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Monteith and Repatriation [2003] AATA 339 (11 April 2003)

Last Updated: 10 June 2003

DECISION AND REASONS FOR DECISION [2003] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1597

) N2001/153

VETERANS' APPEAL DIVISION	)
	Re	Thomas Robertson Monteith

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Ms S M Bullock, Senior Member

Dr M E C Thorpe, Member

Date 11 April 2003

Place Sydney

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal decides to:

(i) Set aside the decisions under review in relation to chronic airflow limitation, diabetes mellitus, post traumatic stress disorder with alcohol dependence and substitute its decision that the conditions of chronic airflow limitation and alcohol dependence are war-caused and Disability Pension for these conditions is payable with effect from and including 11 April 1997. The condition of diabetes mellitus is war-caused with effect from and including 21 September 1999. The condition of hypertension is war-caused with Disability Pension being payable from and including 17 June 1997.

(ii) The decision under review in relation to post traumatic stress disorder is affirmed.

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

Ms S M Bullock

Presiding Member

DECISION (CORRIGENDUM)

Before : Ms S M Bullock - Senior Member

Dr MEC Thorpe - Member

Date: 6 June 2003

Place: Sydney

The Tribunal made a decision in this matter dated 11 April 2003 pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 ("the Act").

It has come to the Tribunal's attention that the Tribunal omitted to make reference in the decision to assessment of Disability Pension.

The Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:

A. Page 1 and 2

Decision: "Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal decides to:

(ii) The assessment of all accepted war-caused disabilities is remitted to the Repatriation Commission.

(iii) The decision under review in relation to post traumatic stress disorder is affirmed."

B. Paragraph 196, page 85

"196. In conclusion, for all of the reasons set out above and considering all of the evidence, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 to:

(ii) The assessment of all accepted war-caused disabilities is remitted to the Repatriation Commission.

(iii) The decision under review in relation to post traumatic stress disorder is affirmed. "

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

Ms S M Bullock

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis - Diagnosis - Post Traumatic Stress Disorder -Diabetes Mellitus - Chronic Airflow Limitation - Psychoactive Substance Abuse - Alcohol Abuse or Dependence - Hypertension - Assessment

LEGISLATION

Veterans' Entitlements Act 1986 ss 5D, 9, 13, 119, 120, 120A

AUTHORITIES

Repatriation Commission v Gorton (2001) 110 FCR 321

Re Howe and Repatriation Commission (1999) 59 ALD 309

Re Hughes and Repatriation Commission [2000] AATA 571

Repatriation Commission v Binding [1999] FCA 974

Repatriation Commission v Law (1981) 147 CLR 635

Repatriation Commission v Law (1980) 31 ALR 140

Kattenberg v Repatriation Commission (2002) 34 AAR 562

Re Kelly and Repatriation Commission [2001] AATA 254

Re Chaplin and Repatriation Commission [2000] AATA 688

Re Hamilton and Repatriation Commission [2000] AATA 299

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

Benjamin v Repatriation Commission (2001) 34 AAR 270

Re Boardman and Repatriation Commission [2001] AATA 764

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Owens (1996) 70 ALJR 904

Repatriation Commission v Budworth (2001) 116 FCR 200

Bull v Repatriation Commission (2001) 66 ALD 271

Repatriation Commission v Bey (1997) 79 FCR 364

Hutton v Repatriation Commission (1998) 49 ALD 8

REASONS FOR DECISION

11 April 2003

Ms S M Bullock, Senior Member

Dr M E C Thorpe, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Thomas Robertson Monteith, of two decisions made by the Veterans' Review Board ("the Board") dated:

i) 19 August 1999 (T29, Bundle 1) which affirmed a decision of the Respondent, the Repatriation Commission ("the Commission") dated 22 April 1997 (T2, Bundle 1), refusing a claim for chronic airflow limitation, psoriasis and post traumatic stress disorder and varied the diagnosis of that condition to include alcohol dependence. The Board also affirmed a decision of the Repatriation Commission dated 3 February 1998 (T3, Bundle 1) which refused a claim for hypertension.

ii) 1 December 2000 (T23, Bundle 2), which affirmed a decision of the Commission dated 4 July 2000 that refused Mr Monteith's claims in respect of diabetes mellitus and L5/S1 spondylolisthesis (T2, Bundle 2).

2. It was confirmed by the Applicant at hearing that there was no application for review being made to the Tribunal for the conditions of psoriasis, internal derangement of the right knee, refractive error and L5/S1 spondylolisthesis.

3. A Hearing was held in Sydney on 11 February 2002, resuming on 12 and 15 February 2002, 22 and 23 July 2002 and 24 September 2002. Mr and Mrs Monteith provided oral evidence to the Tribunal as did Dr L V Brown, Consultant Psychiatrist, Commodore P M Mulcare, Writeway Research Service, Associate Professor R P Mattick, Clinical Psychologist from the National Drug and Alcohol Research Centre, University of New South Wales and Dr N J Schultz, Consultant Psychiatrist. Mr Monteith was initially represented by Ms J Buss, Solicitor, Legal Aid Commission of New South Wales and later by Mr N Dawson of Counsel. The Respondent was represented by Miss R Henderson of Counsel. Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": T1-T44, Bundle 1; T1-T29, Bundle 2"). The following exhibits were also tendered.

NUMBER	DESCRIPTION	DATE
A1	Statement of Mr T R Monteith	22 February 2001
A2	Report of Dr J R Carroll, Hon. Secretary, HMAS Sydney and Vietnam Logistic Support Veterans' Association	24 September 2000
A3	Handwritten letter from Commander F R Woods RAN (Rtd)	13 March 2001
A4	Extract from "The Vung Tau Ferry" by R Nott and N Payne, pp166-179	1998
A5	Report by Dr L Brown, Consultant Psychiatrist and Emotional and Behavioural Medical Impairment Worksheet	9 February 2000
A6	Report of Dr M Baz, Occupational Physician	7 August 2000
A7	Department of Defence Documents in relation to the Applicant	Various
A8	Medical Records from Dr S M Smith, Consultant Psychiatrist, St John of God Medical Centre	Various
A9	Clinical Notes of Dr P T Chia, General Practitioner	Various
A10	Clinical Notes of Dr A Samad, Consultant Psychiatrist	Various
A11	Supplementary Statement of Mr T R Monteith	2 May 2002
A12	Statement by Mrs Jennifer Dawn Monteith and attached document	30 April 2002
A13	Letter to Legal Aid Commission of NSW from Colonel A J Cotton, Director of Psychology, Defence Personnel, Department of Defence	29 May 2002
A14	Document headed "HMAS Sydney - Vung Tau Anchorage Notes on Ship Security" prepared by Captain D J Dalton RAN (Rtd) covering the period March 1968 to September 1970
R1	Report of Dr T Anderson, Consultant Physician	22 May 2000
R2	Report of Associate Professor R P Mattick, Clinical Psychologist	31 March 2000
R3	Report of Dr N J Schultz, Consultant Psychiatrist	14 April 2000
R4	Report of Dr N J Schultz, Consultant Psychiatrist	4 September 2000
R5	Report of Dr N J Schultz, Consultant Psychiatrist	10 October 2000
R6	Report of Mr J Tilbrook, CSM, RFD Writeway Research Service	28 June 2000
R7	Report of Commodore P M Mulcare, RAN (Rtd)	5 September 2000
R8	Report of Commodore P M Mulcare RAN (Rtd)	1 November 2000
R9	Claim for Rehabilitation and Compensation by Mr Monteith for Post Traumatic Stress Disorder	6 June 1998
R10	Supplementary Report of Commodore P M Mulcare RAN (Rtd) and Attachments	14 February 2002

ISSUES

4. The issues in this matter are:

i) What is the correct diagnosis of Mr Monteith's psychiatric condition and specifically is this post traumatic stress disorder or some other psychiatric condition and is the correctly diagnosed psychiatric condition war-caused?

ii) Whether or not the conditions of diabetes mellitus, chronic airflow limitation, psychoactive substance abuse in the form of alcohol abuse or dependence and hypertension are war-caused.

5. It was agreed by the parties at the Hearing that if Mr Monteith was successful in relation to any of the entitlement matters, then the correct assessment of the war-caused condition(s) should be remitted to the Respondent. Given that many of the opinions by medical or psychological experts were provided some time ago, the Tribunal agrees that if successful, the assessment of any war-caused conditions should be remitted to the Respondent to be assessed up-to-date.

LEGISLATION

6. A determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").

7. Section 5D of the Act deals with the definition of injury and disease. Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:

"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;

..."

8. Section 13 of the Act deals with eligibility for pensions.

9. Section 119 of the Act deals with decisions-makers not being bound by the technicalities and acknowledges that decision-making under the Act is of an Administrative rather than a judicial nature. Section 119 of the Act allows decision-makers to take into account matters such the effects of the passage of time, the absence or deficiency in records and the diminished memory of a Veteran.

10. The standard of proof to be used in relation to Mr Monteith's operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:

"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 section 120A.

...

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

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

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

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.

..."

11. In relation to the Tribunal's decision about the correct diagnosis of Mr Monteith's psychiatric condition, the standard of proof to be applied is contained within subsection 120(4) of the Act which provides:

"(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.

..."

12. Paragraph 120A of the Act deals with Statements of Principles and requires that the assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("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

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a 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

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(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

as the case may be."

STATEMENT OF PRINCIPLES

13. In making a determination in this matter the Tribunal must apply any relevant Statements of Principles which are in force. The Tribunal notes the Full Federal Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321 in which it was determined that the current Statement of Principles is applied and if the Applicant cannot succeed under the current Statement of Principles, then the Statement of Principles in force at the time of the original decision is to be utilised. The Tribunal considers that the following Statements of Principles are applicable:

* Instrument Number 82 of 1999 as amended by Instrument Numbers 9 and 91 of 2001 concerning Diabetes Mellitus

* Instrument Number 136 of 1996 concerning Chronic Airflow Limitation.

* Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 concerning Post Traumatic Stress Disorder.

* Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse

* Instrument Number 25 of 1999 concerning Hypertension

SERVICE HISTORY

14. Mr Monteith served in the Royal Australian Navy ("the Navy") from 9 July 1966 until 31 August 1973 (T3, Bundle 2, pp11,12). Mr Monteith had the following operational service in HMAS Sydney:

* From 20 September 1971 until 16 October 1971 in Vietnam

* From 26 October 1971 until 18 November 1971 in Vietnam

* From 24 November 1971 until 17 December 1971 in Vietnam

* From 14 February 1972 until 9 March 1972 in Vietnam

Mr Monteith also rendered eligible defence service in the Navy from 7 December 1972 until 31 August 1973.

EVIDENCE OF MR THOMAS ROBERTSON MONTEITH

15. Mr Monteith told the Tribunal that he was 16 years old when he joined the Navy. In the Navy, Mr Monteith was first posted to HMAS Leeuwin in Western Australia where he spent 12 months. He had not passed the Intermediate Certificate in New South Wales and while serving in HMAS Leeuwin, his education was upgraded to the equivalent of the Intermediate Certificate and he also undertook general seamanship training. From HMAS Leeuwin, Mr Monteith was posted to HMAS Sydney which was in dry dock where a refit was being undertaken. Mr Monteith estimated that he was with HMAS Sydney initially for approximately six months. He also undertook a mechanical trade course at HMAS Cerebus over a period of approximately three months. In about 1968, Mr Monteith was posted to HMAS Melbourne. Mr Monteith recalled Sky Hawk craft landing on the deck and remembered hearing ammunition exploding, either emanating from HMAS Melbourne or from other ships involved in naval exercises.

