 11 and 12 of the judgment in O'Neil (supra), as follows:

"11 The Tribunal's reference to an objective test is, I must say, difficult to understand. Mr Hanks, with his usual clarity, attempted to explain the way in which the Tribunal meant that this test was intended to operate. He said that the SoPs mandated a two-step process. The first step required the Tribunal to ask whether, as an objective matter, the occurrence was of such a character that it could fall within the description of an occurrence which evoked feelings of anxiety or stress. The second step was to ask whether the occurrence did in fact evoke such feelings in the person concerned.

12 Once stated in this way, the difficulty in attributing any meaning to the first suggested step test becomes evident. It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoP, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs."

109. Mr Vincent rebutted the Respondent's submission that Mr Tully experienceing the smell of the fluid emanating from body bags without any other incident did not amount to a severe stressor, as though it were an objective incident. He submitted that smelling was an experience as any other. He also referred to dictionary definitions of the words "confront" and "witness", submitting that it was "fanciful to say that smelling cannot constitute having `witnessed' or been `confronted' by an event." (Applicant's Submissions in Reply, paragraph 35).

THE RESPONDENT

110. Mr Marsh submitted that in deciding on the diagnosis, the Tribunal should rely on Re Repatriation Commission v Freeman [2000] AATA 727, that is to approach tests in paragraph (a) of the SoP definition of PTSD objectively, and assess the criteria set out in paragraph (b) by considering subjective responses to the objective criteria. Mr Marsh submitted that on appeal, in Freeman v Repatriation Commission [2002] FCA 576, the Federal Court, although faced with a challenge to the application by the Tribunal of the objective test, expressed no disagreement with it, and decided the appeal on other grounds. Mr Marsh submitted that this approach was implicitly endorsed by the Federal Court in Budworth v Repatriation Commission [2001] FCA 317, and that the objective test for a stressor had been consistently used by the Tribunal in other decisions, including Powell v Repatriation Commission [2000] AATA 385.

111. Mr Marsh, citing Re Repatriation Commission v Freeman (supra) and Repatriation Commission v Gosewinckel [1999] FCA 1273, submitted that the diagnosis of the treating doctor could not take the place of the Tribunal facing the statutory definition of PTSD for these purposes.

112. Citing paragraphs 41 - 42 of Benjamin v Repatriation Commission (supra), Mr Marsh noted:

"There is clearly also a need for some objectively assessable facts which may give rise to such experience, whilst bearing in mind the range of subjective responses to any given situation. To generate a response of `intense fear, helplessness or horror, the `traumatic event' needs to be significant. It cannot just be a general apprehension or foreboding."

113. Mr Marsh submitted also that in Benjamin v Repatriation Commission (supra), at paragraph 43, the Tribunal stated:

"The traumatic event must be of sufficient magnitude so as to result in the experience of the factors listed in sub-paragraphs (b) through to (f) of SoP No 15 of 1994. The Tribunal considers that to generate reactions of the magnitude in the said sub-paragraphs, the traumatic event must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of war zone."

114. Mr Marsh submitted that the Respondent relied on the "far reaching significance of the Budworth and Benjamin decisions to the application of the PTSD SoP ..." , and further, that on the documentary evidence before the Tribunal in this matter, it could not be said that Mr Tully "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".

115. The Respondent relied, Mr Marsh submitted, on the reports of Mr Brennan, and Dr Kaplan. Mr Marsh drew the Tribunal's attention to the report of Dr Miller who examined the Applicant in 1998, and reported the Applicant as having said that "in particular he felt exposed because of the lack of camouflage in the aircraft, the unusual landing patterns and so on." Mr Marsh drew attention to the fact there had been no account of body bags or smells at that time.

116. Mr Marsh submitted that Mr Tully admitted that the tactical landing on the noisy PSP runway, when the Applicant said he thought he heard machine gun fire on his first trip to Vung Tau in June 1966, lasted "no more than two seconds". He submitted that any fear experienced during landing was momentary, and was based entirely on perception, not reality. He submitted there was no attack, and when viewed objectively, common sense dictated that the experience was trivial and not a "significant stressor", as contemplated by the SoP.

117. Mr Marsh noted that Mr Tully had told Dr Robertson he had not been trained for combat flying, and that this made the landing more frightening. Mr Marsh submitted in that regard that there was no need for Mr Tully to be thus trained because he flew for his whole service on missions where there was no likelihood of combat. Even Dr Robertson referred to an imagined threat, Mr Marsh submitted. In addition, Mr Marsh, relying on Mr Brennan's research, submitted that as it was the Applicant's first flight, the briefing would have been particularly comprehensive and thorough.

118. The Respondent submitted that there were no body bags carried on the flight of 27 June 1966, and that when human remains were transported, they were hermetically sealed in aluminium caskets. Mr Marsh submitted that the Respondent was relyied on the evidence of Mr Wells (loadmaster on the relevant flight), and Mr Knight, the co-pilot. Mr Marsh submitted that the Tribunal prefer the evidence of Messrs Wells and Knight over that of Mr Tully and Mr Bell.

119. In the alternative, he submitted, if there had been such event, it was an experience involving smell only, because Mr Tully's own evidence was that he did not see, load or handle bodies. That in itself would not meet the criteria, Mr Marsh submitted. Mr Marsh also emphasised that Mr Tully had been able to perform all the duties of a person of his rank at the time, and that the perceived threat was insufficient to invoke causal factors in satisfaction of section 9 of the Act.

120. Mr Marsh also referred to two further events introduced by Mr Tully, namely a lightning strike, and seeing casualties. He submitted neither of these events had been considered by the three psychiatrists who examined Mr Tully. He added that the wounded who were transported had been treated, bandaged and stabilised and were certified fit to fly. He submitted this event equated to a visit to a hospital and could not qualify as a severe stressor. As to the lightning strike, Mr Marsh submitted the Applicant could neither remember the date, nor even the year, and there was no reliable evidence it occurred during eligible service.

121. Mr Marsh also submitted that Mr Tully did not satisfy the avoidance criteria, noting that he flew a further 40 operational flights over the next six years and enjoyed a successful career in civil aviation with Cathay Pacific for 19 years.

THE TRIBUNAL

122. Both parties submitted, and the Tribunal agreed that the diagnosis of Mr Tully's psychiatric disorder had to be decided to the Tribunal's reasonable satisfaction pursuant to the tests Benjamin v Repatriation Commission (supra) Budworth (supra) and Cooke (supra). Further, this had to be done before assessing whether any such condition was war-caused pursuant to section 9 of the Act.

123. The Tribunal was mindful that the tests in paragraph (a) of the DSM-IV definition required that 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 that the person's response to that event involved intense fear, helplessness or horror.

124. The Tribunal was mindful of the submissions of the Respondent that the tests in paragraph (a) of the definition of PTSD were to be assessed objectively, and of course both parties agreed that the Veteran's response to such event was subjective.

125. In order to establish whether Mr Tully suffered PTSD pursuant to the DSM-IV definition, the Tribunal needed first to establish to its satisfaction whether the events of June 1966 were of such significance as to be able to be classified as "severe stressors". The Tribunal was mindful that the events claimed by Mr Tully to be the "stressful events", were the tactical landing at Vung Tau, the smell of leaking body bags being carried from Tan Son Nhut to Butterworth, a lightning strike, and the fact that he travelled with the war wounded and dead. Following the assessment of these, the Tribunal had to consider whether further tests in paragraph (b) and other paragraphs of the definition of DSM-IV were satisfied.

126. The Tribunal was mindful that in the setting of service in the Defence Forces, or other service where the Act applies, events that qualify as "severe stressors" as per Instrument No.54 of 1999 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;"

127. The Tribunal was mindful that the medical evidence of Dr Miller and of the treating psychiatrist Dr Robertson, was that Mr Tully suffered PTSD arising out of events related to his war service, and that Dr Kaplan diagnosed Major Depressive Disorder.

128. The Tribunal first considered the evidence surrounding these events as claimed, taking into account all the evidence including that of the Applicant, Mr Brennan and the results of his research, and the evidence of others who had knowledge of the events.

129. The Tribunal was also mindful of a number of cases where the Federal Court and the Tribunal had dealt with the issue of a veteran experiencing a stressor. As relevant they follow:

* Benjamin v Repatriation Commission [2001] FCA 1879) - a decision of the Full Court of the Federal Court. The case before the Tribunal which preceded the appeal, Re Benjamin and Repatriation Commission (2000) 61 ALD 565, was a case where the Veteran was held by the Tribunal not to have experienced a traumatic event when an alert was issued that divers were attempting to attach mines to MV Jeparit. Mr Benjamin had been moved on to the wharf while the ship was checked. He had been drinking and said that he felt very confused and afraid. A later incident in which Mr Benjamin was involved was also held not to have been a traumatic event wherein during the Tet Offensive, bombardments and rifle fire occurred in proximity of MV Jeparit, although only a couple of kilometres away. Mr Benjamin did not therefore meet the first limb of the test for the stressor in the relevant SoP, and also failed on the subjective count, considering his reaction to it.

