Stevens and Repatriation Commission [2003] AATA 132 (11 February 2003)

Last Updated: 12 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/260

VETERANS' APPEALS DIVISION	)
	Re	CYRIL RICHARD STEVENS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member J. A. Kiosoglous MBE

Date 11 February 2003

Place Adelaide

Decision

1. The decision under review, insofar as it relates to Generalised Anxiety Disorder, is set aside, and the matter remitted to the Respondent for reconsideration in accordance with the finding that the applicant's Generalised Anxiety Disorder is war-caused. 2. The decision under review, insofar as it relates to osteoarthrosis of both knees, is affirmed.

(signed)

J. A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - operational service - whether generalised anxiety disorder war-caused - meaning of "experiencing a severe psycho-social stressor" - time of onset of condition - whether osteoarthrosis of both knees war-caused - reasonable hypothesis - relevant Statements of Principles

Veterans' Entitlements Act 1986 ss9, 120(1)(3), 120A

Amendment of Statement of Principles concerning Osteoarthrosis - Instrument No. 19 of 1999

Statement of Principles concerning Osteoarthrosis - Instrument No. 41 of 1998

Statement of Principles concerning Generalised Anxiety Disorder - Instrument No. 1 of 2000

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

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

11 February 2003

Senior Member J. A. Kiosoglous MBE

1. This is an application by Cyril Richard Glen Stevens (the applicant) for review of a decision of the Repatriation Commission dated 4 April 2000 (T8) as affirmed by the Veterans' Review Board (VRB) on 5 April 2001 (T2) rejecting the applicant's claim that he suffered war caused injury pursuant to s9 of the Veterans' Entitlements Act 1986 ("the Act"). The rejected conditions were generalised anxiety disorder and osteoarthrosis of the knees.

2. The Tribunal received into evidence the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with thirteen exhibits, eleven lodged by the applicant (Exhibits A1-A11) and two lodged by the respondent (Exhibits R1-R2). In addition the Tribunal heard evidence from the applicant; Commodore Phillip Mulcare, historian; Dr Marty Ewer, psychiatrist; and Dr Christopher Butcher, orthopaedic surgeon. The applicant was represented by Mr T White, of Counsel, and Mr G Doube, a departmental advocate, represented the respondent.

ISSUES

3. It was not disputed that the applicant suffers from a generalised anxiety disorder (GAD) or from osteoarthrosis of the knees.

4. In issue is whether these conditions are war-caused. In particular, whether or not the applicant satisfies the relevant Statements of Principle (SoP). Instrument No. 41 of 1998, as amended by Instrument No. 19 of 1999, pertains to osteoarthrosis, while Instrument No. 1 of 2000 pertains to generalised anxiety disorder (GAD).

LEGISLATION

5. The applicant is claiming that he suffered injury arising out of his operational war service and thus comes within the ambit of s9 of the Act. The standard of proof required, pursuant to s120 of the Act, is that the facts before the Tribunal must raise a reasonable hypothesis that the applicant's injury arose out of his service. Once such a reasonable hypothesis is raised, the applicant will succeed unless the respondent shows beyond reasonable doubt that the hypothesis is not true. Following s120A of the Act, for a hypothesis to be reasonable, the condition must fit a Statement of Principles. The relevant SoP's in this matter are those previously outlined above.

6. Subsections 120(1) and 120(3) of the Act provide:

"120 (1) Where a claim under Part II for a pension in respect of the

incapacity from injury or disease of a veteran, or of the death of a veteran, relates to 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.

120 (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; or

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

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

HISTORY OF THE APPLICATION

7. The applicant was born on 2 August 1947. He served in the Royal Australian Navy from 22 August 1964 to 21 August 1973. He served in the Vietnam War on the HMAS Sydney, making six voyages to Vung Tau Harbour. He completed six periods that qualify as "operational service" under the Act. These are:

* 24 April 1966 - 18 May 1966

* 25 May 1966 - 11 June 1966

* 20 December 1967 - 3 January 1968

* 17 January 1968 - 16 February 1968

* 8 February 1969 - 25 February 1969

* 8 May 1969 - 30 May 1969

The applicant's service also includes a period of "eligible service" under the Act from 7 December 1972 until 21 August 1973.