16. The sequence of his service was difficult for Mr Monteith to recall but appears to be in HMAS Creswell (Jervis Bay) from 15 July 1970 to 5 September 1970; in HMAS Cerberus from 6 September 1970 to 4 October 1970; in HMAS Creswell from 5 October 1970 to 15 August 1971; in HMAS Sydney from 16 August 1971 to 2 July 1972; in HMAS Supply from 3 July 1972 to 4 February 1973; in HMAS Penguin (Balmoral, Sydney) from 5 February 1973 to 15 July 1973; and, in HMAS Melbourne from 16 July 1973 to 31 August 1973 (Exhibit R7, Attachment 1). The posting to HMAS Supply involved trips to the Far East and in HMAS Melbourne, Mr Monteith undertook destinations to the Far East, Hawaii, Japan and New Zealand, he stated. Initially, Mr Monteith's duties at sea involved him working in the boiler room, cleaning and other general duties. He later graduated to watch keeping which involved looking after the machinery in and around the boiler room, but in confined compartments. Mr Monteith stated that he completed his Leading Hand Certificate while serving in HMAS Melbourne and he was a Leading Hand in HMAS Supply.

17. In HMAS Melbourne on one occasion at approximately 3:15 am in 1969, Mr Monteith was awakened by violent shudders. He stated that he raced up to the starboard side of the ship when he saw the back of another ship which was floating slightly in front of HMAS Melbourne but moving slowly backwards. Mr Monteith stated that he raced downstairs and obtained a camera, going back on deck to take a photo of the back of a ship which he later identified as USS Evans. Mr Monteith stated that people were running around and there were also sailors in the water. He was told to return to his duties on watch. Mr Monteith stated that he was shocked by that sight, particularly as he had some American drinking mates aboard the USS Evans and one of the sailors known to Mr Monteith was taken on board HMAS Melbourne and subsequently asked for Mr Monteith. Mr Monteith stated that he went about his normal routine for the rest of the day and was back on watch after the morning watch at about 4:00 pm. Mr Monteith stated that he did not know if his habits or behaviour changed after this. He believed that he started drinking and smoking slightly more after the HMAS Melbourne/USS Evans collision. This evidence was different to information recorded by Mr Monteith in a claim for compensation for post traumatic stress disorder in which he stated that he suffered post traumatic stress disorder because of the traumatic events of the USS Evans/HMAS Melbourne collision. Mr Monteith later stated that he was not a doctor and would not know if he was affected or not. He stated that he thought of the incident from time to time because it resulted in a tragic waste of life (Transcript, 11 February 2002, p14).

18. At some time in 1970, Mr Monteith was posted to the land based HMAS Creswell and while there he found out that he would be sailing to Vietnam in HMAS Sydney. Mr Monteith noted that he undertook four trips to Vietnam in HMAS Sydney, each trip lasting approximately one month.

19. Mr Monteith noted that on the trips to Vietnam, his watch-keeping duties while at sea required him to be in the boiler room working four hours on then eight hours off repeatedly while at sea. He served in the turbogenerator area which he described as a steam generator located in the forward engine compartment. The engine room itself was described by Mr Monteith as a large room which was located over four or five decks. He thought he was located on deck seven below the waterline, although noted it was difficult to tell. There were a lot of ladders and a number of different levels in the engine room space and there were not standard deck levels. Mr Monteith later estimated that in fact the engine room was eight decks high with each deck being approximately eight or ten feet high. The area was open containing two boilers, the main engines which were steam turbogenerators and a great deal of other steam equipment. Mr Monteith described this space as being very, very hot and generating a great deal of noise to the point where one could not hear people talk. Sailors had to be within a foot of another person's ear to communicate by yelling. Mr Monteith stated that it was impossible to hear any intercom systems in that engine room space.

20. Mr Monteith's duty in the boiler room space included him maintaining the turbogenerator, checking oil temperatures, pressures and controls, keeping these controls within certain predefined limits and to monitor and keep the turbines running. Mr Monteith stated that basically the system ran itself, but there had to be someone present to ensure that everything went according to the requirements. Mr Monteith stated that he had no ear protection at the time as to wear ear-muffs would cause them to fill up with perspiration due to the extreme heat in that workplace. In the boiler room, there were three personnel on the boiler face being the Petty Officer and two stokers, Mr Monteith on the turbogenerators and another person on the evaporator. There were two personnel working on the throttle and an officer on watch who was usually a lieutenant. The distance between Mr Monteith and the next person in that area was approximately 20 or 30 feet, he estimated. To reach the open deck, Mr Monteith had to go from the equivalent of deck seven up approximately three or four ladders. Outside the area where he worked, there was other auxiliary machinery, some stores and on the side there was an oil tank for balance in the bottom of which there were fresh water tanks. The hull consisted of an outer skin then an inner skin with the boiler room next, being the width of the ship less the tanks which were approximately eight to ten feet thick (Transcript, 11 February 2002, p17). Mr Monteith estimated that by the time he reached Vietnam the oil tanks would probably have been half-full.

21. At the time Mr Monteith was serving in HMAS Sydney, he believed that he would probably have read something called "Daily Orders." He could not however remember what was on these Daily Orders. Mr Monteith stated that when he went aboard HMAS Sydney there were only a few days before they were sailing to Vietnam. He was aware of such things as "Operation Awkward" but that made no effect on the operations of the boiler room, it was just another day. Mr Monteith's routine was that following his four hour shift he would come off watch, wash, have a meal, be that breakfast or late tea and, if it was a later shift, he would have some beer and sometimes play cards. Because of the work location, Mr Monteith stated that unless it was verbally stated to him and the others working in the engine room spaces, one did not know what was going on from one day to the next. He stated that half the time he did not even know whether it was day or night time with only the type of food served at meal times giving away the particular time of the day. Mr Monteith rarely went upstairs and had no idea where one would find Daily Orders. He stated that if he had been working on a day shift he may have known about them. Mr Monteith was firm in his opinion that people on watches in the boiler and engine room spaces did not know what was happening. He stated that he did not know where the notice board would have been located.

22. During the early part of his trips to Vietnam, Mr Monteith confirmed that he would have been an Acting Leading Hand and then towards the latter time of his operational service, he was confirmed as a Leading Hand. He became a Mechanical Engineer ("ME ") in about May 1969. On 25 January 1972, he was promoted to Acting Leading Mechanical Engineer and in March 1972 he was Acting Leading Mechanical Engineer 4, which meant a change of skill grade which Mr Monteith thought meant that he was skilled in propulsion. The final title change occurred on 1 January 1973, when he became Leading Seaman, Marine Technical Propulsion (Transcript, 11 February 2002, p51). Mr Monteith could not recall specifically these changes, but agreed that if it was recorded it probably was the case that he was not a Leading Mechanical Engineer or Leading Hand until his fourth voyage. It was at that stage that because of his status and in recognition of respect from the junior sailors, that he requested the junior sailors to obtain extra beer rations for him. It was not that the people who provided these extra rations were supervised by Mr Monteith, but more that they were doing him a favour. These men were all stokers in the same mess deck.

23. Mr Monteith noted that on his first trip to Vietnam he was on watch on the starboard side turbogenerator between 4:00 am and 8:00 am when he heard a loud bang outside the hull. He stated that he could tell that they were slowing down and were sailing into Vung Tau Harbour because of the different sound of the engines (Transcript, 11 February 2002, p18). Mr Monteith later stated that the engines were idle and he did not know if the ship was tied up or not (Transcript, 11 February 2002, p60). He did not remember if there were messages about entering or leaving Vung Tau Harbour. Mr Monteith noted the different characteristics of the machinery which told Mr Monteith that the ship was slowing down because the noise levels dropped and this was the case with idle engines.

24. Mr Monteith stated that after the loud bang, his instinct told him to get out of the engine room space as quickly as possible. He thought that the ship had been hit and he did not stop and find out, he just wanted to get out of that area. Mr Monteith described that he was in fear of his life and he was not going to stay in the big square hole of the boiler room and die. Mr Monteith was unaware whether any men had run out from the boiler room when the explosion had occurred. At that time he was on his own beside the generator but there may have been between two or four people at the boiler face with two or three seamen beside the engine including the officer of the watch.

25. Mr Monteith believed that if there had been a rupture of the hull, then the doors of the engine room space would have been shut and he and the other men would have been kept there. He ran up and out of the area, ending up on three deck on the starboard side. Mr Monteith described seeing the body of a person whom he assumed was Asian floating face down approximately 20 or 30 feet from the ship. He could not actually see the face and the body had some type of backpack attached, which Mr Monteith assumed were explosives. Mr Monteith recalled that the body was wearing "dirty greeny-browny colour.....overall things" (Transcript, 11 February 2002, p19). It was daylight by this time and Mr Monteith estimated that it was early morning. He believed it was towards the end of his trip that this incident occurred.

26. Mr Monteith did not know if anyone else had heard the explosion. Mr Monteith believed that the Petty Officer would have seen the body but he did not know if any one else saw it. He believed that there would have been others around because he thought the ship was entering Vung Tau Harbour but he did not really know. Mr Monteith did not talk to anyone about the incident when he went back on watch. There was no conversation later on in the mess between the men about the floating body. Mr Monteith in fact never mentioned much about anything until he started seeing psychiatrists some years later. Mr Monteith assumed that the person who had been deceased had been in the water probably in an attempt to blow up HMAS Sydney.

27. In his statement (Exhibit A1), Mr Monteith noted that he knew nothing of the use of percussion charges. He had never heard of them being used until the incident on his first trip to Vietnam on HMAS Sydney. He stated that there was no instruction from the Navy that he could recall. While he did recall that from time to time there may be messages over the intercom or visits by the Captain or Officers, he did not recall any specific message concerning a scare charge on the particular day in question. Furthermore, Mr Monteith stated that while he had not heard any announcement on the day in question, he had never heard messages broadcast about the use of scare charges on other days (Transcript, 11 February 2002, p61). The only messages he recalls were things such as the Captain saying "Hello" to the crew when he did the rounds in the morning. Mr Monteith would sometimes hear whistles over the intercom or announcements concerning refuelling parties. He could not say whether he recalled any messages concerning HMAS Sydney entering or leaving a port.

28. After the first trip in HMAS Sydney, Mr Monteith experienced no particular problems after that, apart from increasingly not wanting to go on these trips. He did not want to be down in the boiler room, hating the thought of it, but knowing that in his trade he did not have much choice. Mr Monteith also recalled that he started getting into trouble after that first trip, for example, for being late on watch. He made application for an elective discharge, he recalled, in 1972.

29. After serving in HMAS Sydney, Mr Monteith thought his next sea-going ship was HMAS Supply. In HMAS Supply, Mr Monteith noted that he had a cabin which he shared with two other junior sailors. This was a more relaxed vessel and he was able to leave the boiler room for most of the watch. Mr Monteith was not sure how many months he would have been at sea on HMAS Supply. It was following Mr Monteith's consultation with the Chaplin that he left HMAS Supply and did not have to go to sea again. Even though he did not have to spend the watch in the boiler room in HMAS Supply, he still did not want to go there. While HMAS Supply's boiler room was different to that of HMAS Sydney, Mr Monteith still did not want to go down there and have the possibility of being locked up. If anything had happened in HMAS Supply, he still felt that he could be confined in that space.

30. Mr Monteith did not recall seeing a psychiatrist, Dr Rowe, on 28 June 1973 (T3, Bundle 2, p20). From contemporaneous clinical notes during the first half of 1973, it was recorded that Mr Monteith had a fall down a flight of stairs, was reviewed by Mr R Tinning, a Consultant Orthopaedic Surgeon, who opined that the knee disability was not quite as severe as Mr Monteith made out. Following further review by Mr Tinning in March 1973, Mr Tinning noted "I feel sure there is some functional overlay with this man." (T3, Bundle 2, p20). Mr Monteith acknowledged in relation to his right knee that he did have difficulties with it in 1973 but not as badly as he had made out. In Mr Monteith's written statement of 2 May 2002, he noted that:

"Towards the end of my time in the Navy, I think I used it to help with my discharge. " (Exhibit A11).