* Repatriation Commission v Budworth (2001) 66 ALD 285 was a decision of the Full Court of the Federal Court which binds this Tribunal, and was decided in particular in clarification of the standard of proof in Repatriation matters. However, the factual situation concerned Budworth being subjected to scare charges. He served on HMAS Sydney. In Budworth's case, the dropping of scare charges was held not to meet the tests in regard to the first limb of the stressor. Neither did he meet the tests in the second limb, which were his subjective reactions to the scare charges.

* Repatriation Commission v Binding [1999] FCA 974, was a decision of a single Judge of the Federal Court, in which the appeal of the Repatriation Commission against the decision of the Tribunal was dismissed. In Re Binding v Repatriation Commission [1998] AATA 340, the Tribunal held that Binding who served in HMAS Sydney's boiler room for a period of only three days on operational service in 1965, was subjected to scare charges and met the tests. The Tribunal had decided that his PTSD was war-caused, and on appeal by the Repatriation Commission, the Federal Court did not find an error of law.

* Re Mulvany and Repatriation Commission (2000) 59 ALD 602 was a similar case. The Tribunal affirmed the decision of the Respondent in that case. The Tribunal in Re Mulvany and Repatriation Commission [2000] AATA 535 held as follows at paras 21- 24:

"...

Adopting an objective interpretation of para (a) of the definition of the phrase "experiencing a stressor" in cl 4 of the SoP concerning PTSD, the Tribunal finds that the rats incident was an event that did not in fact involve "threatened death or serious injury" within the meaning of that definition, because there is no evidence to suggest that the probable or impending death of, or serious injury to, the applicant was indicated by that event.

Alternatively, did the rats incident in fact involve a threat to the applicant's "physical integrity"? The phrase "physical integrity" is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness. In the Tribunal's opinion, however, the connotation of that phrase, as appearing in the definition of "experiencing a stressor" in cl 4 of the SoP concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase "threat to ... physical integrity" in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only. Adopting that interpretation, the Tribunal finds that the rats incident was an event that did not in fact involve a "threat to the [applicant's] ... physical integrity", within the meaning of the definition of "experiencing a stressor" in the abovementioned SoP, because there is no evidence to suggest that that event involved impending or probable harm of an extreme kind to the applicant's bodily wholeness or soundness. The only kinds of relevant bodily harm referred to by Mr Clarke in his submissions were the biting, scratching and spreading disease by rats but there was no evidence to suggest that any of those kinds of harm could be regarded as extreme. Nor was there any evidence regarding the likelihood or probability of any such kind of harm being inflicted on the applicant in the rats incident.

The Tribunal finds, therefore, that the factor referred to in para (a) of cl 1 of the SoP concerning PTSD does not exist, or is not satisfied, in the present case because the rats incident did not involve the applicant's "experiencing a stressor" within the meaning of the definition of that phrase in cl 4 of that SoP.

None of the other minimum factors referred to in cl 1 of the abovementioned SoP being relevant in this case, it follows that the raised hypothesis connecting the applicant's diagnosed condition of PTSD with the circumstances of his operational service - specifically, the rats incident - is not a reasonable one, and the Tribunal so finds.

..."

* Powell v Repatriation Commission [2000] AATA 385, by way of contrast, was a case where the Tribunal held that of the events recounted by the Veteran, the incident in which he led a patrol for the first and last time, and faced, over a cache of ammunition, six Viet Cong who pointed their guns at him and his patrol, to be a threat to Mr Powell's physical integrity. The Tribunal found that it did not matter that Mr Powell and his patrol were able subsequently to withdraw from the situation unharmed, and that viewed objectively, the event could be classed to be a threat to Mr Powell's physical integrity.

130. The Tribunal noted also from Re Benjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565 the statements of Senior Member Kiosoglous which were referred to by the Full Court of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270. Senior Member Kiosoglous stated as follows at paragraphs 42 and 43 of Re Benjamin and Repatriation Commission [2000] AATA 680:

"42. To generate a response of "intense fear, helplessness or horror" the "traumatic event" needs to be significant. It cannot just be a general apprehension or foreboding. The applicant gave evidence to the Tribunal about the mine incident and that in which he saw gunfire and bombing, most likely during the Tet Offensive. The Tribunal has also considered the manner in which he has described these events over the years to the various doctors. It also takes into account his drinking history, as that affects his abilities as a historian. Nevertheless, the Tribunal must be mindful of the reports of the historians, Professor Grey and Mr O'Keefe, as to the objective risks, and consider the relative severity of the applicant's experiences as against other veterans it sees, and common sense approaches as to what is considered to be "traumatic". The Macquarie Dictionary 3^rd Edition defines trauma as being:

"...

1. Pathology a. a bodily injury produced by violence, or any thermal, chemical, etc., extrinsic agent. b. the condition produced by this; traumatism. C. the injurious agent or mechanism itself. 2. Psychology a startling experience which has a lasting effect on mental life; a shock. ..."

43. The traumatic event must be of sufficient magnitude so as to result in the experience of the factors listed in sub-paragraphs (b) through to (f) of SoP No. 15 of 1994. The Tribunal considers that to generate reactions of the magnitude prescribed in the said sub-paragraphs, the traumatic event must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone."

131. By way of contrast in Jehn v Repatriation Commission [2000] AATA 484, for example, the Tribunal held that an event Mr Jehn experienced where a spotter was "calling fire on his own position and I was told he was killed", was an event which involved actual death, and that Mr Jehn had responded with a feeling of helplessness which satisfied the experiencing of a stressor in the relevant SoP.

132. The Tribunal moved then to consider the events Mr Tully claimed were stressors in his case.

TACTICAL LANDING

133. The Tribunal was satisfied from the evidence that Mr Tully's first landing at Vung Tau did take place on 27 June 1966, that he was a trainee at the time, and that Mr Bell, who also gave evidence at the Tribunal, was his supervisor. It was uncontroverted, and the Tribunal was satisfied that the runway was made of PSP material which made a loud noise on landing for a short time, and that this sounded to Mr Tully, like machine gun fire. He said in evidence:

"Well, we went in to land and it was rougher than what I thought it would ever be but unfortunately as soon as we touched down I thought we were under attack. I could hear machine gun fire. I thought well, this is great, first day in here and it looks like I am going to be dead, we are all dead.

...

No difficulty in landing. Just the fact that it was very rough and what I thought was machine gun fire through the corners of my eye I could see what looked like aircraft wrecks down both sides of it. They never said anything about is, it looks like a real graveyard this place."

134. The Tribunal noted from the evidence that although 27 June 1966 was Mr Tully's first trip where he had some responsibility for control of the aircraft, he had spent approximately six months overseas in Malaya (as it then was), on some 150 sorties, and that it was not his first time in a military aircraft.

135. The Tribunal noted that Mr Brennan (Exhibit R3), in commenting on whether Mr Tully knew of the approach to the landing used in Vung Tau on his first flight stated:

Question: "Is it likely that Mr Tully was unaware of or unable to have explained to him the approach used in Vietnam?"

Mr Brennan: "This would be so unlikely as to be considered highly improbable. The standard checklist called for a full descent and landing briefing by the pilot covering the airfield conditions and the procedures and techniques to be used for every arrival... It would be most unlikely that any crew member would not be fully aware of what the pilot intended.

For this particular flight, Mr Tully was apparently under training and was undertaking his first flight into Vung Tau. The aircraft captain would have been aware of those circumstances and it is highly probable that the captain's approach and landing briefing would have been particularly comprehensive and thorough."

136. The Tribunal accepted that notwithstanding any explanation he may have been given, (as per Mr Brennan's evidence), Mr Tully was subjected, albeit for a short time, probably only a matter of seconds, to noise which could well have been, and which he believed to be, enemy gun fire, and that he could see unexplained aircraft wrecks lining the landing strip. There was no dispute, and the Tribunal accepted, that Mr Tully had not been in combat with the Vietnamese. Similarly neither had any aircraft in which he had been located, nor had Mr Tully himself, actually been fired at.

137. However, the Tribunal accepted the evidence that he was still in training, and that this was the first trip in which he had any responsibility for control of the aircraft. The Tribunal accepted that the sound of the landing on the PSP sounded like machine gun fire. Accordingly, the landing could be classified as a traumatic event, such that Mr Tully experienced, witnessed or was confronted with actual or threatened death or serious injury.

138. Relying on the evidence of Mr Tully which it accepted and which has been detailed above, the Tribunal was satisfied that he reacted with intense fear, helplessness and horror, and that he went off work and drank to excess and continued to do so until November 2001 when he undertook Dr Robertson's PTSD treatment.