8. On 10 February 2000 the applicant lodged a claim with the respondent for, among other things, "emotional and behavioural" disability and "degenerative arthritis" (T5). On 4 April 2000 the respondent rejected the claim for these conditions (T8). On 10 April 2000, the applicant lodged an appeal to the VRB seeking a review of the determination of the respondent, referring to his "anxiety condition" and "knee problems" as being the conditions at issue (T9). On 5 April 2001, the VRB affirmed the decision of the respondent (T2). An application was then lodged on 18 July 2001 by the applicant with this Tribunal, seeking review of the decision of the VRB (T1).

APPLICANT'S EVIDENCE

9. Mr Stevens said he joined the Navy on or about 24 August 1964. He was then 17 years of age. He said that after enlisting he was sent for approximately 16 to 18 weeks of training at HMAS Cerberus, a land base, in Melbourne. He said that his training involved First Aid, seamanship and a certain amount of "schooling" in the form of spelling, arithmetic and so on. When he had completed this initial training, he was sent to serve on the HMAS Gascoyne, a survey ship, which was also used to conduct ordinary seaman training. On that ship, Mr Stevens said he worked principally in Australian waters, undertaking duties as a seaman-stoker together with other seaman's duties. After completing his term on HMAS Gascoyne, Mr Stevens returned to HMAS Gascoyne for further training in mechanical engineering. He stated that this lasted for about 16 weeks, "maybe more, maybe less".. He was then posted to the HMAS Sydney. He said that this was in about April 1966. He was then 18 years of age. He could not recall exact dates and said he relied on his having read "operationals" in establishing dates and chronology. Mr Stevens described a number of incidents that occurred during his periods of operational service.

10. Mr Stevens said that before his first trip he did not know much about the voyage, for instance he did not know what route the ship would take, nor where it would anchor.

11. Mr Stevens stated that on his first trip to Vung Tau harbour, his main duties were in the engine or boiler room. He had to take temperature readings inside and outside the boiler room space. He said that sometimes he had to go down the shaft tunnel to check some gauges. He stated that this was a confined tunnel at the bottom of the ship. It was accessed by going down a hatch at the front of the ship, descending "15 feet or so" and then walking along a "catwalk".. The tunnel was next to the water outside the ship. The gauges had to be checked every hour, 24 hours a day. This task had to be performed while in Vung Tau Harbour. Mr Stevens stated that when he was in the shaft tunnel checking the gauges, he heard an explosion. When he heard the noise he was on his own and there was "not much room".. There was no way to communicate with anyone else on the ship. At the time he heard the noise he did not know what it was, but was later told that it was a scare charge dropped from the side of the ship to deter enemy divers. He said he had no warning that scare charges would be used. When asked whether it was broadcast on the ship, he stated that he did not hear any such broadcast, that one often did not hear all the broadcasts in the boiler room due to surrounding noise and the presence of so many out of the way "nooks and crannies", and that there was no broadcast system in the shaft tunnel. Mr Stevens said that it was "terrifying" and a "shock" to hear such a loud and unexpected noise. He said at another point that, speaking figuratively, "I shit my pants." He had never previously heard anything louder than a rifle shot. He was so frightened that when he was asked to repeat the shaft tunnel gauge readings the next hour, he did not do so and lied to his superior. His superior discovered this lie and Mr Stevens received a warning. He thereafter completed the readings each hour as required.

12. Mr Stevens said that on his second trip to Vung Tau Harbour, his duties changed and he became the driver of a small boat which was carried by the HMAS Sydney. Mr Stevens drove this boat around the HMAS Sydney, for the purposes of patrols, and also so that scare charges could be dropped overboard by other sailors on the vessel. Mr Stevens said that there were 4 men on the boat, 40 or 50 scare charges, a rifle and a magazine of shells, as well as a radio and supplies. He stated that he performed "many" shifts while in the harbour. Shifts lasted for 4 hours, and he estimated the boat was in harbour for 3 or 4 days. Mr Stevens said he had heard rumours that on another such boat, a fused scare charge had been dropped back into the boat and exploded. This was a rumour, he did not know of it first-hand. Mr Stevens said that he was frightened that one of the sailors on his boat might have such an accident, and that all on board the patrol boat would be killed. He stated in cross-examination that he had no idea of what training the sailors handling these charges had, or how skilled they were. He said that the navy on occasion assigned skilled tasks to untrained personnel.