31. In oral evidence to the Tribunal, Mr Monteith stated that he is not sure what he meant by that statement. He stated that it was possible that he did use his knee to get out of the Navy, but he was not sure. Mr Monteith was also unable to state whether or not he was a person who exaggerated to get what he wanted at that time. He just does not want to remember that period in his life and at best he vaguely remembers seeing the Navy Chaplin.

32. In relation to paragraph 9 of Mr Monteith's statement of 2 May 2002 (Exhibit A11), which indicated that he was interviewed by a social worker in or about August 1973 and the statement concerning that interview refers to Mrs Monteith's agitation and other problems, Mr Monteith stated that he and his wife were only 21 and 18 years old when they married and that his wife was dependent on him. He wrote that he did not remember whether there was any real problem but assumed that he must have used this as a means of avoiding returning to sea. In oral evidence, Mr Monteith stated that he really had no idea what he meant by the term "used" but it was possible that he could have used his wife's agitation as an excuse not to go to sea. All he knows is that he was using any means not to go back to the boiler room on any ship. In relation to the final possible posting to HMAS Melbourne, immediately prior to discharge, Mr Monteith noted in his written statement that that ship had recently been on sea trials and perhaps he used his wife's problems to avoid his own difficulties (Exhibit A11, para 11). Mr Monteith subsequently put in an application in not to go to sea but could not recall the reason he gave.

33. There are further notations on that record of Mr Monteith complaining about returning to his ship and of his mother telephoning the naval authorities about him. Mr Monteith stated he did not remember his mother ringing but presumed that she was concerned for him. Dr Rowe, Psychiatrist, in his report of 28 June 1973, noted that Mr Monteith had no psychiatric abnormality. At that time in 1973, Mr Monteith recalled that he just did not want to be in the Navy. He did not wish to go into the boiler room any more and was prepared, he stated, "to take any means to get out." Mr Monteith had in fact submitted an application to leave the Navy which, had it been accepted would have been effective in December 1973. One of the means to avoid going to sea was to miss a ship as was discussed in a "Report on a case referred for psychiatric examination" made on 22 June 1973 (T3, Bundle 2, pp30, 31). The report noted:

"Required fairly close supervision. Unreliable and disinclined to put much of himself into his work...Tended to keep to himself and seemed not to get on too much with others. Otherwise complaints about him were restricted to his job performance."

34. The report further detailed that Mr Monteith had left his ship at a time when he was to become involved in an inquiry into his administration of an auxiliary watch. Mr Monteith had reported sick ashore and had not been back since. It was noted as significant in the report, that Mr Monteith was understood already to have arranged his wedding for the month after the ship's departure. Mr Monteith stated that he did not know what this was about, noting that his marriage had been organised some 12 months earlier. He stated that he did not leave the ship because of the wedding, but because he did not want to on board a ship.

35. Mr Monteith agreed that Commander Holthouse's report that he had "skipped the ship" was correct. At that time, when he failed to report for boarding the ship, he took his fiance and went to see the Fleet Chaplin. He did this, he stated, to avoid being charged. The Chaplin organised for Mr Monteith to commence work at HMAS Kuttabul which is a land base in Potts Point, Garden Island. Mr Monteith stated that he worked there for a while and then he was sent to HMAS Melbourne which was about to sail. Mr Monteith put a request in to the Captain not to go and minutes before he sailed, Mr Monteith was ordered off the ship with a few other seamen as the Captain did not want him or the others on board. Mr Monteith stated that he was discharged about two months after that staying at HMAS Penguin until his discharge was finalised.

36. Prior to his discharge, Mr Monteith considered himself a good employee for a while but towards the end of his service he did not care as he did not want to be in the Navy. It was not that he did not get on with the people stating it was more that he did not associate with any sailors because he never stayed on board ship unless he had to. He was always the first off the ship and the last back on board. Prior to him having these difficulties, he would do extra duties and it never worried him. At the time of discharge, Mr Monteith stated that he had discipline problems with authority and this was just after he got married in March 1973. Also soon after he married, Mr Monteith recalled commencing destroying things such as kicking holes in kitchen cupboards and punching walls.

37. Considering his discharge documents (T3, Bundle 2, p16-17), Mr Monteith stated that these are far from correct and he was urged to complete them in a hurry in order for the Navy to get rid of him. He noted that there was a parade on at the time and he put that he had no disabilities arising out of service because he was told to "sign here, do this, say that, go" (Transcript, 11 February 2002, p26).

38. Mr Monteith told the Tribunal that he had no psychiatric problems recorded by doctors until about 1996 when he sought psychiatric help. His children had been telling him that he was nasty and needed help. His friends had also recommended to him that he obtain help as he did not want to see people, work with customers and just shouted at everyone around him.

39. Mr Monteith was asked about his Disability Pension claim forms, particularly the second claim for anxiety, hypertension and post traumatic stress disorder in which he had answered that he had first become aware of psychological problems in 1971. He noted that his service had caused the disability of anxiety and post traumatic stress disorder because of the trauma associated with the sinking of USS Evans and compounded by war-caused trauma in HMAS Sydney while serving in Vietnam. Mr Monteith explained that this did not mean that he knew in 1971 that he had psychiatric problems but at that time, he started smoking and did not want to be in the boiler room as he had to get out. When he looked back he realised that his psychiatric problems were starting earlier.

40. Mr Monteith was referred to Dr A Samad, Consultant Psychiatrist. A report from Dr Samad dated 19 September 1996 indicated that Mr Monteith was examined on 7 June 1996 (T6, Bundle 2, p104-107). At that time, Mr Monteith recalled that he was frequently curling up in a corner crying and did not want leave his house. Dr Samad tried a number of different medications and Mr Monteith continued to consult Dr Samad between 1997 and 2000. He noted that sometimes he had had heated words with Dr Samad. Part of the problem of consulting a psychiatrist, Mr Monteith noted, was that he was made to remember and he does not want to remember. He had gone for 30 years not talking about the problems to do with his naval service and then all of a sudden everyone wanted to know about it. This was also at the root of the problem with Dr Samad because he wanted to make him remember (Transcript, 11 February 2002, p76). Dr Samad had organised for Mr Monteith to be admitted into St John of God Hospital for a period of treatment which may have been for detoxification. Mr Monteith became tired of seeing doctors and was happy for his General Practitioner, Dr Chia, to organise his medication. Currently, Mr Monteith takes the medication "Cipramil", a 20 milligram tablet in the morning.

41. There have been a number of other consultations with psychiatrists including Dr S Smith who treated Mr Monteith at St John of God Hospital on up to four occasions as an inpatient or as an outpatient. In terms of other doctors who had examined Mr Monteith for the purpose of his application for review, he did not think that the histories recorded by those doctors or experts were accurate, as he believed that he had only seen many of them for a very short space of time. Thus, his consultations with Dr N Schultz, Consultant Psychiatrist, Dr L Brown, Consultant Psychiatrist and Associate Professor R Mattick, Clinical Psychologist, would not have recorded everything accurately because there was not enough time to record his history and symptoms, Mr Monteith stated.

42. Mr Monteith described his symptoms of finding it difficult to be in shopping centres because he wants to get out if it becomes too noisy or there are a lot of stairs. When Mr Monteith hears loud noises, he goes cold and freezes up not being able to do any thing for a short time. He reported feeling jumpy. At times of stress, he thinks about the first trip to Vietnam in HMAS Sydney, when he experienced the explosion and the floating body. It is also at times of stress that Mr Monteith becomes angry and frustrated and frequently damages the house. Mr Monteith stated that he does not know how many times he has had to repair the damage he has inflicted on his home. This behaviour commenced shortly after he was married in 1973 he believed.

43. In a statement made by Mr Monteith on 2 May 2002 (Exhibit A11), Mr Monteith noted that he has at best a very hazy memory of many events and at worst his memory is non-existent. In this regard, he noted for the past several years he has had trouble with names, dates and memories of what he has done or what he is supposed to do next.

44. In relation to Mr Monteith's smoking history, he stated that many of the Smoking and Alcohol Questionnaires were not completed accurately by him. Mr Monteith stated that he commenced smoking when he joined the Navy aged 16 years. He was in Western Australia at HMAS Leeuwin. At that time, he was earning $10.00 per fortnight and would buy "roll your own cigarettes." When Mr Monteith joined the fleet, cigarettes were duty free and he purchased tailor-made cigarettes costing approximately 10 cents per packet. Mr Monteith estimated that he would have smoked one packet of tailor-made cigarettes per day and thought that he smoked Marlboro 20s. He recalled that his smoking increased after the USS Evans incident in about 1969 to 1971. After being in Vietnam, Mr Monteith used to smoke a packet of Winfield 25s every four hour watch. He later stated that he possibly smoked more than one packet of cigarettes, but less than two. Mr Monteith noted that it was boring during his shift and he did not want to be there.

45. After the first voyage to Vietnam his smoking increased, Mr Monteith stated. After naval service, he smoked at least two packets per day, ceasing smoking cigarettes in about 1987 because he started to cough up blood. Mr Monteith lodged a Smoking Questionnaire which was signed and dated on 25 August 1997 (T15, Bundle 1, pp 72,73). This questionnaire contained different information to the one he had previously completed on 29 April 1996 (T5, Bundle 1, pp 50,51). The later Smoking Questionnaire included a reference to July 1967 when Mr Monteith was smoking 25 to 30 cigarettes per day because he had a habit and it was cheap and easy to get cigarettes. There was a further increase in July 1969 smoking 40 or more cigarettes per day following the collision with USS Evans and then a further increase in 1971 to 50 or more per day because of the stress of Vietnam. In the 1996 Smoking Questionnaire, Mr Monteith had recorded that in 1969 he had increased his smoking from 25 to 30 cigarettes per day because of nerves.

46. Mr Monteith could not recall who it was who assisted him to complete the 1996 Smoking Questionnaire and also had no recollection of the name of the person who helped him with the 1997 questionnaire. Mr Monteith stated that the 1997 Smoking Questionnaire was not completed by him as it did not use his wording. He noted that the figures were probably not correct and that he was only doing as he was advised in signing it. Mr Monteith stated it was more likely that he was smoking 20 cigarettes per day in 1967 and thereafter his consumption probably increased when he started smoking packets of Winfield 25, may be 25 or 30 cigarettes per day. The 50 or more cigarettes per day smoking habit recorded for 1971 was probably correct, Mr Monteith stated. He did not believe that he would have smoked 40 cigarettes per day after 1969.

47. Mr Monteith had recalled being interviewed by Associate Professor Mattick for approximately two hours, which he acknowledged was longer than the five minutes he had initially indicated had been the length of the interview. Mr Monteith did not recall telling Associate Professor Mattick that his smoking had decreased when serving in HMAS Supply. He did agree with the history recorded by Associate Professor Mattick in relation to his smoking decreasing after leaving the Navy because of the cost and that he would smoking approximately 30 cigarettes per day. In relation to the later recording in the 1997 Smoking Questionnaire of the impact of Vietnam service on his smoking, Mr Monteith stated that he did not remember whether he realised in September 1997 that he could only qualify for a Disability Pension for his various claimed conditions if they arose out of eligible service and as relevant his operational service in Vietnam.

48. From Dr Chia's clinical notes (Exhibit A9), it appears that Mr Monteith was treated by Dr Chia for bronchitis in November 1982, May 1992, May 1985, February 1986, February 1990, in December 1995 for wheezing and in June 1996 and August 1997, when treatment was undertaken for COAD [Chronic Obstructive Airways Disease]. Mr Monteith stated that the bronchitis never improved nor has his breathing and in fact that has been slowly worsening. The treatment consisted of puffers to try and make his breathing a little easier and he was prescribed antibiotics from time to time. Mr Monteith did not recall taking any sick leave from his civilian employment at the Water Board.