139. The Tribunal moved then to assess the claim regarding the carriage of body bags.

THE CARRIAGE OF BODY BAGS

140. Mr Tully claimed that he was part of the crew on his first flight on 27 June 1966 from Tan Son Nhut to Butterworth on which body bags were leaking. The Tribunal noted his evidence that when he asked about the smell emanating from the fuselage, Mr Wells, the loadmaster who had tied the body bags down, told him it was the bags leaking. Mr Tully said that the smell did not pervade the flight deck so that the pilots may not have been aware of it. He described the smell as follows: "The smell was that bad you could taste it." The Veteran described the leaks as:

"I say there were sort of pencils of fluid heading towards what is called an electronic rack underneath the flight deck. Now pencils of fluid about as thick as your finger. It wasn't bucketloads but there was fluid moving forward. A couple of fingers of fluid."

He said that after removal of the body bags, the medical people had to mop up the liquid.

141. The Tribunal was mindful that there was conflicting evidence regarding the carriage of body bags. There was an e-mail from Mr Wells (Exhibit R12), which confirmed he had been on the flight of 27 June 1966, and stated that he had "vague recollections of bags leaking but not on any of my flights." Mr Knight, co-pilot on 27 June 1966, (Exhibit R5), stated that there were no body bags carried, but recalled a leaking casket with accompanying odours on one occasion.

142. Mr Tully said that on arrival at Butterworth he had to complete his work while the officers went off. He said:

"I was absolutely horrified. I could hardly - I knew I had to go past them ... but it was possibly one of the hardest things I have ever had to do in my life to be in such close proximity to something that I though was possibly the most horrible thing I have ever been involved with and after the landing at Vung Tau with the original thought of machine gun, I thought struth, I could have been in one of those bags meself [sic]."

143. Mr Tully said that he was virtually helpless, but forced himself to do what he had to do. This included checking the aircraft inside and outside, the wings, tail etc before putting the plane to bed. Mr Tully said that Mr Bell helped him "I felt like I really didn't want to be there - I had no control of the situation." His reaction to the situation was, despite not being a drinker, to have a few too many beers, he said. Mr Tully said he then went on to drink wine, beer and whiskey when not flying.

144. The Tribunal accepted the Applicant's evidence that from 27 June 1966, he suffered nightmares related to the incident, although he learned that on later flights bodies were transported in caskets, so that leaking was not a problem.

145. Mr Tully told the Tribunal that before that incident he was an occasional, but not regular drinker. He said that previously he might have had one or two drinks a week, or sometimes none at all. The Applicant said that after the body bag incident, he commenced drinking heavily and smoked cigarettes, and could not sleep; in fact he had to be reasonably drunk to fall asleep and stay asleep. The Tribunal noted that in cross-examination, Mr Marsh asked Mr Tully about his statement of October 1999 at T27/133, and T3/2, a questionnaire (RAAF medical examination), dated 15 October 1959, where he stated that he was a moderate drinker, and was a smoker.

146. The Tribunal noted Mr Bell's evidence that he recalled three body bags on the relevant flight, and that leaks or discharges from those were foul smelling. In document Exhibit A1, his Statutory Declaration, Mr Bell stated that there were three body bags on board the C130 Hercules flight on which Mr Tully was also Flight Engineer. He deposed as follows:

"Part of our loading were three body bags containing K.I.A.

On arrival at R.A.A.F. Base Butterworth these body bags were found to have leaked into the cargo bay of the aircraft causing a foul smelling odour and fluids which ran under the electronic racks below the flight deck.

This leakage and the foul smelling odour profoundly affected some of the other crew members of the flight particularly Flight Engineer D.S. Tully who was under training.

The practice of using body bags was later discontinued after similar incidences and were replaced by aluminium caskets."

147. The Tribunal noted that some of the evidence referred to a shortage of aluminium caskets, and that Mr Tigwell deposed that he was a Hercules loadmaster between 1965 and 1969, and that he had at various times transported deceased in "white shrouds", and disposable caskets (Exhibit A2). He also referred to leaking in his Statutory Declaration. Mr Pitt also deposed that he was twice on aircraft which had carried defective body bags and cardboard coffins (Exhibit A3). Mr Knight told the Tribunal that "pilots and navigators very rarely ever went to the cargo compartment of the aircraft".

148. Mr Marsh drew the attention of the Tribunal to the fact that Mr Tully had not mentioned body bags to Dr Miller, the first psychiatrist who examined him in 1998. The Respondent's witnesses, Mr Lloyd Knight who had been a co-pilot on the relevant flight, stated there that there had been no body bags on the flight to Butterworth on 27 June 1966 (Exhibit R5), and Mr Wells stated that he did not know of body bags being used.

149. Mr Brennan's research found that due to a shortage of aluminium caskets, on occasion bodies were carried in cardboard or fibreboard caskets after being hermetically sealed in plastic sheaths. Mr Brennan stated that there were no official records of body bags being used routinely, although one interviewee recalled some leaking and there was one report of odours.

150. The Tribunal was reasonably satisfied and accepted from the evidence before it, as stated above, that there were body bags carried on some flights, and in particular on the flight of 27 June 1966 as claimed by Mr Tully. The Tribunal accepted Mr Tully's account of the body bags leaking, the foul odour which emanated from the bags, and his reaction to it as stated above, including the intense horror and helplessness, the resultant increase in alcohol intake and smoking, and the sleep disturbances.

151. The Tribunal accepted that he was absolutely horrified and could hardly go past them, that it was possibly one of the hardest things he had ever had to do in his life to be in such close proximity to the most horrible thing he had ever been involved with. The Tribunal accepted that combined with the scary landing at Vung Tau, the original thought and sound of machine gun fire, and the view of the wrecked aircraft, Mr Tully believed he too could have been in one of those bags.

152. The Tribunal was satisfied to the requisite standard that the combination of the abovenamed two events, in particular that with the body bags, could be classified as a traumatic event, such that Mr Tully experienced, witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Tully or other people's physical integrity.

153. Relying on the evidence of Mr Tully which it accepted, the Tribunal was satisfied that he reacted with intense fear, helplessness and horror and that he went off duty and drank to excess, and continued to do so until November 2001 when he undertook Dr Robertson's PTSD treatment.

154. The Tribunal noted further for the sake of completion that the Veterans Review Board at T30/147, stated as follows:

"Some of the incidents described above by the veteran could be regarded as events that involved being confronted with actual death (body bag incident), or the threat of death or serious injury (lightning strike)."

THE LIGHTNING STRIKE

155. Mr Tully said that he returned to Vung Tau several times over the next few years, in fact 51 times in five years and on one occasion four times in a single month. He said that there was always a fear, the unknown.

156. The Applicant recounted another incident in which he suffered feelings of intense fear and helplessness. He said that the aircraft was hit by lightning on approach to Vung Tau on one occasion, and the white light which blinded them momentarily caused him to fear a missile crash. He said that he suffered a fear of lightning strikes, a fear of the unknown, and a fear of mid-air collisions. Mr Tully described it as "[w]ell at the time of the strike once again am I dead, are we dead. Total fear, helplessness." Mr Tully said that he did not know the precise date of the lightning strike and said that it was not recorded in his log book because the landing was in fact uneventful.

157. The Tribunal noted that Mr Brennan could find no record of a lightning strike as claimed by Mr Tully, but stated that it was "a common, generally unremarkable occurrence for aircraft operating in the tropics." The Tribunal was mindful of Mr Marsh's submission that none of the psychiatrists had dealt with the effects of a lightning strike. It noted also the statements made by the VRB that "[s]ome of the incidents described above by the veteran could be regarded as events that involved being confronted with actual death (body bag incident), or the threat of death or serious injury (lightning strike)." (T30/147).

158. The Tribunal was mindful that Mr Tully could not remember the date, or even the year in which the lighting strike occurred, and although the Tribunal agreed that this was an event which involved being confronted with threat of death or serious injury, was unable because of the uncertainty regarding dates, to find that this episode satisfied the requirements of paragraph (a) of the PTSD definition.

CARRIAGE OF THE DEAD AND WOUNDED

159. Mr Tully told the Tribunal that he disapproved of the wounded, the majority of whom were young and had no lower limbs, being transported on the same aircraft as the dead. Mr Tully said that there were wounded carried on almost every flight out of Vietnam. He replied to a question in cross-examination that he did not see their wounds as they were bandaged. The Tribunal was mindful however that although he did not have to deal with the wounds, in describing his duties on the aircraft which were the pressure and temperature control, Mr Tully said that he tried as well as he could to make the wounded comfortable, adding "but really deep down I felt very total helplessness".