13. Mr Stevens said that on another trip, while approaching Vietnam but before entering Vung Tau Harbour, it was early morning and he was asleep when alarms went off signalling "action stations". He ran to his action station, which was manning a generator in the "bowels of the ship".. He had to keep this generator on-line until he was relieved. He said that his post was in a small, confined space, and was surrounded by fuel tanks. He was isolated, being the only occupant in the room he was in, with the only access being by one small hatch, which was closed. His only means of communication was by telephone. He had to remain in that position until he was relieved by someone. He said that he was worried as he did not know what was going on, and felt that he was "stuck in a hole" 6 decks down in the ship. He felt it would be very difficult to escape if anything happened to the ship. When he was relieved, the applicant went to the damage control section where he completed a 4 hour shift. Mr Stevens agreed in cross-examination that it was a "great relief" when the "action stations" status ended, but he could not recall how he found out that it was ended. At the time he heard the alarm he did not know why it was called. He said later that he heard it was a false alarm due to the sighting of an unidentified aircraft.

14. The applicant described another incident that frightened him. He said he was standing on the upper deck when some sailors saw a bloated pig floating down stream. The sailor suspected it might contain explosives or enemy divers, and be part of a plan to attack the HMAS Sydney. Mr Stevens said he had heard rumours of such attacks in the past. One of the sailors obtained permission from a supervising officer to shoot the pig, to see if it did conceal anything. On shooting the pig it was discovered that it was hiding nothing. Mr Stevens stated in cross-examination that he was about 20 to 30 feet from the pig at the time. He did not, however, cease watching or take shelter, despite the fact that many shots were fired over 30 to 40 seconds. He stated that it was human nature to watch such an event.

15. Mr Stevens described a further incident, which at a "rough guess" he said occurred on his fourth trip to Vung Tau Harbour. He said that he witnessed "our" planes bombing enemy positions on the main-land on the left of the ship. He said that he saw two planes fire 2 or 3 rockets, but he did not know at what targets. He did not know how many rockets were fired in total. He said that he feared retaliation from enemy forces by either rocket or mortar. He watched the bombing for no more than 5 minutes, then moved to the other side of the ship to better avoid any such retaliation. He stated in cross-examination that in moving to the other side of the ship, the ship offered him "heaps" of protection. He said that this move placed "quite a bit of steel" between him and the place where the bombing was occurring. He said that he estimated the place of the bombing to be 1800 metres from where the HMAS Sydney was moored. When it was put to him that the nearest land in the direction he indicated would have been 5.7 kilometres away, he said that it had not seemed so far to him, but that it was "hopeless" to accurately gauge distance over water.

16. Mr Stevens said that after the first trip he began to experience symptoms of anxiety and stress. These symptoms began after the incident in the shaft tunnel. They became worse after the third and fourth trips, and he started drinking more. He said that he was a little later in New Guinea, after his last trip to Vietnam, when another ship docked, and a sick sailor disembarked. Mr Stevens had to draw lots with other sailors he was with as to who would replace this sick man and return to Vietnam. Mr Stevens said that he experienced significant anxiety at this event.

17. Mr Stevens said that his anxiety continued to worsen. He became involved in many more arguments, and began to lose sleep. He said these symptoms became worse with each trip, and continued after he left the HMAS Sydney and was posted to New Guinea. He drank heavily to cope with these symptoms. He did not seek any medical help, as he was too scared of being ridiculed.

18. Mr Stevens said that he eventually saw Dr Ewer, a psychiatrist, in relation to the events described above. He agreed that this would have been in March 2000. He said that the second time that he saw Dr Ewer, he told him more about the events he has just described, saying that he had time to go away and think about them. He said he did not recall the dates of his appointments with Dr Ewer. Mr Stevens said that he continued to experience "a lot of worry" and sleep loss as a result of anxiety. He said that "events in the world" bring back his worries.