49. In relation to diabetes mellitus, this condition was diagnosed by Dr Day, but Mr Monteith had no idea when this diagnosis was made. He had noticed that he was going to the toilet a great deal over a number of years before he was diagnosed. The condition was initially controlled by diet but then he was required to take medication. He believed the condition was now coming under control.

50. Turning to Mr Monteith's alcohol consumption history, Mr Monteith stated that he drank a small amount of alcohol when he was at HMAS Leeuwin but he was only 16 at the time. He was under age and did not have very much money. It was not until he entered the fleet that he was able to increase his alcohol consumption, noting that no beer ration was issued before the age of 18. During those early days, he was consuming one can of 26 ounce beer per day. He maintained this level of consumption up until the beginning of 1970. Mr Monteith stated that his alcohol consumption increased towards the end of the service. He was able to obtain more that than his beer ration simply by asking a non-drinking junior sailor who was 18 to obtain another can of beer for Mr Monteith, being rewarded with 20 cents. The cans were opened at the time of issue to ensure that they were not being stored. Therefore, the beer had to be consumed on the night otherwise it would go flat. On the last few trips in HMAS Sydney, Mr Monteith stated that he could obtain three or four cans of beer after his watch and at about 8pm, sit down, play cards and have a few cigarettes before going to bed. This did not occur every night.

51. When Mr Monteith served in HMAS Supply after HMAS Sydney, he did not remember exactly the situation in relation to the alcohol consumption but believed that the availability of alcohol was harder than when he was serving either in HMAS Sydney or HMAS Melbourne. Certainly his history indicated that he was drinking beer at a reduced level when serving in HMAS Supply. Mr Monteith noted in this regard, that there were not as many young sailors who he could ask to provide him with their beer ration. He believed that the watch in HMAS Supply was four hours on and 12 hours off.

52. Post naval service, Mr Monteith noted that he would go to parties and would drink beer until he could not drink any more. He would often consume whisky as well. As far as he could remember, post service, he would consume beer everyday. He would drink certainly everyday on the weekend and during the week he would have a few beers, but it was party time on the weekend.

53. Mr Monteith stated that during the last five to six years, his drinking pattern had worsened and he now has to consume alcohol everyday. If he does not, he wanders around looking for alcohol. He has tried from time to time not to drink alcohol but his abstinence does not last. Mr Monteith noted that he has been in "detox" when in St John of God Hospital but has not attended Alcoholics Anonymous. Dr Samad was initially under the impression that Mr Monteith had given up drinking. Mr Monteith believed that on the last few consultations, Dr Samad became aware that Mr Monteith was drinking again. It was also apparent to Mr Monteith that his alcohol consumption had worsened because for financial reasons he had ceased buying alcohol and had to commence making his own cheaper beer. Mr Monteith further noted that he had nearly daily arguments with his wife about his alcohol consumption. This has been apparent for the last two or three years. Mr Monteith stated that he does not drink and drive as he knows he has to perform. He was especially careful not to drink when he knew he was going to drive a truck.

54. Dr Chia, General Practitioner, told Mr Monteith in about 1995 that he should cease alcohol consumption. Dr Chia had also advised Mr Monteith to cease driving his truck, not to cease driving a car. Driving a heavy vehicle was prohibited not because of the driving per se, but because of the associated loading and unloading of the truck and this was bad for his back condition.

55. Considering Mr Monteith's hypertension problem, he believed that that was diagnosed by Dr Day or possibly another doctor, but Mr Monteith was not sure when the diagnosis was made. He believed he was given medication at the time it was diagnosed as he had been on "Accupril " for a long time. He must take one tablet daily for the remainder of his life.

56. Mr Monteith acknowledged that he has been advised medically at various stages to try and control his diet and lose weight. He did not recall when this advice was first given. He also did not recall whether he had been sent to a dietician at some stage. He noted that he had been trying to lose weight for years, but did not specifically recall trying to lose weight to improve his situation when having airways problems. He did not also remember managing to lose eight kilograms when his lung function was being tested.

57. Mr Monteith told the Tribunal that he had no recollection of submitting a claim in 1998 for the Military Compensation Scheme for permanent impairment in relation to post traumatic stress disorder and claiming weekly compensation payments. Mr Monteith recognised a claim form (Exhibit R9) as being in his handwriting and his signature but had no memory of the details specifically. In that compensation claim form, it was noted that the reason he had post traumatic stress disorder was because of the incident involving the USS Evans. Mr Monteith did recall in April 1996 making his first claim for entitlement for a Disability Pension. That involved a claim for hearing loss and tinnitus, chest problems, skin rashes, anxiety and alcohol. Mr Monteith had recorded in that claim that his conditions had been caused through the traumatic events when HMAS Melbourne hit USS Evans. He noted that at that point he was relying on advice from an ex-army officer who was with him at the time. Mr Monteith acknowledged that the person filling out the form must have asked him a few questions during the process of completing the claim. He did not actually remember what he said to the person assisting him. Mr Monteith believed that the only material he had with him on the day was his Discharge Certificate, which had no reference to HMAS Melbourne or USS Evans. Mr Monteith felt certain that the person would have asked him about Vietnam, but could not specifically recall what he had said. He was not in a good frame of mind at that time of his life, as in April 1996 he was very confused and having many problems functioning (Transcript, 11 February 2002, p37).

58. In the context of discussing this April 1996 claim, Mr Monteith noted in relation to the USS Evans incident that he had provided earlier oral evidence that he did not feel that this incident effected him afterwards. He now stated that it must have affected him in some way because there was a great loss of life, including some of his good friends. He thought of those friends at that particular time he stated, but could not recall what he experienced or felt in the days afterwards. Mr Monteith noted that also in 1996 he was having trouble with his back and had been put off driving his truck at the end of 1995. He may have, he noted, consulted Dr Chia in 1996 for his back condition and Dr Seeton in May 1996 for backache and assistance in claiming workers' compensation from the Water Board. Mr Monteith also remembered being sent in 1996 to Dr Aouad about his breathing difficulties.

59. After naval service, Mr Monteith worked at the then Water Board in Sydney. During that time, Mr Monteith obtained a Drainer's Certificate from St George Technical College in Sydney. The course was a one year course. It was a practical and theoretical course, two hours on one or two nights a week and he probably did this in 1975 or 1976. He believed that every third or fourth weekend he may have had to attend for a practical session. During the period of employment at the Water Board, Mr Monteith noted that he was able to be promoted and in fact attending this course assisted him in this regard. He achieved several promotions in the Water Board. Mr Monteith's job as Inspector finished because the numbers at the Water Board were dramatically reduced and consequently, there were no longer any career prospects for him. Mr Monteith ceased employment at the Water Board in 1987.

60. After the Water Board, Mr Monteith purchased a utility vehicle in about 1989 and in 1990 he purchased a six tonne truck. He went to work driving for the first time. Initially, he worked for a courier company and then set up his own successful business driving the utility and later, trucks. He further noted that he never had any problems with his drivers or other employees. He was liked by his customers, he stated, noting that he had received a number of letters attesting to his being a very good operator with a very sound company. Mr Monteith did not have to have any additional driving tests in order to drive these larger vehicles because he had his heavy vehicle license when he was in the Navy. The business had three trucks for a short time but mainly operated with two vehicles most of the time. It was toward the end of 1996, that Mr Monteith had medical advice to cease driving because of his back. He then commenced undertaking clerical and office work. This involved to a small degree keeping records but Mrs Monteith operated the accounts. Mr Monteith's main role at that time was taking in the work and then allocating it to his drivers of which there were two or three. He would talk to customers discussing their requirements and most of the time, this involved verbal dealings. If there were any problems, he would call the customer or the drivers on the phone. The drivers would come into the office of an afternoon and give their daily job to Mr Monteith who would then give it to his wife who organised the accounts. Mr Monteith always checked the job sheet and made sure of the minor costings.

61. Mr Monteith stated that after 1996 he had difficulties in that he did not want to talk to customers and when he took accepted jobs, he would often forget the details. The drivers were then not obtaining work and the business started to lose work. In relation to the proposition that Mr Monteith simply did not like doing the paperwork and not being able to drive made him want to get out of the business, Mr Monteith stated that paperwork was just something that he had to do and he did not have any problem with it. It was more that in early 1996 things fell apart and he just thought, in hindsight, now knowing what depression is like, that he was depressed. Before that, he had loved running the business. Mr Monteith was unable to recall the actual date of the cessation of his business but he ceased driving a truck in 1995 or 1996.

62. Mr Monteith discussed his recreational activities recalling that in about 1980 he became involved with an indoor cricket team. He ceased this activity, he believed, in about 1992. Mr Monteith had also been a cricket coach for the then Police Boys Club at Campbelltown. He undertook this activity for about one year while his son was a member of the team and quite enjoyed this activity. Furthermore, Mr Monteith purchased a four wheel drive vehicle in about 1991 or 1992 and joined a local four wheel drive club. He became the Environmental Officer of the club which required him taking responsibility for members not damaging locations which they attended and basically keeping people in line and from driving their vehicles recklessly. The club consisted of family people and regular trips were undertaken by club members. Mr Monteith had a good time when a member of the club and was active for approximately four or five years. He stated that one of the reasons for the sale of his four wheel drive vehicle was his back condition. In addition, he did not want to be around the people any more and shut them out.

63. Mr Monteith was involved with the Masonic Lodge. He believed that he joined the Lodge in 1996 or 1997. Dr Schultz had noted in his report of April 2000 that Mr Monteith had been in the Masonic Lodge for about five years and enjoyed it very much. Dr Schultz further reported that Mr Monteith was attending eight meetings per month but currently he attends 12 meetings per year, one each month. For a while, Mr Monteith was attending four meetings in a week, attending Lodges in different locations in Sydney. Mr Monteith stated that at that time he was a "bit haywire" (Transcript, 11 February 2002, p45). Mr Monteith would travel small distances to the various locations. He stated he did not know what he was doing at that time he was just going anywhere or everywhere (Transcript, 11 February 2001, p46). When attending Lodge meetings, he consumes alcohol with his fellow Lodge members. After Lodge meetings, there is a meal to which women are invited. Mr Monteith became Worshipful Master of one Lodge for one year during the 2000-2001 year. This meant that he was the leader of the Lodge, like a President. The Worshipful Master's duties involved him presiding at ceremonies. He had to work his way up to this position, through four different stages. Mr Monteith stated that he had a very easy year when he was Worshipful Masterful. He performed his duties with a great deal of help. Mr Monteith stated that he enjoyed the comradeship of fellow Lodge members. He is a past member of the Catholic Club and had been attending this institution while his wife was participating in line dancing. While his wife was dancing, he would be consuming alcohol at the Catholic Club, drinking with other members. Mr Monteith does not attend the Catholic Club any longer.

EVIDENCE OF MRS JENNIFER DAWN MONTEITH

64. Mrs Monteith provided a written statement dated 30 April 2002 (Exhibit A12). Mrs Monteith acknowledged that during her husband's service she and Mr Monteith did see the Navy Chaplin, but she did not recall the conversation, nor when this interview occurred. Mrs Monteith further stated that she did not remember being interviewed by a social worker only recalling the interview with the Chaplin. As at August 1973, when these events were reported as having taken place, she and her husband had been married since March 1973. Mrs Monteith stated that she knew that her husband had elected to be discharged but could not recall whether or not she was keen for him to leave the Navy. Mrs Monteith stated that she did not remember her wedding but was keen to marry her husband as they had been going out for approximately two years prior to marrying.

65. Mrs Monteith stated that she did recall farewells to Mr Monteith at the wharf in Sydney when he was departing on service. It was the initial farewells at Garden Island that were upsetting to her. Mrs Monteith did not agree with the Social Worker's report of her, except for notation about her sadness at the wharf saying "Good Bye" to her husband. In her written statement, she noted that she recalled Mr Monteith being away for three months at the end of 1972 serving in HMAS Supply. Mrs Monteith also recalled in March 1973 prior to their wedding, Military Police came to the flat where her mother lived and where her husband had been staying. They did not find Mr Monteith there. Mrs Monteith also recalled that her husband bandaged his leg which he did in a manner to cause it to swell up (Exhibit A12, para 5).