160. The Tribunal finds that the issues relating to the wounded, in combination with the landing and body bags incident of 27 June 1966, contributed to Mr Tully meeting the tests in paragraphs (a) and (b) of the tests for PTSD, in that they were "traumatic events", and that his reaction to them was as stated above, in conformity with the descriptions of reactions in paragraph (b).

WHETHER MR TULLY MEETS THE FURTHER TESTS IN DSM-IV

161. In considering whether the Applicant also meets the tests in paragraph (b) of the DSM-IV, and suffers PTSD which is war-caused, the Tribunal referred to those tests as prescribed, considering Mr Tully's evidence, that of the relevant doctors and the submissions made by both parties in that regard:

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

(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" .

162. Mr Tully's evidence as recited in the sections above, and summarised here, was that he has suffered sleep disturbance with nightmares, recurrent flashbacks, avoidance behaviour, and efforts to avoid thoughts, feelings, or conversations associated with the trauma and persistent re-experience of the events of June 1966 since 27 June 1966.

163. The Tribunal noted that Dr Miller (T17) referred to "symptoms of PTSD", Mr Tully's flashbacks, his loss of libido and his feeling of exposure because of lack of camouflage in the aircraft.

164. Dr Robertson, the treating psychiatrist, (Exhibits A5, A6 and A7), made diagnoses of alcohol dependence, PTSD and the onset of psychopathology related to the events of 27 June 1966, with PTSD manifesting by the early 1990s.

165. Dr Kaplan, on the other hand, diagnosed Alcohol Dependence, Major Depressive Disorder and Obstructive Sleep Apnoea, and stated that whilst there was no certainty as to why Mr Tully had these problems, difficulties during his childhood, his upbringing, his failure to form a lasting relationship, his impotence and the loss of his job in Hong Kong were probably the major causes.

166. Mr Marsh submitted that the Respondent relied on Dr Kaplan's assessment, and that as to claims of avoidance behaviour, the Tribunal should take into account that Mr Tully continued with another 40 or so flights into Vietnam after the events of June 1966, and that he then went into civilian employment with Cathay Pacific where he flew for a further 19 years.

167. The Tribunal decided on the evidence before it, in particular relying on Mr Tully's accounts of his anguish suffered during June 1966, the accounts of Dr Miller, and on his treatment by Dr Robertson and Ms Humphreys, and concluded that he suffers PTSD which developed after the traumatic events of 27 June 1966. The Tribunal accepted Dr Robertson's view that described generalised anxiety disorder occurred immediately after the events of 27 June 1966, and developed into PTSD which was eventually diagnosed in the 1990s, noting that Dr Robertson also opined that depressive disorder was a complication of PTSD.

168. Accordingly, the Tribunal was satisfied to the requisite standard (reasonable satisfaction of the Tribunal of section 120(4) of the Act), as per Repatriation Commission v Cooke (supra), Repatriation Commission v Budworth (2001) 66 ALD 285 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, that Mr Tully satisfied the tests for diagnosis of the condition of PTSD in DSM-IV.

169. The Tribunal moved then to consider whether Mr Tully's PTSD was war-caused pursuant to section 9 of the Act.

WHETHER MR TULLY'S PTSD WAS WAR-CAUSED PURSUANT TO SECTION 9 OF THE ACT

170. The Tribunal moved then to consider whether a reasonable hypothesis existed linking Mr Tully's claimed PTSD to his war service. In doing so, the Tribunal was required to apply the principles in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") noting as follows:

"... 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 [is] 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). 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 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."

171. With respect to determining when a hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and was approved in Deledio (supra):

"...

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."

172. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of PTSD with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

173. There was no disagreement between the parties, and given the principles enunciated in Gorton (supra) and Keeley (supra), the Tribunal accepted that Instrument No.3 of 1999 as amended by Instrument No.54 of 1999 was the correct SoP to be applied in Mr Tully's case with regard to his condition of PTSD.

174. In applying Deledio (supra), and considering whether an hypothesis can be raised linking Mr Tully's claimed condition of PTSD with his war service, the Tribunal considered all the material before it. The material before the Tribunal was that after the incident with the noisy and bumpy landing and the leaking body bags, Mr Tully went to the bar and drank a lot of beer, and had since then escalated his drinking dramatically, supplementing beer with wine and whiskey. Mr Tully's evidence was that he drank whenever he was not flying, and that he drank to excess to assist with his sleep problems.

175. The Tribunal was mindful also of the medical evidence of Drs Miller, Robertson and Kaplan, and the evidence of Ms Humphreys and Mr Brennan.

176. The Tribunal found from all the material before it that an hypothesis could be raised linking Mr Tully's PTSD with his war service.

177. The Tribunal moved then to consider the appropriate SoP, Instrument No.3 of 1999 as amended by Instrument No.54 of 1999, to decide whether Mr Tully could meet the tests in the SoP, and whether a reasonable hypothesis could thus be found linking his experiences on 27 June 1966, as claimed, with his PTSD. The hypothesis can only be held to be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA 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.

178. The relevant factor to consider in this case was whether the Applicant was:

"...

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

..."

179. A stressor is defined in Instrument No.3 of 1999 as follows:

"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."

180. Accordingly, if Mr Tully can be found to meet the tests in Instrument No.3 of 1999, then a reasonable hypothesis can be raised linking his claimed conditions of PTSD to his war service. In that connection, the Tribunal considered all the evidence, case law and submissions with regard to Mr Tully "experiencing a severe stressor" within the terms of the SoP.

181. The Tribunal considered whether all the material before it regarding the events Mr Tully claimed to have undergone on 27 June 1966 raised a reasonable hypothesis linking the claimed condition of alcohol dependence and PTSD to war service, and whether the noisy and bumpy landing and leaking body bags constituted a "severe stressor" as described above. The Tribunal was mindful of Mr Tully's reaction to the events of 27 June 1966, and whether they were such that Mr Tully 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.

182. The Tribunal has already found in the paragraphs above, that Mr Tully met the threshold tests in both limbs of the definition of PTSD in DSM-IV, that is, he is suffering a psychiatric condition diagnosable as PTSD which arose out of having been exposed to a "traumatic event" (the landing and body bags incidents of 27 June 1966), in which he "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", that his "response involved intense fear, helplessness, or horror", and that the traumatic event is "persistently re-experienced" in the ways described in paragraphs (b), (c), (d), (e) and (f) of the definition.

183. The Tribunal has therefore not repeated the arguments in full here, noting however that the standard of proof in the diagnosis only, is to the reasonable satisfaction of the Tribunal, or on the balance of probabilities, (Repatriation Commission v Cooke (1998) 90 FCR 307 and Repatriation Commission v Budworth (2001) 66 ALD 285).

184. When considering whether the hypothesis is reasonable however, a completely different test is entailed, applying the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Repatriation Commission v Deledio (supra). The Tribunal considered the definition of "severe stressor" and whether Mr Tully experienced, witnessed or was confronted with actual or threat of death or serious injury, or that they were a threat to Mr Tully or other another person's physical integrity. The Tribunal also considered the evidence and submissions about Mr Tully's reactions of fear to the landing, and horror of the smell of the leaking body bags on the flight of 27 June 1966 (as noted above). Noting there is no fact finding at this stage, the Tribunal considered his claims to not be contrary to proven or known scientific facts, or obviously fanciful or otherwise too remote or tenuous. Accordingly, the Tribunal found the connection to be tenable, and was of the opinion that Mr Tully experienced a "severe stressor" prior to the clinical onset of PTSD (as preceded by the generalised anxiety disorder which commenced on 27 June 1966.)

185. The Tribunal found that on the basis of consideration of the whole of the material before it, the Tribunal was of the opinion the material raised a reasonable hypothesis connecting Mr Tully's conditions of PTSD with his operational service, in satisfaction of Factor 5(a) of the SoP.

186. The Tribunal then moved to consider Mr Tully's situation pursuant to section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.

187. The Tribunal took into account the fact Mr Tully was diagnosed with PTSD by Dr Miller and his treating psychiatrist Dr Robertson, and that Dr Kaplan had diagnosed Major Depressive Disorder. The Tribunal was mindful that in applying the tests in DSM-IV and considering Mr Tully's diagnosis, it was satisfied that he suffered PTSD. The Tribunal preferred the evidence of Dr Robertson with regard to the onset of PTSD, which he opined occurred as a result of the traumatic events Mr Tully suffered on 27 June 1966, and which at first manifested as generalised anxiety disorder, notwithstanding that the actual diagnosis of PTSD was not made until the 1990s. The Tribunal was mindful of Mr Tully's evidence that his drinking and smoking increased dramatically after the events of 27 June 1966, and continued until November 2001 when he commenced treatment at Dr Robertson's clinic. The Tribunal accepted Mr Tully's evidence regarding his drinking, and his explanation of how peer pressure had caused him to complete a questionnaire stating in 1959 (T2/3) that he was a moderate drinker.