19. Mr Stevens described one further incident which occurred while he was on board the HMAS Sydney, on the way to Vung Tau Harbour. He could not recall whether it was his last trip or his second-to-last trip. He said that he was carrying a rucksack of boiler-bricks downstairs. He was descending the stairs facing forwards. Halfway down the staircase, he attempted to turn around to go down backwards. He slipped, and fell 10 or 15 feet. He said that that night, after he had slept for some 4 or 5 hours, he felt pain in his knees and went to the sick bay. He said that the attendant strapped his knees, gave him pain-killers and told the him that he could either stay in the sick bay or go back to his bunk. He chose to return to his bunk, as it was airconditioned and much cooler than the sick bay. He said that both his knees were swollen, but that later his left knee was not so bad, and his right knee gave him "the most trouble." Mr Stevens said that for four days after this accident he did not work. On the fourth day he went to see a medical officer, who gave the applicant a "serve" for not coming to see him earlier. He was given 7 days light duties in the scullery. After this period he saw the doctor and told him he was "getting round ok". He then returned "cautiously" to his duties.

20. Mr Stevens said he did not then see any doctor in relation to his knees until his general practitioner referred him to Dr Butcher.. Mr Stevens agreed that this was in 1999. He has had surgery on his right knee, but not, "as yet", on his left. Mr Stevens said he ceased employment in his last job because of the anti-inflammatory medication he was taking because of his knees. He said that he is still taking this medication.

DR M. EWER, PSYCHIATRIST

21. Dr M. Ewer first saw the applicant on 10 March 2000. He has prepared 3 reports about his condition (T7, T12, Exhibit A7). He diagnoses the applicant as suffering from Generalised Anxiety Disorder. He said that the applicant had described the above stressful events to him, and the stress each event had cased him. Dr Ewer was referred to each event, namely, the action stations incident, the bloated pig incident, the firing on the mainland incident, and the dropping of scare charges from the small boat incident. He referred to the Statement of Principles in force regarding Generalised Anxiety Disorder, and stated that he believed that each of these incidents would satisfy the requirement of the SoP for a significant psycho-social stressor. He was clear in his opinion that the "action stations" incident was as severe a stressor as the examples in the SoP. He said that the bombing incident was less severe, but still met the definition. Likewise, the incident on the patrol boat involved a fear of being killed, and satisfied the definition. The incident with the bloated pig "probably does" satisfy the definition, but is "right on the border". It probably "just sneaks in."

22. Dr Ewer said that the applicant told him that after the first incident involving "action stations", the applicant suffered from excessive worry, had trouble controlling this worry, suffered sleep disturbance, nightmares, was irritable, became tense, had an increased level of anxiety. He said these occurred while he was still travelling to and from Vietnam. On the history given to Dr Ewer by the applicant, these symptoms continued for more than 6 months, and thus represented the clinical onset of GAD.

23. In cross-examination, Dr Ewer stated that he had received two letters from the Department of Veterans' Affairs concerning this matter, but received most of his information from the applicant. He said that the applicant was not clear which events had occurred on which trips to Vietnam. Dr Ewer considered this reasonable given the amount of time that has elapsed since the events occurred. Dr Ewer said that the applicant had mentioned the incident involving dropping scare charges from the patrol boat for the first time during their third consultation. Dr Ewer stated that sometimes patients did go away and remember further events after their initial consultation with a psychiatrist. Dr Ewer said that the applicant had never mentioned to him the incident in the shaft tunnel.

COMMODORE P. M. MULCARE, HISTORIAN

24. Commodore P. M. Mulcare prepared a report for the Tribunal (Exhibit R2) as well as testifying by telephone. He said he spent 37 years in the navy, and visited Vietnam on several occasions, once in 1966 as a logistics officer and again in 1970 as a lieutenant. His report was prepared for a historical consultancy firm. The Commodore did not give any evidence of any qualifications in historical research.

25. Commodore Mulcare said, in relation to the "action stations" incident that the only evidence for it was an account in a book, The Vung Tau Ferry. This book was an anecdotal account, not a historical record. The Commodore did not believe the incident occurred. This is because there was no air-threat from Vietnamese forces during that conflict. Furthermore, there was no mention of "action stations" in the ship's report of proceedings. Action stations would not necessarily be recorded in the ship's log, but would have been recorded if a genuine threat were perceived, and would probably be in the report of proceedings as well.