66. After Mr and Mrs Monteith were married, Mrs Monteith recalled that her husband was away for about a week during which time she stayed with her parents. She would often go and stay with her mother during the first six months of their marriage when Mr Monteith was away. In terms of there being a reference by the Naval Social Worker to Mr Monteith being upset by Mrs Monteith's emotions, Mrs Monteith believed that this was quite incorrect as Mr Monteith had always seemed to ignore her feelings. When Mr Monteith was away she had a great deal of family support. Contrary to there being statements that Mr Monteith got out of the Navy in order to marry, Mrs Monteith's view is that he married to get out of the Navy. Mrs Monteith stated that she did not recall if she ever told her husband not to go away during his service with the Navy.

67. Mrs Monteith noted that at some time prior to Mr Monteith's application for a free discharge, he had mentioned to her both the incident related to USS Evans and his service in Vietnam, particularly related to the use of depth charges. Mr Monteith was however "no great talker", Mrs Monteith noted. She recalled that he was desperate to get out of the Navy but did not recall when she first knew that. Mrs Monteith strongly believed that Mr Monteith's insistence that they marry and his going to the Chaplin with her after they were married, was a way of him leaving the Navy more quickly.

EVIDENCE OF COMMODORE P M MULCARE, WRITEWAY RESEARCH SERVICE

68. Commodore Mulcare provided three reports dated 5 September 2000, 1 November 2000 and 14 February 2002 (Exhibit R7, R8, R10).

69. Commodore Mulcare noted that at the time Mr Monteith claims to have heard the scare charge and seen the floating body, he was serving in the machinery spaces either forward of or after the main machinery spaces of HMAS Sydney. These spaces are huge and more or less the width of the ship, being approximately three decks high. Commodore Mulcare noted that this space is noisy and steamy and that entry is via an air lock. This was because with HMAS Sydney's open fronted boilers, the whole machinery space had to be kept under pressure in order to feed the boilers. Commodore Mulcare noted that Mr Monteith would not have been very free, being located in the machinery space, to leave the area because he would have had a number of supervisors in the area who would have chided him had he decided to leave.

70. From an attachment to Commodore Mulcare's report, Captain D Dalton RAN (Rtd), a Marine Engineering Officer serving in HMAS Sydney in 1968/69, noted that scare charges would sound :

"...similar to a rawhide whip crack through the ship's hull which I would estimate at about 110db, above the noise level that could do permanent damage to hearing senses. It could be quite frightening if there was no warning, particularly if one was concentrating on listening for sound changes in running machinery."

Captain Dalton also wrote:

"Dropping the charges from the motor cutters caused only muffled explosions which, although quite significant when heard in the machinery spaces, was an acceptable noise in the circumstances." (Exhibit R8, p2)

71. In relation to scare charges being used by HMAS Sydney during the 1971 and 1972 voyages, Commodore Mulcare stated that the charges were dropped up stream of the ship. The practice of dropping scare charges directly off HMAS Sydney had changed in about 1971. The charges were not dropped as a matter of routine from the actual ship itself, although Commodore Mulcare opined that scare charges could have been dropped from the ship had that been considered necessary. Commodore Mulcare noted a Statement by Lieutenant Commander K J Fitzgerald RAN (Rtd) who had served aboard HMAS Sydney during 1970/1971 as the ship's Diving Officer. He noted that scare charges would generally be dropped between 50 to 100 metres ahead of the ship upstream of the tidal stream (Exhibit R8, Attachment 1). At the same time there were boats tracking back and forth across that tidal stream and around the ship towing razor wire obstructions to snag any body or any thing that was floating. Lieutenant Commander Fitzgerald observations were more accurate than those of Captain Dalton's, Commodore Mulcare opined, because Lieutenant Commander Fitzgerald had contemporaneous service with Mr Monteith and was in the water dealing with the issue of scare charges.

72. Commodore N F Helyer MBE, RAN (Rtd) who served in HMAS Sydney contemporaneously with Mr Monteith, was a watchkeeping Engineer Officer in training at that time. He noted that his recollection was that the sound of detonated scare charges was noticeable above the other machinery noises in the machinery compartments, but this noise was attenuated by both the water column and the fuel, ballast or fresh water tanks, located outboard of all machinery spaces. Commodore Helyer noted that he always remembered the distinct sound of scare charges exploding under water but in his case, those memories had no deleterious effects. (Exhibit R8, Attachment 2).

73. In preparing his reports, Commodore Mulcare was aware of a report by Mr J Tilbrook, of Writeway Research Service (Exhibit R6). While Commodore Mulcare had read this document, he had not relied upon it, believing he had more knowledge about the particular matters relating to Mr Monteith. Commodore Mulcare acknowledged it was important in this matter for the Tribunal to understand the conditions in the machinery space and even though Captain Dalton and Mr Monteith had not had contemporaneous service, the condition in the machinery space would not have changed significantly when Mr Monteith undertook his service. Commodore Mulcare noted that while this was the case it may also have been that operational matters may have changed by the time Mr Monteith served in HMAS Sydney. Commodore Mulcare stated that he did not deliberately leave out information about the heat of between 130 and 140 degrees under the ventilation fans in the machinery spaces. He stated that he did not think such information was relevant.

74. Commodore Mulcare noted that Captain Dalton's statement referred to him not insisting that sailors wear earmuffs in the machinery space because of the heat and perspiration, although, Commodore Helyer required earmuffs to be worn. Commodore Mulcare noted that he had not often been at the machinery spaces in a ship but agreed that in the tropics, it was very hot. He could not recall whether on such occasions he had observed people wearing earmuffs. Commodore Mulcare stated that generally people in the machine spaces do wear earmuffs whether in the tropics or not, to protect their ears from sound damage. He acknowledged the steamy atmosphere of HMAS Sydney's engine room with high temperatures and that there would be a high level of perspiration. It was possible, Commodore Mulcare noted, that given that Mr Monteith was not wearing earmuffs because of perspiration and that if an announcement had been made concerning scare charges, that he may not have heard this. Even so, Commodore Mulcare opined that Mr Mulcare should have been aware from briefings before the ship got to Vietnam of what was going to happen. Commodore Helyer wrote that Mr Monteith was an experienced stoker whose duties in the outside machinery spaces meant that he invariably worked alone, except for rounds. Accordingly, Commodore Helyer acknowledged that Mr Monteith was one of the few members of the crew who may have escaped the information contained in briefings, Daily Orders and the like (Exhibit R8, Attachment 2).

75. Discussing the training which Mr Monteith may have had going to Vietnam, Commodore Mulcare noted that he had spoken with officers in charge of the Fleet Training Group who were there in the late 1960s and early 1970s and certainly when ships first went to Vung Tau in 1965, many sailors had not heard of a scare charges before they arrived in Vietnam. It was possible that Mr Monteith may well have arrived in Vietnam without hearing the sound of a scare charge. Commodore Mulcare noted however that Lieutenant Commander Fitzgerald had commented that by the stage Mr Monteith was serving in HMAS Sydney, scare charges were being let off well away from the ship.

76. Commodore Mulcare stated that even in Vung Tau Harbour, HMAS Sydney kept steam up in case of the need to quickly exit the harbour and thus the noise in the machinery spaces would continue. Furthermore, Commodore Mulcare opined that Mr Monteith had been in the Navy long enough and that it was his job to read Daily Orders and to make sure that he kept himself appraised of particular events. Daily Orders and temporary memorandum would be displayed in mess decks, notice boards in the main cafeteria and passage ways. Commodore Mulcare noted that efforts were made to communicate with everyone including such methods as running Tombola competitions and printing the Tombola numbers on Daily Orders in an effort to try encourage people to read those orders. There were also broadcasts over the main broadcasting system and Commodore Mulcare opined that there would be times when Mr Monteith was not in the engine room when he should have heard those announcements. It was also inconceivable to Commodore Mulcare, Commodore Helyer and Lieutenant Commander Fitzgerald that Mr Monteith would have arrived at Vung Tau not knowing what was going to happen there. Having so opined, Commodore Mulcare stated that it is notoriously difficult to get information to the stokers. He noted that it was a standard naval joke that if information could be got through to the stokers then you were a remarkable individual (Transcript, 12 February 2002, p16).

77. Copies of Daily Orders were not available because they were temporary and not retained. Commodore Mulcare noted that it was not possible that there were no Daily Orders about scare charges basing this opinion on information he had obtained from including from Captain Dalton, Commodore Helyer and Lieutenant Commander Fitzgerald in addition to his own knowledge of such matters. No person Commodore Mulcare spoke to about this specific period could recall a general briefing about scare charges, but Commodore Helyer noted in his statement of 1 November 2002 that preparations for an operational visit to Vung Tau commenced some days before arriving and invariably consisted of a Commander's Temporary Memoranda and Daily Orders about the nature and operation of any extraordinary matters (Exhibit R8, Attachment 2). There would be several briefings over the ship's main broadcast system via the Operations Officer. During these briefings, the use of weapons was discussed and there would always be clear explanations if such use was intended. The chance that a member of a ship's company was not aware of the intended use of scare charges was therefore very unlikely (Transcript, 23 July 2002, p31).

78. Specifically in relation to Operation Awkward, Commodore Mulcare stated that this is an umbrella term given to a series of measures taken when a ship was under threat of attack from enemy divers or similar threat. The measures ranged from managing how many steering motors and generators were available, isolating areas to prevent cross action damage through to having watertight access to compartments, manning guns and putting sentries on duty. Thus, Operation Awkward effected every department of the ship, Commodore Mulcare stated. In Mr Monteith's case as a stoker in the engine room, Commodore Mulcare believed that Mr Monteith's duties would not have changed to a great extent and it would not really have effected him, although it might have made some things inconvenient if he was off watch and then placed in a damage control party elsewhere in the ship.

79. In terms of the evidence provided by Commodore Helyer and Captain Dalton, Commodore Mulcare noted that Captain Dalton was describing what happened at a particular time and Commodore Helyer was dealing with a different time. Commodore Helyer was watchkeeping in the machinery spaces whereas Captain Dalton was the Senior Commander when he was Engineer of Sydney and had been working in the machinery spaces for many years.

80. In the event that there was an explosion outside the ship's hull resulting in a hole in the side, Commodore Mulcare stated that it would be unlikely to have resulted from a scare charge. While Commodore Mulcare noted that he is not an engineer, he did not think that there would be penetration through the inner hull to the engine room from a scare charge exploding along side HMAS Sydney. He was aware of scare charges causing minor leaks in oil tanks of carriers in the past. If there was a quite large hole, then the boilers would have to be closed down as would the auxiliary machinery. The machines would have to be vented through safety valves and then that would be a major problem. The area would have to be sealed in any event, because the double doors were locked to keep the air pressure appropriate. If an explosion had been as result of a mine, then that would be ascertained very promptly and sailors would be shutting down machinery very quickly and evacuating the engine space. Exits would be via the ladders and through the air locked doors and sailors would be leaving under direction. Commodore Mulcare could not envisage the situation as described by Mr Monteith where he would be locked in the engine room space and left. It would have to be a very significant catastrophic event to blow a huge whole in the ship's side or resulting in a boiler blowing up.

81. Commodore Mulcare noted that HMAS Sydney did have problems in the machinery spaces of heat and noise. She was a steel-hulled ship with storage spaces between the double hull. At the time HMAS Sydney was in Vung Tau, her fuel tanks outside the machinery spaces would have been reduced or empty by the time she had reached Vung Tau. The sound of a scare charge varies with factors such as the distance it was dropped from the ship, the depth of the water and the type of seabed. The sound would be like a dull thud, depending on the distance the scare charge was dropped from the ship.