188. The Tribunal preferred the evidence of Dr Robertson over that of Dr Kaplan who opined that he did not know the origin of Mr Tully's Major Depressive Disorder, but surmised it may have been due to factors in his childhood.

189. The Tribunal found applying section 120(1) of the Act and all the evidence, that it was convinced beyond reasonable doubt that the Applicant's conditions cannot be said to not have been war-caused. Therefore, as a result, Mr Tully's PTSD must be held to be war-caused.

WHETHER MR TULLY'S DEPRESSIVE DISORDER WAS WAR-CAUSED PURSUANT TO SECTION 9 OF THE ACT

190. The Tribunal moved then to consider whether a reasonable hypothesis could be raised linking Mr Tully's depressive disorder to his war service. In doing so, the Tribunal was required to apply the principles in Deledio (supra) which have been reproduced in the paragraphs above.

191. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).

192. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of claimed depressive disorder with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

193. As there was no disagreement between the parties, and given the principles enunciated in Gorton (supra) and Keeley (supra), the Tribunal accepted that Instrument No.58 of 1998 was the correct SoP to be applied in Mr Tully's case with regard to his condition of depressive disorder.

194. In applying Deledio (supra), and considering whether an hypothesis can be raised linking Mr Tully's claimed condition of depressive disorder with his war service, the Tribunal considered all the material before it including the noisy and bumpy landing and leaking body bags. The Tribunal noted that it was common ground that Mr Tully suffered depressive disorder. The Tribunal considered the medical evidence of Dr Robertson, who considered depressive disorder a complication of PTSD, and the evidence of Dr Kaplan who diagnosed Major Depressive Disorder. A consideration of all the material before the Tribunal enabled it to find that that material raised an hypothesis linking Mr Tully's depressive disorder to his war service.

195. The Tribunal moved then to consider the appropriate SoP, Instrument No.58 of 1998, to decide whether Mr Tully could meet the tests in the SoP, and whether a reasonable hypothesis could thus be found linking his experiences of 27 June 1966, as claimed, with his depressive disorder. The hypothesis will only be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service (as required by sections 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.

196. The Tribunal moved then to consider whether Mr Tully's condition fitted the template in Instrument No.58 of 1998. Mr Vincent, in his closing submissions, submitted that Mr Tully met the conditions in Factor 5(c) of the SoP, namely:

"5(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;"

197. He argued that:

"Dr Robertson placed the onset of both the anxiety disorder that developed into PTSD, and the applicant's alcohol abuse, as occurring in the 1960's and following the traumatic events recounted above. Even Dr Kaplan attributes the depression to factors including the applicant's alcohol abuse."

198. Mr Marsh, on the other hand, concentrated on Factor 5(b), stating that: "...based on the applicant's submission the only factor of relevance is 5(b) namely":

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

199. Mr Marsh drew the Tribunal's attention to the definition of "severe psychosocial stressor" which follows:

" ... 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems."

200. He submitted that for the same reasons given in relation to the analysis of "severe stressor" in the SoP relating to PTSD, the Applicant could not meet the definition of "severe psychosocial stressor" in Factor 5(b) of the SoP relating to depressive disorder. He submitted that:

"There must have been an occurrence of similar magnitude to the examples given in the definition, which in this case are lacking. A perceived attack, and the experience of an unpleasant smell cannot be equated with any of the examples in the SoP."

201. Mr Marsh submitted further that the clinical onset of the Applicant's depressive disorder was not within two years of any stressful event on service as required by the SoP. The Tribunal noted the Respondent's reference to Repatriation Commission v Cornelius [2002] FCA 750 as authority for clinical onset.

202. The Tribunal considered the submissions of the parties, and referred to the description of "severe psychosocial stressor" which listed a number of events, such as death or serious injury of a close friend or relative, assault, severe illness or injury or experiencing a loss such as divorce or separation.. The relevant events which can be taken into account are of course not restricted to those listed, although the Tribunal accepted that the magnitude would need to be similar.

203. The Tribunal, having held that Mr Tully suffered a "severe stressor" on 27 June 1966, (when he landed at Vung Tau, and experienced the leaking body bags) in connection with finding a reasonable hypothesis in regard to PTSD, finds that those events (the landing at Vung Tau on 27 June 1966 and the leaking body bags), can be equated to an "identifiable occurrence" in SoP No. 58 of 1998. In that regard, the Tribunal referred also to Benjamin v Repatriation Commission (supra), noting that the traumatic event has to be of "sufficient magnitude" and "particular significance" to generate reactions of the scale required to satisfy the definition, which refers to "substantial distress". The Tribunal was satisfied that the events of 27 June 1966 which it has considered in the paragraphs above, could be equated to an "identifiable occurrence" in SoP No. 58 of 1998.

204. As also noted above, the Tribunal was satisfied that Mr Tully's reaction to those events evoked feelings of such horror that he suffered generalised anxiety disorder, a psychiatric illness, which later developed into PTSD. The Tribunal considered the evidence and submissions about Mr Tully's reaction to the landing, and the odour of the leaking body bags on the flight of 27 June 1966, (as noted above). The Tribunal, noting there is no fact finding at this stage, considered his claims to not be contrary to proven or known scientific facts, nor obviously fanciful or otherwise too remote or tenuous. Accordingly, the Tribunal found the connection to be tenable, and that Mr Tully experienced a "severe psychosocial stressor" prior to the clinical onset of PTSD (as preceded by the generalised anxiety disorder and depressive disorder which commenced as a result of the events of 27 June 1966.)

205. Mr Tully's account of his feelings in response to the events of 27 June 1966 was that they "evoked feelings of substantial distress".. The Tribunal considered that it was not contrary to scientific facts, or fanciful or too remote that the events of 27 June 1966 as experienced by Mr Tully, and as reacted to by him, met the definition of "severe psychosocial stressor" in SoP No.58 of 1998. The Tribunal noted Dr Robertson's opinion regarding a spectrum of psychiatric disorders, noting that Mr Tully's depressive disorder and generalised anxiety disorder arose out of the events of 27 June 1966. The Tribunal did not find that to be contrary to scientific facts or fanciful or too remote, and held therefore that Mr Tully met the template in Factor 5.(b) of the SoP, in that he experienced a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder.

206. The Tribunal then moved to consider the situation with regard to Factor 5.(c) of the SoP.

207. The Tribunal has noted above Dr Robertson's diagnosis of Mr Tully, namely that he suffered generalised anxiety disorder, a clinically significant psychiatric condition, occurring as a result of the events of 27 June 1966. Dr Robertson expressed the view that there was a spectrum of psychiatric illness arising out of the events of 27 June 1966, with Mr Tully developing PTSD with depressive disorder, as time progressed. According to Dr Robertson the clinical onset of PTSD was in the 1990s but he was of the view that "I am confident that the process that finally evolved into PTSD was manifest by 1966. ... there is a spectrum of disorders that occur after the traumatic event and I think the evidence was clinically this man was suffering from those in the 60s. It may not have evolved into its most florid form until recently." The Tribunal noted of course Dr Kaplan's view that Mr Tully's Major Depressive Disorder was not war-caused, and Dr Robertson's view that Dr Kaplan may not have seen Mr Tully when his PTSD was at its worst.

208. Accordingly, the Tribunal held that the material before it in regard to Factor 5.(c) in SoP No. 58 of 1998, that is, having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder, was not contrary to scientific fact, and not too remote or tenuous. Thus, a reasonable hypothesis could be raised linking Mr Tully's depressive disorder with his war service.

209. The Tribunal then moved to consider Mr Tully's situation with regard to section 120(1) of the Act.

210. Having accepted that the situation of Mr Tully's first flight into Vung Tau on 27 June 1966 qualified as a "severe psychosocial stressor", and having accepted his account of his extreme reaction to the noisy landing and to the leaking body bags, the Tribunal then took into account the agreement of the parties that Mr Tully suffered depressive disorder as diagnosed by Drs Miller and Robertson (complication of PTSD), and Kaplan. The Tribunal accepted that the immediate reaction to the events was as described in the paragraphs above, and that Mr Tully's reaction was to suffer generalised anxiety disorder which evolved into further psychiatric problems, viz PTSD. The Tribunal noted that Dr Robertson opined as follows:

"I am confident that the process that finally evolved into PTSD was manifest by 1966. ... there is a spectrum of disorders that occur after the traumatic event and I think the evidence was clinically this man was suffering from those in the 60s. It may not have evolved into its most florid form until recently."