26. In relation to the incident involving throwing scare charges from the small boat, Commodore Mulcare stated that there was no recorded incident of anyone being killed in such a situation. He could not recall any such incident. He stated that personnel dealing with scare charges were told, or "I hope were told" to operate safely due to the risk involved. Such an activity was inherently dangerous and all precautions were taken.

27. With respect to the bombing incident, Commodore Mulcare said that the only land within the range given by the applicant was the Vung Tau Peninsula, which was occupied by allied camps and an airstrip. He said there was, to his knowledge, no fighting there when the HMAS Sydney was in the harbour, and his investigations had provided no evidence of any fighting there. He stated that if allied planes fired on that region they would have been attacking their own people. In cross-examination he was referred to a photograph in The Vung Tau Ferry (p114, Exhibit A10), which ostensibly depicts US warplanes firing on that region. Commodore Mulcare responded that he believed that this photograph was wrongly described in the book, and that the purported attack was not in fact an attack. On the other hand, the witness said that Long Son Island was the land in the direction indicated by the applicant. He said there were no major military actions there while the HMAS Sydney was in Vung Tau Harbour, although there may have been minor actions. He stated that any such actions must have been 7 or 8 kilometres away from the ship. In such a situation, enemy forces would have posed "pretty much zero" risk to the HMAS Sydney. The only possible method of enemy attack was by long-range rockets, and this never occurred during the HMAS Sydney's voyages to Vietnam. The HMAS Sydney presented a small target in a "big sea". The witness said that there was no record that any enemy threat to the HMAS Sydney in Vung Tau Harbour. That the captain did not record in the ship's log the event described by the applicant was evidence that the captain did not perceive any threat.

28. Commodore Mulcare stated that there was certainly a naval doctor on board the HMAS Sydney, and there would probably have been two of them. He stated that it was difficult to imagine that the applicant would have been excused from duty for 4 days without seeing a ship's surgeon. The story about the applicant's accident on the staircase/ladder thus does "not have that ring about it".

29. Commodore Mulcare stated in his report (Exhibit R2/2) that there were concerns that enemy divers might hide under floating debris and sabotage ships. However, this was a very difficult task for them owing to the velocity of the tidal flow in the harbour. He stated in cross-examination that he learnt of this during his research, and that the difficulty in mounting such an attack was not something he knew when he was in Vietnam. He stated that sailors would have needed to procure both authorisation and ammunition from an officer before firing on any debris. He had heard accounts of sailors firing shots at debris in a manner such as that described by the applicant, but had never heard of any such event on the HMAS Sydney.

30. Commodore Mulcare stated that the noise generated by scare charges depended on several factors. He said if one were below the water-line, near the side of a ship, and the fuel tanks were not full to muffle the noise, scare charges could be "pretty loud". Some of them were "very loud". He said that notice of the use of scare charges was given in the daily orders. He stated that every attempt was made to get personnel to read the daily orders, and that they had a responsibility to read these orders. They were posted on noticeboards around the ship. However, he admitted that he could not say that the applicant actually did read these orders. Furthermore, personnel were warned over the ship's broadcast system. Commodore Mulcare stated that there were some areas, such as in the engine rooms, where warnings over the broadcast system might not have been heard due to ambient noise. He said that by the late 1960s, the navy tried to ensure that all personnel had heard scare charges before going to Vietnam.

DR C. BUTCHER, ORTHOPAEDIC SURGEON

31. Dr Butcher said he has examined the applicant on one occasion. He prepared a report which was before the Tribunal (Exhibit A6). In that report he mentioned that there was degenerative change in both of the applicant's knees. X-rays showed that the right knee showed signs of "an old ACL injury", being a tear of the anterior cruciate ligament, and there were indications that the left knee had suffered "a previous fracture of the proximal tibia". At another point in the report he wrote that the applicant "probably had a minimally displaced fracture of his left knee at some stage in the past." The surgeon said that Mr Stevens gave a history "vaguely in keeping with an internal derangement of his right knee." Dr Butcher had read an account of the accident wherein the applicant fell down stairs while carrying a heavy rucksack (T11). This account was substantially the same as the account the applicant gave orally to the Tribunal. Dr Butcher said that this written account was his sole source of information about the any accident involving the applicant's knees. Dr Butcher referred to the SoP regarding osteoarthrosis, and stated that this accident would satisfy factor 5(j) in that SoP for both knees, and probably in addition would satisfy factors 5(d), (e), (g) and (h) for the left knee.