82. In relation to Mr Monteith's sighting a floating body, Lieutenant Commander Fitzgerald noted that he was present when a body in unspecified military uniform came to the surface (Exhibit R8, Attachment 1). There was no reference by either Lieutenant Commander Fitzgerald or Commodore Helyer (Exhibit R7, Attachment 3) as to whether the body was floating face up or face down. Commodore Mulcare believed that both reports were reliable and about the same incident. He opined that it was highly likely that Mr Monteith did see a floating body (Exhibit R8, p3). Commodore Helyer's report of the body being blown up was however, probably hearsay and may not have been accurate Commodore Mulcare opined. Commodore Mulcare placed more reliance on Lieutenant Commander Fitzgerald's report given that he was the Ship's Diving Officer. It is not significant, Commodore Mulcare stated, that the incident was not recorded in the ship's Reports of Proceedings.

83. Mr Monteith was discharged at his own request, "DAOR" (Discharge at Own Request). Commodore Mulcare noted that this type of discharge occurred if there were personal or welfare problems and noted an historical record of 3 April 1973 which recorded that Mr Monteith was "Fit for shore duty or for sea duty in a ship carrying a full medical branch sailor of POMED rank or LSMED ACC" (Exhibit R7, Attachment 2). This category is a specialist qualification assigned to someone with a need for emergency treatment. Commodore Mulcare further noted that the service documents indicated problems with Mr Monteith's right knee and a concern that this condition was not as severe as Mr Monteith had made out, with the possibility of functional overlay (T3, Bundle 2, p20). Commodore Mulcare also noted the reference to a psychiatrist and calls to the Navy from Mr Monteith's mother in addition to his leaving his ship and reporting ill ashore when about to have into his administration of an auxiliary watch, all occurring in early 1973. These various records indicated to Commodore Mulcare that Mr Monteith was having welfare problems at that time. In the context of a discharge of Mr Monteith's own request and noting Commander Holthouse's negative report that Mr Monteith required fairly close supervision, was unreliable and not inclined to put too much of himself into his work (T3, Bundle 2, p30), Commodore Mulcare concluded that if Mr Monteith had remained on board ship, he would have been the subject of an inquiry because of his failure to undertake his job properly.

84. Considering the "Application for Discharge to Shore" attached to Commodore Mulcare's Report of 14 February 2002 (Exhibit R10), Commodore Mulcare noted that he used to approve this type of document during his service in the Navy in 1989/1990. The documents have not substantially changed since the 1970s, Commodore Mulcare commented. In relation to a report by a social worker, this would have arisen out of an interview conducted between the social worker and Mr Monteith. It was also noted in a report of August 1973 that both Mr and Mrs Monteith were interviewed in relation to Mr Monteith's free discharge and it was recorded:

"In view of problems already evinced during recent separation and wifes demonstrated inability and unwillingness to cope alone nsw considers free discharge desirable but not essential." (Exhibit R10, Attachment 2)

EVIDENCE OF DR L V BROWN, CONSULTANT PSYCHIATRIST

85. Dr Brown prepared a report dated 9 February 2000 (Exhibit A5). In her report, Dr Brown opined that based on her interview with Mr Monteith and his wife and from the documentation, Mr Monteith is suffering from post traumatic stress disorder, chronic sub-type. Mr Monteith had described to Dr Brown symptoms of the disorder including vivid day time recollections of two service incidents, nightmares replaying the events of seeing the collision of the USS Evans and hearing the noise of a percussion grenade as a separate incident. In terms of the cause or agent for post traumatic stress disorder, Dr Brown reported there are two separate incidents, that is the collision of the USS Evans in 1969 with the stressor being the sight of the survivors clinging to a severed ship and subsequently hearing of the loss of life of six American comrades. Dr Brown noted that Mr Monteith denied the onset of post traumatic stress disorder type symptoms until after a second incident in 1971, during Mr Monteith's Vietnam service. In Dr Brown's opinion, it is reasonable hypothesis that Mr Monteith's experience during Vietnam service of hearing a loud noise which he perceived to be possibly indicative of a collision, with his fear of being entrapped below deck, may well qualify for a perceived threat to life which would be sufficient to trigger or aggravate a pre-existing post traumatic stress disorder. The experience of seeing a human body float past HMAS Sydney did not seem to Dr Brown to have been particularly significant to Mr Monteith.

86. Dr Brown further opined in her report that Mr Monteith's history of alcohol abuse satisfies the definition of alcohol abuse as defined in the relevant Statement of Principles in that he has a history of excessive and maladaptive alcohol consumption despite persistent and recurrent social and interpersonal problems with his wife, family and in particular aggressive outbursts. There is also a history, Dr Brown wrote, suggestive of a concurrent diagnosis of alcohol dependence in that Mr Monteith continues to use alcohol despite knowledge of persistent psychological problems arising out of alcohol use and also he has had unsuccessful attempts to cut down and control alcohol use. Dr Brown further opined that it is difficult to specifically relate Mr Monteith's alcohol abuse and dependence as being causally related to either his Vietnam or defence service. Dr Brown opined that the excessive use of alcohol would appear to have developed during the latter years of his working life and escalated with the development of anxiety and depressive symptoms since the mid 1990s. Dr Brown concluded that Mr Monteith self-medicates the anxiety symptoms of his post traumatic stress disorder by excessive use of alcohol and therefore considered it secondary and a co-morbid diagnosis to post traumatic stress disorder.

87. At hearing, Dr Brown noted that the history of Mr Monteith having disciplinary problems during the latter stage of his naval service could indicate that he was having psychological problems at that time. Dr Brown noted that young men particularly, tend not to be psychologically minded and will often turn to the use of alcohol or present with somatic or physical complaints. This would certainly tie in with the naval doctors' comments that there appeared to be some functional overlay in relation to his right knee problem. The difficulty in all of this is the complication of Mr Monteith's poor recall and vagueness as a historian. It is also complicated because many years have passed since the events under question. If Mr Monteith's history is accurate and he escalated his drinking behaviour as a way of dealing with anxiety, one of the difficulties thereafter is that this could mask underlying symptoms of, for example, a phobic anxiety disorder or a post traumatic stress disorder. Dr Brown was uncertain as to why Mr Monteith decompensated in 1996. The time in 1996 when things started to go bad for Mr Monteith coincided, Dr Brown stated, with a period where his general practitioner told him that he would not be able to drive heavy vehicles any longer. At that time he changed from being the active visible face of his business to being someone behind the scenes helping his wife, Dr Brown opined. It is also possible that around that time, Mr Monteith's drinking behaviour was a problem as Dr Samad was suggesting that he decrease his drinking behaviour. It was several years then before he was detoxified and it is possible that an independent event was related to alcohol use rather than being related to any underlying psychiatric condition. Dr Brown confirmed her view that Mr Monteith has an alcohol abuse disorder and associated alcohol dependence but whether or not that related to operational service was uncertain in her mind.

88. Dr Brown opined that the USS Evans incident may have primed or sensitised Mr Monteith for hearing the loud noise of the scare charge in the second incident in Vietnam. It is possible that there are two sub threshold stressors, which might have been sufficient to induce a post traumatic stress disorder. Dr Brown noted that Mr Monteith describes his current nightmares and flashbacks, he described avoidance of going below deck and his dislike of being enclosed. He also describes hypervigilance, an exaggerated startle response and avoidance of thinking about or talking about his experiences in Vung Tau. Dr Brown's opinion is that Mr Monteith, probably, but not definitely, developed a mild chronic post traumatic stress disorder or a phobic anxiety disorder with specific fear of going below deck. Having so opined, Dr Brown noted that often people's symptoms do not fit into one or other of the psychiatric diagnostic categories really well. Dr Brown further concluded that it is probable that Mr Monteith has a psychiatric disease apart from his alcohol problem. In relation to the specific symptoms suggesting an underlying post traumatic stress disorder, Dr Brown noted that it was difficult trying to obtain information about symptoms and as Mr Monteith did not volunteer discussion of symptoms of his own accord, Dr Brown had to specifically ask about the symptoms.

89. Dr Brown further commented in relation to Mr Monteith's poor recall that his memory difficulties may in fact be related to his alcohol use. Dr Brown undertook a basic cognitive test and he performed less well on that than would be expected for a male of his age. In addition, many people in Dr Brown's experience with post traumatic stress disorder complain of memory dysfunction of various types. It is more common in the acute phase of the post traumatic stress disorder for the individual to complain that he or she cannot concentrate very well or cannot remember things within recent days or weeks. Discussing Mr Monteith's medication of Cipramil which he currently takes, it is possible that this medication is containing Mr Monteith's anxiety symptoms. This drug is common for its use in depression. But it is also commonly used in anxiety disorders, such as post traumatic stress disorder.

90. The fact that in oral evidence to the Tribunal, Mr Monteith had not made any reference to flash backs, dreams or a startle response, Dr Brown commented that it is possible that he did not report any such symptoms because they are not occurring or alternatively that with Mr Monteith's current and ongoing use of alcohol his symptoms might be dulled or marked by alcohol induced sedation. It is possible that symptoms have decreased over the years as may happen in chronic post traumatic stress disorder. If Mr Monteith was found not to have experienced the two stressful events, then Dr Brown stated that her diagnosis would be alcohol abuse and dependence.

91. When Dr Brown first considered Mr Monteith's circumstances, she did not consider that the two stressors he experienced alone would meet the criteria as a stressor for a diagnosis of post traumatic stress disorder. However, when informed of Mr Monteith's oral evidence at hearing, that he felt threatened for his life and that he was a "goner", being fearful that he was going to be entrapped as a result of the consequences of a hole being ripped in HMAS Sydney's hull, then that might qualify as a stressor. In so opining, Dr Brown noted that the stressor has to be assessed in an objective way, but also there needs to be consideration of the subjective level of the stressor in terms of how Mr Monteith experienced this incident. It was not unusual, as occurred with Mr Monteith after the scare charge incident, to not talk either to the Petty Officer or to discuss his experience with other men.

92. In terms of Mr Monteith's credibility, while Dr Brown had noted the reports of Dr Schultz and Associate Professor Mattick, when she examined Mr Monteith she did not consider that he was over-exaggerating his symptoms or giving too much information. She believed that Mr Monteith genuinely does not remember at times and she therefore had no major concerns.

EVIDENCE OF MR J TILBROOK, WRITEWAY RESEARCH SERVICE

93. Mr Tilbrook provided a report dated 28 June 2000 (Exhibit R6). Mr Tilbrook confirmed from the Navy History Directorate that due to the possible threat posed by enemy underwater miners, individual ship's divers, the Royal Australian Clearance Diving Team or the United States Clearance Divers were employed whenever allied ships would anchor in Vietnam waters as a protective measure against possible underwater attack. The standard defensive measures adopted by the Navy with its ships operating in Vietnam were referred to as Operation Awkward which comprised varying states of readiness graded from State 1, the highest degree to State 3. When a ship would anchor in Vietnam, Operation Awkward State 2 measures were adopted which included armed sentries posted as lookouts around the ship for any sign of suspicious activity or signs of air bubbles. During the hours of darkness, the water around the ship's hull was well illuminated and armed sentries remained posted as lookouts. Further measures when a ship was at anchor involved keeping the ship's engines running with the propellers operating at half ahead slow which caused a wash under the hull to prevent enemy swimmer mine attacks on the vulnerable stern area of the ship. Active sonar was operating emitting a loud "ping" under the water aimed at disorientating any person under the water. During periods of slack water which was 30 minutes either side of low or high tide when the normal strong flowing currents were at their ebb, it was standard practice under Readiness State 2 for percussion grenades or scare charges to be thrown over the side of the warship at intervals of about every 15 minutes to act as a deterrent to any underwater approach to enemy swimmers. The use of scare charges was complimented by constant navy boat patrols circling around the approaches to the ship and also dragging hook chain nets. Percussion grenades or scare charges could also be thrown into the water by such boat patrols when it was warranted.