211. The Tribunal was mindful of Mr Marsh's submission that between 1966 and 1971 the Applicant's psychiatric assessment was "normal". The Tribunal was satisfied from the evidence, however, that Mr Tully had been a moderate drinker before the events of 27 June 1966, and that he abused alcohol on and from 27 June 1966 until November 2001. The Tribunal accepted Mr Tully's evidence of his understanding of the culture of the RAAF, that he was required to "drink", and had hence completed the questionnaire at T2/3 to indicate he drank moderately, when in fact he was an occasional drinker. The Tribunal accepted that his escalation of drinking was after the events of 27 June 1966.

212. The Tribunal applied section 120(1) of the Act, noting that the claim would succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt or 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. Taking into account all the evidence, the Tribunal was satisfied that no point was raised that convinced it beyond reasonable doubt that the Applicant's condition of depressive disorder could not be said to have been war-caused. Therefore, as a result, Mr Tully's depressive disorder must be held to be war-caused pursuant to section 9 of the Act.

WHETHER MR TULLY'S ALCOHOL DEPENDENCE WAS WAR-CAUSED WITHIN THE TERMS OF SECTION 9 OF THE ACT

213. The Tribunal moved then to consider whether a reasonable hypothesis could be raised linking Mr Tully's alcohol dependence to his war service. In doing so, the Tribunal was required to apply the principles enunciated in Repatriation Commission v) Deledio (supra) which have been reproduced in the paragraphs above.

214. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission and approved in Deledio (supra).

215. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of alcohol dependence with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

216. There was no disagreement between the parties, and given the principles enunciated in Gorton (supra), and Keeley (supra), the Tribunal accepted that Instrument No.76 of 1998 covering alcohol dependence was the correct SoP to be applied in Mr Tully's case.

217. The Tribunal considered all the material before it, including the evidence of Mr Tully, Mr Bell, and the doctors who examined the Applicant. The Tribunal was mindful of the evidence before it indicating that Mr Tully stated that he was a moderate drinker when he was examined for aircrew in 1959, (T2/3), his explanation of that statement, and his evidence that his alcohol consumption escalated considerably and immediately after the events of 27 June 1966. The Tribunal was mindful that both Drs Robertson and Kaplan diagnosed alcohol dependence. The Tribunal found that a consideration of all the material before it regarding Mr Tully's alcohol dependence raised an hypothesis connecting his alcohol dependence to his war service.

218. The Tribunal had then to consider the relevant Factors in SoP No. 76 of 1998 in order to establish whether Mr Tully's experiences on 27 June 1966, as claimed, could be linked with the development of his alcohol dependence, and hence, whether the hypothesis raised was reasonable. The hypothesis will only be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service (as required by sections 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.

219. Those Factors were:

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

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

220. In considering Factors 5.(a) and (b), the Tribunal noted, as it already has in the paragraphs above in relation to the finding of PTSD as war-caused, that Mr Tully's experience of, and reaction to the events of 27 June 1966, (the landing at Vung Tau and the leaking body bags), were "severe stressors". The Tribunal noted that those events evoked feelings of such horror that Mr Tully suffered a psychiatric illness, generalised anxiety disorder, which later developed into PTSD, with depressive disorder.

221. The Tribunal noted also the evidence of Mr Tully, that, although he had been a social drinker previously, when he completed his work on 27 June 1966, he drank to excess in order to calm his nerves and assist with sleep. Mr Tully's evidence was that from that day, he constantly drank to excess when he was not flying, until he ceased whilst undertaking Dr Robertson's program. The Tribunal was mindful that Dr Robertson dated the onset of Mr Tully's alcohol dependence to the 1960s and connected it with his war service, while Dr Kaplan acknowledged alcohol dependence, (and Major Depressive Disorder), but considered it of unknown origin (postulating childhood experiences, the loss of the job in Hong Kong, impotence amongst others), and did not date the onset.

222. The Tribunal considered the evidence and submissions on Mr Tully's reaction to the landing and the leaking body bags on the flight of 27 June 1966, (as discussed above), and noting that there is no fact finding at this stage, the Tribunal considered the events, and found Mr Tully's claims to not be contrary to proven or known scientific facts, nor obviously fanciful or otherwise too remote or tenuous. Accordingly, the Tribunal found the connection to be tenable, and that Mr Tully experienced a "severe stressor" prior to the clinical onset of alcohol dependence which was present from the 1960s, in satisfaction of Factor 5.(b) of the SoP. Accordingly, a reasonable hypothesis could be raised linking Mr Tully's experiences to the development of his alcohol dependence.

223. The Tribunal has also held above that Mr Tully's landing at Vung Tau, and his presence on the aircraft with leaking body bags constituted a "severe stressor" within the terms of the SoP, which caused him to develop generalised anxiety disorder (later diagnosed as PTSD), as a reaction to the events of 27 June 1966. The Tribunal did not find the connection as contrary to scientific fact, or too remote, and concluded Mr Tully was thus suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence in satisfaction of Factor 5.(a), thus raising a reasonable hypothesis connecting the psychiatric disorder to the clinical onset of alcohol dependence.

224. Turning then to consider the application of section 120(1) of the Act, the Tribunal noted that the claim would succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

225. The Tribunal noted that Mr Vincent submitted the Applicant had been an occasional drinker before the events of 27 June 1966, and that his evidence was that from that day on he drank to excess until he ceased doing so under Dr Robertson's care in November 2001. The Applicant, he contended, had stated in his evidence, that he made a statement in 1959 (T2/3), regarding his drinking, because he had been told the culture of RAAF was drinking, and that the RAAF was looking for smokers and drinkers.

226. Mr Marsh submitted that the explanation regarding the statement was self-serving, and that by 1966, the Applicant, aged 30, had been drinking, at least moderately, for years.

227. The Tribunal was mindful that the parties did not dispute that Mr Tully suffered alcohol dependence. The weight of the medical evidence supported this diagnosis, and the Tribunal accepted that this was the correct diagnosis. The Tribunal accepted the Applicant's submissions whereby the Applicant's alcohol consumption was substantially increased after the events of 27 June 1966.

228. The Tribunal was also mindful of Mr Marsh's submissions that Mr Tully continued to fly at least 40 further missions into Vietnam, and that he flew for 19 years with Cathay Pacific. That was not in dispute, however the Tribunal noted Mr Tully's contract was not renewed at age 55, and that it was likely this had been for reasons related to his alcohol abuse.

229. Thus, the Tribunal could not be satisfied beyond reasonable doubt, that the evidence before it with regard to Mr Tully's alcohol dependence disproved any relevant matters indicating that his alcohol dependence was not war-caused pursuant to section 120(1) of the Act. The Tribunal was accordingly satisfied that Mr Tully's alcohol dependence was war-caused within the terms of the legislation.

WHETHER MR TULLY'S HYPERTENSION WAS WAR-CAUSED WITHIN THE TERMS OF S 9 OF THE ACT

230. The Tribunal moved then to consider whether a reasonable hypothesis existed linking Mr Tully's hypertension to his war service. In doing so, the Tribunal was required to apply the principles in Repatriation Commission v Deledio (supra) which have been reproduced in the paragraphs above.

231. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).

232. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of claimed hypertension with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

233. As there was no disagreement between the parties, and given the principles enunciated in Gorton (supra), and Keeley (supra), the Tribunal accepted that Instrument No.31 of 2001 was the correct SoP to be applied in Mr Tully's case with regard to his condition of hypertension.

234. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Tully's claimed condition of hypertension with his war service, the Tribunal considered all the material before it. The Tribunal noted that it was common ground that Mr Tully suffered hypertension. Mr Marsh submitted that the Respondent accepted Mr Tully had been suffering hypertension at least since 1998, when Dr Ferris treated him with Accupril (T9/51). It was submitted on behalf of Mr Tully that he had probably been treated for hypertension by his general practitioner since 1994.

235. Accordingly, consideration of all the material before the Tribunal pointed to the raising of an hypothesis linking Mr Tully's hypertension to his war service.

236. The Tribunal moved then to consider the appropriate SoP, Instrument No.3 of 1999, to decide whether Mr Tully could meet the tests in the SoP, and whether a reasonable hypothesis could thus be found linking his experiences on 27 June 1966, as claimed, with his hypertension. The hypothesis will only be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service (as required by sections 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.

237. The parties agreed, and the Tribunal accepted that the applicable SoP was Instrument No.31 of 2001, and that should the Tribunal find that the Applicant's alcohol dependence to be war-caused, then he satisfied Factor 5.(b) of that SoP.

"5.(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension."

238. The Tribunal considered the evidence before it, and having accepted above that the Applicant's alcohol dependence was war-caused, it was able to conclude that Mr Tully's satisfied Factor 5.(b) of the SoP, noting that clinical onset of hypertension may not have been recognised until it had been in place for some time, but noting also, that treatment for hypertension did not commence until 1994 or 1998. The Tribunal considered that the hypothesis linking Mr Tully's hypertension with his alcohol dependence was neither contrary to known scientific facts, neither too remote, nor otherwise fanciful. Thus a reasonable hypothesis was in place linking Mr Tully's hypertension with his war service.