32. In cross-examination, Dr Butcher was referred to the records of Mr Stevens' service. In particular the surgeon was referred to a medical report dated 6 January 1965, and ordered on 30 December 1964, while the applicant was on HMAS Gascoyne (T4/21). It was stated that two weeks prior to 30 December 1964 the applicant had hit his left leg, and the leg had been painful since. The report itself noted some "sub periosteal new bone formation...probably due to ossification in a subperiosteal haematoma".. Dr Butcher stated that this was quite consistent with the changes he had noticed in the x-ray of 1999, if changes were in the same place. Dr Butcher said a haematoma would result from a direct blow to the side of the knee, not twisting. He stated that it was possible that the applicant had sustained injury in 1964 and again in the accident where he fell down the stairs.

DISCUSSION AND FINDINGS

33. It was not disputed by the respondent that the applicant suffers from a Generalised Anxiety Disorder and Osteoarthrosis of both knees. The questions before the Tribunal, then, are whether these conditions are caused by the applicant's operational service, under the Veterans' Entitlements Act 1986. The manner in which the Tribunal is to approach these questions was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The course to be taken 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." (at 97-98.)

These steps must be applied for each of the conditions.

34. Generalised Anxiety Disorder

1) Taking into account all the evidence before it, principally the applicant's account of events and the testimony of Dr Ewer, the Tribunal is satisfied that the material "points to a hypothesis" that the GAD is war-caused. The hypothesis is raised in relation to each of the stressful events described by Mr Stevens.

2) There is a SoP in force in relation to Generalised Anxiety Disorder. The relevant SoP is Instrument No. 1 of 2000.

3) The hypotheses raised by the applicant are that each one of the five stressful events outlined in his evidence caused him great stress. The applicant contends that each one of these events constituted a "severe psycho-social stressor" under factor 5(a)(ii) of the SoP. He further contends that he suffered the onset of clinical symptoms within 2 years of the first of these incidents, also required by factor 5(a)(ii) of the SoP. The respondent raised several objections.

Mr Crowe questioned whether some of the events, such as that in the shaft tunnel, actually occurred. He further stated that the applicant was not sufficiently frightened, and stated that the fact that the applicant had continued to go about his duties after each event was evidence for this. These objections do no go to whether the hypothesis fits the template of the SoP. No question of fact finding arises at this stage, it is enough that the evidence "points to" the factors required by the SoP.

Mr Crowe further submitted that the stressors described by the applicant do not fit the definition of "severe psycho-social stressor". He said that that definition requires both a subjective and an objective element. He contended that the inclusion of examples in the definition requires that the stressor be objectively as stressful as the given examples. Further, he submitted that the event that is feared must have happened, so the SoP could not be satisfied, for example, by the fear that enemy divers were concealed in by the bloated pig, nor by the fear that enemies on the shore would retaliate to enemy bombing, unless in fact divers had been concealed or retaliation had occurred. The Tribunal rejects both these submissions. In the first place, the SoP refers to an event which "evokes feelings of substantial distress in an individual". It is inherently subjective. This proposition was endorsed by North J in O'Neil v Repatriation Commission (2001) 34 AAR 290. The only objective requirement is that the fear that was felt by the applicant was as severe as that which an average person might conceivably suffer in one of the given examples. Again, no fact-finding arises at this stage, and the material certainly points to a hypothesis that at least the shaft tunnel incident, the action stations incident, the patrol boat incident and the bombing incident caused this amount of fear in the applicant. As to the second objection of Mr Crowe, it need merely be pointed out that a concrete event did occur in each incident. Under the raised hypothesis, it was the bombing itself that raised the fear of retaliation in the applicant's mind, and it was the presence of the pig and sailor's firing at it that raised the fear of enemy activity. The arousing of such fear clearly constitutes a "severe psychosocial stressor" under the SoP.