94. Mr Tilbrook noted that according to previous Captains of ships in Vietnam whom he had interviewed, it would have been standard practice for all of the ship's company aboard the vessel to be informed over the ship's public address system by general announcements piped from the bridge just prior to the tidal changes that standard enemy swimmer defensive skills were to be carried out. This enabled the ship's company to be forewarned that scare charges were likely to be used during the approaching period of slack water. Mr Tilbrook noted that scare charges were usually dropped on command from the bridge and were particularly useful at night or in heavy weather conditions by day when the visual detection was not possible. Although there may have been advice over the ship's public address system of scare charges, Mr Tilbrook acknowledged that some sailors on duty, watch or resting may have been occasionally startled by explosions. It was not possible however for sailors below deck to anticipate the precise moment of the explosion of a thrown percussion grenade. It would be expected that prior to entering Vietnam waters, a Veteran would have experienced or witnessed a demonstration of the practice of dropping scare charges over the side of the ship which, when detonated, would be heard below decks as a "loud dull thud" against the hull of the ship.

95. If a scare charge was thrown from a boat, the instruction was that it must be six metres from the hull and the average water depth of the firing of scare charges five to six metres. The detonation of a scare charge containing less than one pound of TNT would not have damaged the steel plated hull, Mr Tilbrook stated. Mr Tilbrook noted that the Navy History Directorate advised that sailors were posted at all times on duty watch below deck in the heart of the ship and would have been at duty stations when scare charges were thrown. It is possible that those working in noisy spaces may not have clearly heard the piped announcements concerning the imminent dropping of percussion or scare charges.

96. Mr Tilbrook noted that considering the Report of Proceedings for HMAS Sydney for relevant periods, there was no mention of a reported sighting of any enemy bodies in the water or other significant incidents. Mr Tilbrook opined, following his research into this matter, that even though a veteran on duty below deck may not have heard the announcement of the imminent dropping of a scare charge, it was his belief that all members of the ship's company of HMAS Sydney would have been aware that Operation Awkward measures were to be implemented in Vung Tau from mediums such as Daily Orders and notices. Furthermore, Mr Tilbrook opined that members of the ship's crew would certainly have been practiced and would have been aware of the defensive measures entailed by Operation Awkward such as keel and bottom searches by divers and the dropping of scare charges. Prior to the arrival of HMAS Sydney in Vietnam waters, certain sailors on the ship would have been posted on rosters and warned for duty watch as upper deck sentries and boat patrols.

EVIDENCE OF DR J R CARROLL, HONORARY SECRETARY, HMAS SYDNEY AND VIETNAM LOGISTICS SUPPORT VETERANS' ASSOCIATION

97. Dr Carroll provided a report dated 24 September 2000 (Exhibit A2). Dr Carroll noted a statement by Commander F R Woods, who was the former Commanding Officer of HMAS Parramatta when that ship acted as an escort to HMAS Sydney in 1968, a period before Mr Monteith's service. During that particular trip, Commander Woods recalled hearing that a body or bodies had been seen in the water. This incident was not reported in either the ship's log or the Commanding Officer's report of proceedings. Dr Carroll noted further similar examples to be found in the US Naval Force Vietnam Monthly Historical Summary for January 1970. Various reports obtained by Dr Carroll and reference to research materials confirmed the practice of Operation Awkward and the dropping of percussion charges at random.

EVIDENCE OF CAPTAIN D J DALTON, RAN (RTD)

98. Captain Dalton provided a collection of notes from his Vietnam experiences while serving as the Engineering Officer of HMAS Sydney during the period March 1968 until September 1970 (Exhibit A14). Captain Dalton noted that HMAS Sydney was "slab-sided" in the mid-section of the hull between the "forward watertight bulkhead of the Forward Machinery Space and the after WT bulkhead of the After Machinery Space". He noted that any under water explosion at about three or four metres would have a full soundwave effect on the ship's hull plating in the immediate vicinity. It was most likely that the fuel tanks outboard of each main machinery space, being relatively high in the ship compared with other tanks, would be emptied first and were probably empty when HMAS Sydney reached Vung Tau to disembark soldiers and discharge army equipment. While in Vung Tau Harbour at anchor and at instant readiness to get under way, noise levels in the boiler area would be the same as steaming at economical speed in the range of 90 decibels. This level of sound would be primarily due to boiler air supply fans, supported by adjacent steam, turbine driven fuel and boiler feed pumps. Temperatures in these machinery spaces in the tropics were high particularly at anchor and turning the main engine while at instant readiness to proceed to sea. Temperatures would be in the range of 135 to 140 degrees Fahrenheit, under the ventilation fans, but higher elsewhere in the machinery space.

99. Captain Dalton further noted that the use of earmuffs or earplugs to protect the ears in the machinery spaces was not encouraged by management because of high perspiration and the possibility of serious ear infections and tropical ulcers, which could have a permanent effect on the person.

100. In relation to scare charges, Captain Dalton noted that they were always dropped during his time on board HMAS Sydney when she was at anchor at Vung Tau. There were two methods used, namely, scare charges being dropped from motor cutters patrolling the waters near the ship about 70 to 80 metres out. The charges were dropped by the crew in a random pattern. The other method was for lookout sentries patrolling the port and starboard sides of the ship to throw charges into water clear of the ship. The objective was to have a controlled random pattern of charges going off close to the ship. Instructions may have included a specific distance for charges to be thrown, but Captain Dalton was not aware of this. Captain Dalton remembered on a number of occasions making representations to his superiors having received delegations from staff on watch in the machinery stations that it appeared that the charges were not being thrown over the side as was directed.

101. Captain Dalton noted that there were two machinery space noises that are similar to a scare charge exploding. These being that of a boiler water level gauge glass blowing out and the other of a boiler tube bursting. The former is a random occurrence, Captain Dalton noted, which can be quickly rectified. The roar of steam after the bursting of the boiler tube has prolonged rectification measures. Captain Dalton noted that no engine room watchkeeper wants to hear either noise and can thus be quite frightened when hearing a scare charge explode for the first time. Neither of the engine room incidents mentioned by Captain Dalton had been experienced by him when he was on board. The dropping of charges by the motor cutters caused only muffled explosion, although quite significant, when heard in the machinery spaces and this was an acceptable noise in the circumstances. Scare charges dropped over the side by sentries sounded similar to a raw hide whip crack through the ship's hull which Captain Dalton estimated would be at about 110 decibels above the noise level and that could do permanent damage to hearing senses. Captain Dalton opined that it could be quite frightening if there was no warning, particularly if one was concentrating on listening to sound changes in running machinery which the Leading Hand or Petty Officer in charge of the boilers would be doing whilst on watch.

102. Captain Dalton noted that there would be some new ship's company each trip and that ship's Daily Orders gave information in the notes section on what the routine would include on arrival at Vung Tau, such notes issued warnings on the use of scare charges to deter Viet Kong under water swimmers who are known to operate when conditions were suitable. Captain Dalton noted that calls were made over the ship's broadcast when a threat was upgraded and that the scare charges would be thrown from a ship at random intervals. Despite this, Captain Dalton opined that it is highly unlikely that the messmates of new watchkeepers would not alert the newcomer to the possibility, it was not the type of information that would be withheld as a joke. Even so, it was quite often difficult to hear messages over the ships broadcast in the machinery spaces over the background of machinery noises. It was improbable that a newly joined engineering branch sailor in HMAS Sydney would have been completely unaware of the fact that scare charges would have been used in Vung Tau before he heard the first explosion. Captain Dalton noted that a recently joined engineering mechanic would have been involved in the ship's general routine for almost 14 days since leaving Australia, would have talked to messmates, gained information and, hopefully understood the routine whilst the ship anchored in Vung Tau. The ship's company had a strong sense of duty and a positive "can do" attitude during such voyages to do the best for those on board, Captain Dalton noted.

EVIDENCE OF ASSOCIATE PROFESSOR R P MATTICK, CLINICAL PSYCHOLOGIST

103. Associate Professor Mattick provided a report dated 31 March 2000 (Exhibit R2). In summary of his report, Associate Professor Mattick noted that Mr Monteith is a man who has altered his account of events directly after learning that his original account would not lead to compensation. Associate Professor Mattick opined that he did not believe that Mr Monteith's current reports can be considered to be accurate and believes it most likely that Mr Monteith has no psychological disturbance because of his naval service. In any event, Associate Professor Mattick doubted that any minor psychological disturbance that Mr Monteith may currently have would stop him from working. Associate Professor Mattick considered the main reason Mr Monteith ceased working was not caused by service but rather due to his reported back injury and possibly his knee injury. Neither of those conditions appeared to Associate Professor Mattick to be related to Mr Monteith's service.

104. At hearing, in relation to Mr Monteith's alcohol abuse and dependency, Associate Professor Mattick opined that Mr Monteith had been drinking heavily for many years and the date of onset of this heavy alcohol consumption was before 1997 as had been noted by Dr Samad in his clinical notes (Exhibit A10). Associate Professor Mattick considers that Mr Monteith has a mild alcohol dependency which in the diagnostic criteria requires physical signs of alcohol dependency which are usually withdrawal symptoms, shaking, sweating and possible other severe problems such as hallucinations and delirium tremors. Dependence is seen frequently in young males between the late teenage years to the thirties and tends to improve over time. As men accrue life's burden such as mortgages and children, Associate Professor Mattick opined that then they tend to have less time to drink heavily and cut back their alcohol consumption. It was difficult to draw anything out of Mr Monteith because he was unclear about the time of the onset of his symptoms and Associate Professor Mattick stated that he could not form a clear opinion. Mr Monteith was clear about the pattern of drinking, that he drank from early service life and then changed his drinking after various events such as the collision of the USS Evans and HMAS Melbourne and then after his experience in Vung Tau Harbour when serving in HMAS Sydney. Associate Professor Mattick noted that when Mr Monteith was serving in HMAS Supply, he reduced his level of alcohol consumption.

105. From his notes, Associate Professor Mattick did not record any sense of Mr Monteith being an absolutely poor historian, except as he set out in his report when Mr Monteith could not recall particular aspects of the onset of problems such as dependence symptoms. Mr Monteith seemed reasonably comfortable about the amounts he was drinking, Associate Professor Mattick noted. The interview with Mr Monteith occurred over a number of hours, although Associate Professor Mattick did not have a precise record of this.

106. In terms of the stressor which might have lead to alcohol dependence, Associate Professor Mattick opined that it is reasonable to conclude that the collision of the USS Evans and HMAS Melbourne could have, with Mr Monteith's particular personality, primed him, with the scare charge incident leading to alcohol dependence. Associate Professor Mattick noted however, that if that were the case, then he would have considered there would have been some lingering ongoing propensity for something nasty to happen. He would have had a reaction initially to the USS Evans incident and if he were primed, then it would be expected that there would have been apparent some reasonable reaction which then gradually dissipated. Associate Professor Mattick noted that in his interview with Mr Monteith, he had not elicited from him any particular reaction in terms of USS Evans incident at the time. Without some kind of reaction initially, Associate Professor Mattick had difficulty accepting that this would be a major cause of later problems. The fact that there was no reaction argues against the notion of being primed but that is speculative. Increased smoking and drinking after the USS Evans incident could imply a reaction if that had occurred, although Associate Professor Mattick noted that there was different information about levels of tobacco and alcohol consumption (Transcript, 12 February 2002, p29). It could also be that it was the normal maturation of his drinking pattern across time, that is, as Mr Monteith became more experienced, he drank more heavily and more regularly.