239. The Tribunal moved then to consider the application pursuant to section 120(1) of the Act, noting that the claim would succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis. The Tribunal in considering Mr Tully's hypertension accepted the agreement of the parties that hypertension may be present and symptomless, and noted Mr Vincent's submission that Mr Tully's treatment of his hypertension began with his general practitioner in 1994. The Tribunal was mindful also of the Respondent's submission that the hypertension commenced with treatment by Dr Ferris in 1998. The Tribunal accepted the evidence of the Applicant that he had escalated his drinking seriously following the events of 27 June 1966, and that he continued to abuse alcohol until he entered Dr Robertson's program in November 2001. The Tribunal was also mindful of Mr Marsh's submissions that Mr Tully continued to fly in excess of 40 further missions into Vietnam, and that he flew for 19 years with Cathay Pacific. That was not in dispute. However, the Tribunal noted Mr Tully's contract was not renewed at age 55, and that it was likely this had been for reasons related to his alcohol consumption.

240. The Tribunal could not be satisfied beyond reasonable doubt that the evidence with regard to Mr Tully's hypertension disproved any relevant matters indicating his hypertension was not war-caused pursuant to section 120(1) of the Act.

241. The Tribunal was accordingly satisfied that Mr Tully's hypertension was war-caused within the terms of the legislation.

WHETHER MR TULLY'S IMPOTENCE WAS WAR-CAUSED WITHIN THE TERMS OF SECTION 9 OF THE ACT

242. The Tribunal moved then to consider whether a reasonable hypothesis could be raised linking Mr Tully's impotence to his war service. In doing so, the Tribunal was required to apply the principles in Repatriation Commission v Deledio (supra), which have been reproduced in the paragraphs above.

243. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).

244. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of claimed impotence with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

245. As there was no disagreement between the parties, and given the principles enunciated in Gorton (supra), and Keeley (supra), the Tribunal accepted that Instrument No.97 of 1996 as amended by Instrument No.16 of 2002 was the correct SoP to be applied in Mr Tully's case with regard to his condition of impotence.

246. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Tully's claimed condition of impotence with his war service, the Tribunal considered all the material before it. A consideration of all the material before the Tribunal, namely the events Mr Tully described as having occurred on 27 June 1966, Mr Tully's reaction to those, including his statements regarding the origins of his impotence, and the medical evidence, enabled the Tribunal to find that that material raised an hypothesis linking Mr Tully's impotence to his war service.

247. The Tribunal moved then to consider the appropriate SoP, Instrument No. 97 of 1996, as amended by Instrument No. 16 of 2002 to decide whether Mr Tully could meet the tests in the SoP, and whether a reasonable hypothesis could thus be found linking his experiences on 27 June 1966, as claimed, with his impotence. The hypothesis will only be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised 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 sections 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.

248. The relevant Factors were 5.(a) and 5.(n) which follow:

"(a) suffering from a specified psychiatric condition at the time of the clinical onset of impotence;

(n) suffering from psychoactive substance abuse or dependence involving alcohol at the time of the clinical onset of impotence;"

249. Mr Vincent referred the Tribunal to Mr Tully's evidence, where he had stated "[a]fter 27 June 1966 I was never a man again. Never, ever. That was after the landing and the body bags. It affected me to such an extent I haven't even talked to my psychiatrist about this one." He submitted Mr Tully had not had relationships since that time, and that:

"Dr Robertson considered the impotence to be a consequence of the Applicant's psychiatric problems, specifically a consequence of the anxiety disorder that evolved into PTSD." (Factor 5.(a))

250. Mr Vincent submitted further in regard to Factor 5.(n), that the Applicant relied also on Dr Robertson's diagnosis of alcohol dependence.

251. The Tribunal was mindful also of the Respondent's submission that there was no specified psychiatric condition or alcohol abuse or dependence as expressed in the paragraphs above (relating to alcohol dependence and PTSD).

252. The Tribunal held from the evidence before it that the hypothesis raised connecting Mr Tully's impotence to his war service and the events of 27 June 1966 as described above, was neither contrary to known scientific facts nor otherwise fanciful. The Tribunal found that linking Mr Tully's impotence, which he stated occurred immediately after those events, to the psychiatric condition and alcohol dependence which developed as a result, in satisfaction of Factors 5.(a) and (n), was not contrary to scientific facts or otherwise fanciful, and not too remote or tenuous. Accordingly the hypothesis can be found to be reasonable on the basis of all the material before the Tribunal, and the events of 27 June 1966.

253. The Tribunal moved then to consider the claim pursuant to section 120(1) of the Act, noting that the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.

254. The Tribunal considered the Applicant's evidence which was that: "After 27 June 1966 I was never a man again. Never, ever. That was after the landing and the body bags." The Tribunal was mindful that Mr Tully admitted he had not raised impotence with his psychiatrist. It noted the medical evidence that impotence arose out of the alcohol dependence and psychiatric condition which developed from 27 June 1966 (Dr Robertson), and the opinion of Dr Kaplan, who did not consider either the Major Depressive Disorder nor the alcohol dependence were war-caused.

255. The Tribunal considered its earlier findings as detailed in the paragraphs above, that the events of 27 June 1966 to which Mr Tully had been subject, were of the nature of a severe stressor such that Mr Tully developed alcohol dependence and generalised anxiety disorder which in the 1990s was diagnosed as PTSD.

256. The Tribunal found that it could not be satisfied beyond reasonable doubt, that the material before it with regard to Mr Tully's impotence disproved any relevant matters indicating that his impotence was not war-caused pursuant to section 120(1) of the Act. The Tribunal was accordingly satisfied that Mr Tully's impotence was war-caused within the terms of the legislation.

WHETHER MR TULLY'S LUMBAR SPONDYLOSIS WAS WAR-CAUSED WITHIN THE TERMS OF S 9 OF THE ACT

257. The Tribunal moved then to consider whether a reasonable hypothesis could be raised linking Mr Tully's lumbar spondylosis to his war service. In doing so, the Tribunal was required to apply the principles in Repatriation Commission v Deledio (supra) which have been reproduced in the paragraphs above.

258. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).

259. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Tully's condition of claimed lumbar spondylosis with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue.

260. The Tribunal noted that the Respondent made his submissions on the basis of Instrument No.27 of 1999 regarding the Applicant's lumbar spondylosis, which the parties agreed he suffers. Instrument No.52 of 1998 was the relevant SoP at the time of the primary decision. However, the most recent SoP concerning Lumbar Spondylosis is Instrument No. 46 of 2002. Applying the principles enunciated in Gorton (supra), and Keeley (supra), the Tribunal is entitled to accept the submissions of the Applicant, and apply Instrument No.46 of 2002 when assessing whether Mr Tully's condition of lumbar spondylosis was war-caused pursuant to the legislation.

261. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Tully's claimed condition of lumbar spondylosis with his war service, the Tribunal considered all the material before it. The Tribunal noted that it was common ground that Mr Tully suffered lumbar spondylosis (Drs Hobcroft and Bodel). The Tribunal noted the medical evidence, as also Mr Tully's claims that "something snapped" in his back while making his bed in 1958 (Exhibit R2), and recalled an incident in Vung Tau in which he had been lifting boxes which turned out to be heavier than he thought. He recounted suffering stabbing pain in his lower back. A consideration of all the material before the Tribunal with regard to Mr Tully's lumbar spine enabled it to find that that material raised an hypothesis linking Mr Tully's lumbar spondylosis to his war service.

262. The Tribunal moved then to consider the appropriate SoP, Instrument No.46 of 2002, to decide whether Mr Tully could meet the tests in the SoP, and whether a reasonable hypothesis could thus be found linking his experiences on 27 June 1966, as claimed, with his lumbar spondylosis. The hypothesis will only be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service (as required by sections 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.

263. The Tribunal moved then to consider whether Mr Tully's condition fitted the template in Instrument No.27 of 1999 or the later SoP No.46 of 2002. The Tribunal noted a further Amendment to the SoP concerning Lumbar Spondylosis, Instrument No.77 of 2002, but as the Amendment did not affect the instant case, the Tribunal neither sought further submissions on it, nor makes further comment upon it.

264. The Tribunal noted that Mr Vincent, in his first closing submissions (dated 13 May 2002), submitted that Mr Tully met the conditions in Factor 5.(h) and 5.(s) of the SoP No.27 of 1999, namely:

"5.(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar

spondylosis;

(s) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis;"

265. The Tribunal noted that the definition of "trauma" in the SoP No. 27 of 1999 stated that it was:

"a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

(a) immobilisation of the lumbar spine by splinting, or similar external agent; or

(b) injection of corticosteroids or local anaesthetics into the lumbar spine

(c) surgery to the lumbar spine."