Mr Crowe also stated that the applicant's account was that his GAD first manifested in symptoms on the way back on the first voyage. Hence only incidents on that voyage could fall under the SoP as causing GAD, as the events had to precede the condition. As he denied that any stressor occurred on this voyage, he stated that the SoP was not met. In answer, it should be pointed out that even if this argument were correct, Mr Stevens it would not defeat a claim for aggravation of GAD, as Mr Stevens said his symptoms got worse with each trip. And as pointed out above, the hypothesis involving the shaft tunnel fits the template of a "severe psycho-social stressor", as does the applicant's evidence relating to the onset of GAD after that incident, so the applicant's case is made out at this third step.

As a result of the foregoing, the hypothesis linking Mr Stevens' GAD to his operational service is reasonable under the Act.

4) The final step is whether any factor essential to the hypothesis has been disproved beyond reasonable doubt. The respondent principally relied on trying to show that there was no evidence supporting the applicant's that any of the events occurred. On balance, and taking the evidence as a whole into account, the Tribunal is not satisfied to this exacting standard that any of the events relied on by the applicant to establish the hypothesis linking his war-service to his GAD did not occur. Hence the applicant succeeds under the Act in establishing his GAD as war-caused.

35. Osteoarthrosis of the Knees

1) The evidence of the applicant and Dr Butcher clearly raises a hypothesis linking the applicant's osteoarthrosis of both knees to his operational war-service. The hypothesis is that the applicant fell down a flight of stairs, injuring his knees, and that this injury has now led to his present condition.

2) There is a SoP in force in relation to Osteoarthrosis, being Instrument No. 41 of 1998, as amended by Instrument No. 19 of 1999.

3) The relevant factor of the SoP is factor 5(j), which provides that a hypothesis connecting service to osteoarthrosis of a joint will be reasonable if in involves "suffering trauma to a joint before the clinical onset of osteoarthrosis in that joint". "Trauma to a joint" is defined thus:

"`Trauma to a joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and either altered mobility or range of movement of the joint. 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 that joint has occurred, where that medical intervention involves either:

(a) immobilisation of the joint or limb by splinting, sling or similar external agents;

...."

Even without this evidence of Dr Butcher, it is clear to the Tribunal that the hypothesis raised by the evidence fits the "template" of the Statement of Principles.

4) The remaining question is whether any essential element of the hypothesis has been disproved beyond reasonable doubt. The Tribunal finds that the history of the applicant's claim for osteoarthrosis is suspicious. On his original claim form, he did not mention the accident he described to the Tribunal. Rather, on his original claim form, he wrote that the events which caused his knee problems were "running up + down ladders + stairs carry excessive weights around on ship + forced sport activity" (T5/58). In a second form he filled out (T6/68) he was asked "Has there ever been any injury to this joint or joints?" He ticked the box marked "no". When asked why he had made these answers on these forms he stated only "I've no idea".. The Tribunal finds it very hard to accept that the applicant completely forgot about the accident he described, and later remembered it in the detail with which he described it to the Tribunal. Furthermore, there was evidence before the Tribunal that the applicant suffered another accident before his period of operational service, which Dr Butcher indicated could account for the trauma he inferred from x-rays. Finally, there were no records of the applicant sustaining any injury to his knees while on board the HMAS Sydney. Commodore Mulcare gave evidence that such a serious injury would probably have been documented. He also considered that the account given by the applicant was an unlikely one. The Commodore said that it was very unlikely that the applicant would have been given 4 days off his duties without seeing the ship's doctor.

Taking the evidence as a whole into account, the Tribunal is satisfied beyond reasonable doubt that the accident in question did not occur. Consequently, the applicant's claim for osteoarthrosis of the knees must fail.

DECISION

36. For the foregoing reasons, the decision under review, insofar as it relates to Generalised Anxiety Disorder, is set aside, and the matter remitted to the Respondent for reconsideration in accordance with the finding that the applicant's Generalised Anxiety Disorder is war-caused. The decision in relation to osteoarthrosis of both knees is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE

Signed: (signed)

John Howell, Associate

Dates of Hearing 18 & 19 November 2002, 2 December 2002

Date of Decision 11 February 2003

Counsel for the Applicant Mr T. White

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr G. Doube

Solicitor for the Respondent Department of Veterans' Affairs