266. Mr Marsh submitted at paragraph 15 and 16 of the Respondent's closing submissions:

"15.The respondent submits that the RMA's `Explanatory Notes for Tabling' published when the revised definition of trauma first appeared in a SoP (Instrument 358 of 1995) provides assistance to the Tribunal in forming a view about the kind of injury contemplated by `trauma to the lumbar spine'.

16. The `Explanatory Notes' state inter alia, `The new definition reflects the fact that initial internal damage to the joint or disc, and not only overlying soft tissue injury is needed to increase the risk of lumbar spondylosis.' See attached. In Whitbourne and Repatriation Commission [2001] AATA 7, Purvis J noted and referred to the Notes in his decision and reasons, even though the Tribunal in that matter was applying a later SoP."

267. Mr Vincent, in his later closing submissions in reply (October 2002), drew the Tribunal's attention to Instrument No.46 of 2002, submitting that the relevant Factors were 5.(h) and 5.(u) which follow as relevant:

"5.(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;or

(u) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis;"

268. Mr Vincent submitted that the definition of "trauma" in Instrument No.46 of 2002 which follows as relevant, did not require the "symptoms and signs of pain" referred to in the definition to be "acute" as the earlier SoP specified. Accordingly the definition of "trauma" in Instrument No.46 of 2002 was:

"a discrete injury to the lumbar spine that causes the development within 24 hours of the injury being sustained, of symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either ..." (the Tribunal's emphasis).

269. The definition was therefore more favourable to the Applicant, and meant that the injury giving rise to the lumbar spondylosis needed only to be an injury which was discrete, and give rise to the prescribed symptoms, but that it did not need to be acute. Mr Vincent submitted that the "discrete injury" intended in Instrument No.46 of 2002 had no requirement therefore of any particular intensity, neither did the symptoms. He submitted that in any case, significant was only to be contrasted with insignificant, that is symptoms which would be immaterial or ineffective. Mr Vincent added:

"Thus to require significant symptoms and signs as a threshold to be met to raise a hypothesis of trauma, can mean no more than that a hypothesis is required to raise identifiable signs and symptoms of 7 days' duration."

270. As to the Applicant's reaction to the box lifting event which he believed occurred on 14 August 1968, the Tribunal noted that Mr Tully gave evidence of a stabbing pain in his lower back when it occurred, but admitted he continued with his flying, and only a two day rest when he arrived in Butterworth. Mr Tully gave evidence of taking analgesics, and then embarking on a trip back to Richmond. He told the Tribunal that after a rest of some seven days back in Australia, he made a short flight to Nowra, and still had pain, although it was improving.

271. The Tribunal noted medical evidence in relation to the earlier bed making incident, and the date of onset of lumbar spondylosis, including the evidence of Drs Hobcroft and Cameron.

272. The Tribunal took into account that the material before it regarding an incident Mr Tully experienced with loading boxes constituted a trauma within the terms of SoP No.46 of 2002, and that a discrete injury occurred to the lumbar spine. However the Tribunal considered from the evidence which was that Mr Tully continued with his scheduled flight that there was no evidence of a development within 24 hours of the injury being sustained of symptoms and signs of pain and tenderness, and no record of pain on movement of the lumbar spine. Mr Tully's recollection was however, that symptoms and signs lasted for a period of at least seven days following their onset.

273. The Tribunal was mindful of the evidence that Mr Tully had had in 1958, prior to his operational service, an episode of injury to his back, and that the incident with the loading of boxes during operational service, it was submitted, may, in the alternative, have aggravated his existing injury.

274. The Tribunal considered the events that were claimed to have occurred, and the symptoms and signs of these as reported, and Mr Tully's evidence that they lasted for a period of some seven days. There was no record of a cessation of flying, and no medical evidence. The Tribunal held that the above discussed material did not raise a reasonable hypothesis that in the incident with the lifting of boxes, Mr Tully suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which was diagnosed first by Dr Cameron (T3/9). The Tribunal considered that the hypothesis was contrary to known scientific facts and too remote, and accordingly held that a reasonable hypothesis could not be found linking Mr Tully's lumbar spondylosis to his war-service in satisfaction of Factors 5.(h) or (u) of the relevant SoP.

275. In case it is in error, the Tribunal then turned to consider the application pursuant to section 120(1), of the Act, noting that the claim will succeed unless one of more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable, thus disproving, beyond reasonable doubt, the hypothesis.

276. In doing so, the Tribunal considered the evidence of the Applicant and the medical evidence. The Tribunal was not satisfied that the date of the incident was 14 August 1968, as deduced by the Applicant, despite Mr Vincent's submissions that T3/8A recorded a medical examination with a record of two months backache and a suspected disc lesion, and Dr Bodel's report at Exhibit R6, which nominated 14 August 1968 as the likely date of injury.

277. The Tribunal noted also Dr Hopcroft recorded in October 1998, that the incident was 2 December 1969 (T15/66). Further Dr Hopcroft recorded that Mr Tully "did not go off duty". Dr Bodel also recorded that the Applicant did not seek medical advice at any stage immediately after the injury, and had no time off work. (Exhibit R6). The medical evidence was inconsistent with Mr Tully's account of pain and lying flat on his back. The evidence before the Tribunal was that Mr Tully continued performing his normal duties of flight engineer, and did not seek medical attention, so that although the boxes incident may well have occurred, the Tribunal could not be satisfied when it occurred and that it was sufficiently serious to be classed as a trauma within the terms of the SoP. (Harris v Repatriation Commission [2000] FCA 873.)

278. Mr Tully was also examined and X-rayed by RAAF doctors (Exhibit R2) in November and December 1968, and the reports recorded information regarding intermittent back trouble coming on after inactivity, which was inconsistent with symptoms and signs of altered mobility or lack of range of movement of the spine after the incident with the lifting of boxes. (SoP No.46 of 2002).

279. The Tribunal was mindful also of Dr Bodel's opinion regarding whether the lumbar spondylosis may have been suffered in the earlier bedmaking incident. Relevantly he wrote (Exhibit R6): "Because of the uncertainty of the history it is difficult to know whether lumbar spondylosis was present at the time of his injury in 1968 ..." The Tribunal was not satisfied, in considering aggravation, that the bed making incident in 1958 caused any lumbar spondylosis, or that the box lifting event came on to an already damaged back.

280. Thus, there were facts disproving the reasonable hypothesis, and the Tribunal was satisfied beyond reasonable doubt, from the material before it regarding the effect of the lifting boxes event, that Mr Tully's lumbar spondylosis was not war-caused pursuant to section 120(1) of the Act. The Tribunal was accordingly satisfied that Mr Tully's lumbar spondylosis was not war-caused within the terms of the legislation, and his application failed in that regard.

DECISION

281. The Tribunal varies the decision of the Repatriation Commission dated 7 January 1999 as affirmed by the Veterans' Review Board made on 21 June 2000, which refused the claims of Mr David Stuart Tully for Post Traumatic Stress Disorder, chronic bronchitis, chronic solar skin damage, alcohol dependence or alcohol abuse, acquired cataracts, lumbar spondylosis, chronic rhinitis, hypertension, tinea, bilateral sensorineural hearing loss with tinnitus, impotence and gastro-oesophageal reflux disease

282. The Tribunal finds that Mr Tully's conditions of Post Traumatic Stress Disorder, depressive disorder, alcohol dependence, hypertension and impotence are war-caused pursuant to section 9 of the Act.

283. The Tribunal affirms the decision of the Repatriation Commission as affirmed by the Veterans' Review Board in regard to lumbar spondylosis, and finds that Mr Tully's lumbar spondylosis is not war-caused pursuant to section 9 of the Act.

284. The Applicant did not pursue his claims in relation to chronic bronchitis, chronic solar skin damage, acquired cataracts, chronic rhinitis, tinea, bilateral sensorineural hearing loss with tinnitus, and gastro-oesophageal reflux disease before this Tribunal, and accordingly, not having heard evidence with regard to these, the Tribunal affirmed the decisions of the Respondent in regard to them.

285. The Tribunal notes that the date of effect is 25 February 1998, noting also that the date of effect for any conditions relating to the 1964/5 period would be 1 January 2001.

286. The matter is remitted to the Repatriation Commission for assessment of Mr Tully's entitlement to disability pension.

I certify that the 286 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger and Dr J Campbell, Member

Signed: L Bonouvrie

Associate

Dates of Hearing 13 September 2001

19 February 2002

Date of Written Submissions 26.10.2002 (Final Closing Submissions received)

Date of Decision 7 February 2003

Counsel for the Applicant Mr M Vincent Legal Aid Commission

For the Applicant Ms V Doran, Great Lakes Vietnam Veterans' Association

Advocate for the Respondent Mr J Marsh, Repatriation Commission