107. The symptoms described by Mr Monteith of not wanting to go back into the machinery space after his experiences with scare charges in Vietnam, are more indicative of a phobic reaction than post traumatic stress disorder which affects all aspects of a person's life, Associate Professor Mattick opined. Against this being a phobic reaction is that such symptoms do not plague him day to day.

108. In terms of Mr Monteith not talking to any of his colleagues or the officer on deck when he saw the floating body, that was not unusual, Associate Professor Mattick stated. Many young males in the Navy being 16, 17 or 18 years of age would experience some criticism from colleagues if fear was shown, so this was quite plausible in terms of Mr Monteith's non-discussion of what he had seen.

109. Associate Professor Mattick reiterated his opinion in the report that the alteration of history across time by Mr Monteith and the correlation of that with an awareness of the requirements for compensation caused him concern. Associate Professor Mattick stated simply that he did not trust the accuracy of Mr Monteith's report. To be fair however, Associate Professor Mattick stated that it could be that the initial claim for Disability Pension was inaccurate and the second one was accurate, but this was beyond Associate Professor Mattick's ability to determine.

110. Associate Professor Mattick concluded that Mr Monteith has a number of life's events including physical pain and other problems, which would contribute to dysphoria and perhaps anxiety about money and finances. But there are other factors that would need to be considered as causing him to be unhappy. Associate Professor Mattick opined that the more likely scenario with Mr Monteith is that there was a nasty event which occurred in Vung Tau which would have been frightening and that Mr Monteith has gradually become disabled in a number of ways including becoming dysphoric. He has been labelled by a number of doctors as having post traumatic stress disorder. Perhaps Mr Monteith believes that he has post traumatic stress disorder because he has been told by experts that that is what he has. On the other hand, Associate Professor Mattick's view is that there have been a number of life circumstances including alcohol dependence impacting on Mr Monteith. Attributing an inability to work to a scare in Vung Tau Harbour when Mr Monteith has worked well for many years is an issue causing Associate Professor Mattick some difficulty. Furthermore, Associate Professor Mattick has difficulty with Mr Monteith's presentation, even allowing for medication. In this regard, Associate Professor Mattick thought that Mr Monteith would show some sense of distress. The diagnosis of phobic reaction and alcohol dependence could be an alternative diagnosis only if it was presumed that the phobic reaction was an ongoing disorder which disabled Mr Monteith day to day and caused him to seek relief from that by drinking. Certainly the consistent evidence is that ever since being in HMAS Sydney for that first occasion, Mr Monteith has not wanted to be in the boiler room. Associate Professor Mattick opined however that this reaction should cease after he ceased service because he would not be going aboard ships. One would also need to establish that alcohol dependence was present or caused by that initial sequence and Mr Monteith was not clear with Associate Professor Mattick about the onset of symptoms of alcohol dependency.

EVIDENCE OF DR N J SCHULTZ, CONSULTANT PSYCHIATRIST

111. Dr Schultz provided a number of reports dated 14 April 2000, 4 September 2000 and 10 October 2000 (Exhibit R3, R4, R5). In his first report, Dr Schultz opined that if the Tribunal considered Mr Monteith's assertion to be true that he was unaware of the scare charges, then a diagnosis of post traumatic stress disorder could be made. If the Tribunal concluded however, that the assertion was untrue, then a diagnosis of post traumatic stress disorder is not able to be supported (Exhibit R3). In addition, Dr Schultz diagnosed that Mr Monteith has a substance abuse disorder in the form of alcohol abuse and the problem developed soon after his Vietnam service accompanied by a marked deterioration in his behaviour leading to police charges and penalties. The causes of alcohol abuse includes exposure to the previous events while serving in HMAS Sydney, the feeling of being emotionally "stressed" in the Navy, Mr Monteith's personality style and anxiety symptoms. Dr Schultz opined that Mr Monteith could work at least eight hours per week and the complaints Mr Monteith had of lack of concentration and memory difficulties could be situational and related to loss of interest in his business rather than a genuine inability. Symptoms of dreams and recall of events in his waking thoughts could be symptoms of post traumatic stress disorder.

112. Following Dr Schultz's consideration of a number of historical reports and further expert opinion from Dr Brown, Associate Professor Mattick and the clinical notes of General Practitioner, Dr Chia, Dr Schultz opined that if those reports were accepted then the diagnosis of post traumatic stress disorder could not be substantiated. If there is no diagnosis of post traumatic stress disorder, the symptoms which Mr Monteith reports could be explained by the possibility of alcohol abuse causing or exacerbating depression, anxiety, including panic attacks, temper problems which also include blackouts after a temper attack. Furthermore, personality dysfunction may add to Mr Monteith's problems and increase the likelihood of alcohol abuse. The dishonest history if that were found, could be used to explain specific symptoms including dreams. Dr Schultz opined that Dr Monteith's involvement with the Masonic Lodge is not inconsistent with the diagnosis of post traumatic stress disorder, tending to reduce the severity of the symptoms and reduces the evidence that he is unable to cope with anxiety. In some respect, Dr Schultz opined, the level of Mr Monteith's involvement has replaced his occupational life and indicates that he is capable of working.

113. Dr Schultz opined that there is no evidence to suggest that the USS Evans collision with HMAS Melbourne was a major stressor leading to post traumatic stress disorder. Mr Monteith described to Dr Schultz feeling appropriately saddened at the loss of his drinking mates, but did not describe the presence of horror or helplessness that would have been able to satisfy a diagnosis of post traumatic stress disorder. Dr Schultz noted that Dr Brown's report indicated some differences in the history presented by Mr Monteith in respect of the content of his dreams.

114. Dr Schultz noted that Dr Brown concluded Mr Monteith has a post traumatic stress disorder occurring after a scare charge detonation in Vietnam, which reminded him of the threat of the ship sinking, like the USS Evans which he had previously experienced. While Dr Brown's explanation of this is feasible, Dr Schultz noted that it was dependent on the history provided by Mr Monteith. The difficulty for Dr Schultz was that Mr Monteith did not report certain experiences to him in the same way and the inconsistency of the history suggested that at least some of Mr Monteith's history is false, and from the historical reports, that Mr Monteith's assertions cannot be validated.

115. If Mr Monteith's history was not accepted and the diagnosis of post traumatic stress disorder was invalidated, then alcohol abuse could certainly cause difficulties with depression, anxiety, panic attacks, Mr Monteith's temper problems and blackouts. It could also cause memory problems. The difficulty is that if there is no diagnosis of post traumatic stress disorder, there are still symptoms such as recurrent dreams of the stressful event which are not likely to occur outside of post traumatic stress disorder. In that case, if somebody is thought not to have post traumatic stress disorder then the dreams cannot be explained, hence leading to come concerns about the truthfulness about the evidence. If the evidence was found to be absolutely truthful but that the stressor did not meet the diagnostic criteria, then Dr Schultz would say as a clinician, that Mr Monteith had post traumatic stress disorder. Whether that was acceptable legally was another matter. One of the difficulties Dr Schultz emphasised in relation to the evidence generally but specifically the USS Evans situation, was that it was dealt with differently depending on whose opinion one considered. Mr Monteith spoke to Dr Schultz in terms of the USS Evans incident not seeming very important to him, but in other reports from other experts it seemed to be very important. It was not unreasonable that one could conclude that the USS Evans incident perhaps primed Mr Monteith for some other event and if he then in the later event believed that he was going to die, then that could satisfy criterion A of the diagnostic criteria in DSM-1V. Dr Schultz noted that we know what the history was and we also know that Mr Monteith was not going to die when the explosion happened but he did not know that at the time, so in his mind he had the experience of terror. Dr Schultz stated that the only possible diagnosis is alcohol abuse.

116. At hearing, Dr Schultz was asked to consider whether or not Mr Monteith may have a phobic disorder. Dr Schultz noted for this diagnosis to be made out, there has to be the presence of clear anxiety symptoms or panic disorder symptoms occurring at the time. Someone who is genuinely phobic would develop an increasing severity of anxiety within a fairly short period of time ranging from half an hour and you would expect there to be the development of a panic attack, Dr Schultz opined. Also it would be expected that there would be a pattern of avoidance which would generalise over time and to other situations which reminded the person of enclosed noisy environments. A person may then move towards more typical and very disabling agoraphobic disorders where people avoid shopping centres, being with groups of people and over a period of time become very disabled. Dr Schultz did not obtain such a history from Mr Monteith. While Mr Monteith reported to Dr Schultz that he found the machinery space below deck unpleasant and even anxiety provoking or worrying, it never seemed to reach the extent where he would have a panic attack below deck and have to run out, apart from the one occasion when the scare charge went off.

117. Dr Schultz noted that patients with anxiety and phobic disorders not uncommonly abuse alcohol as well. This is a form of self-treatment. Paradoxically, the consumption of alcohol makes the condition worse and over time the anxiety or phobic disorder worsens with increasing levels of alcohol use. Dr Schultz further noted that Mr Monteith did record anxiety symptoms, including feeling tense, uptight and a bit shaky at times. They did not reach the criterion which Dr Schultz would consider to be a panic attack which includes having palpitations, shortness of breath, feeling faint and dizzy and being able to maintain ones composure. Dr Schultz noted that while Mr Monteith does not like going to shopping centres, this was not sufficiently strong to indicate a phobic disorder that had generalised and become increasingly worse. If that had been the case, then it would be expected that Mr Monteith would never go into a shopping centre because that whole concept would be too frightening for him. If people cannot genuinely avoid the things that they fear, Dr Schultz opined, the person tends to get over the fear. Dr Schultz further noted that there are two different disorders, namely a panic attack disorder and a phobic disorder. A panic disorder involves people having panic attacks out of the blue for no particular reason. This can then often lead to an avoidance or phobic disorder. This is not the case with Mr Monteith.

118. Turning to the issue of alcohol abuse and dependence, Dr Schultz noted that Mr Monteith began drinking heavily while he was in the Navy and had commented that on his way back from Vietnam this heavy drinking pattern started and certainly was present on his shore-based visits. Heavy consumption of alcohol caused chemical changes which leads to dependence. After the trip to Vietnam, Mr Monteith had indicated to Dr Schultz that he was abusing alcohol. If a person was abusing alcohol for a few weeks, the person would become tolerant meaning he or she would drink more without being obviously affected. If consumption of alcohol continues with tolerance, then there is the beginning of a dependence factor and that may be over three or four weeks. If the person then ceased alcohol consumption there may be some early signs of withdrawal, Dr Schultz concluded.

SUBMISSIONS

119. Mr Dawson submitted that this matter involves a determination in relation to the conditions of diabetes mellitus, chronic airflow limitation, post traumatic stress disorder or a psychiatric condition not otherwise specified, psychoactive substance abuse or dependence and hypertension.

120. In relation to the condition of diabetes mellitus, Mr Dawson noted that Dr H Grunstein, Consultant Endocrinologist, provided details of this condition's existence (T15, Bundle 2) in 1998. There are further records contained within the clinical records and notes of General Practitioner, Dr Chia (Exhibit A9) and specifically an entry at page 20 of the clinical notes for 26 May 1997 which indicates diabetes.

121. In relation to chronic airflow limitation, Mr Dawson noted that the diagnosis is established by Dr A Aouad (T6, Bundle 1, p52; T8, Bundle 1, p55, T15A, Bundle 1, p84) and Dr T Anderson (T19, Bundle 2, p166).

122. Mr Dawson submitted that the issue of the psychiatric disorder is by far the most complex. In relation to diagnosis, Dr L Brown in her report of 9 February 2000 (Exhibit A5), diagnosed post traumatic stress disorder. Dr N Schultz noted that if Mr Monteith's assertions in terms of events is correct, then a diagnosis of post traumatic stress disorder is appropriate (Exhibit R3). If the assertions were not found to be correct, then post traumatic stress disorder cannot be supported as a valid diagnosis. Dr A Samad, Consultant Psychiatrist, noted on 19 September 1996 (T9, Bundle 1, pp 56-59) and 2 September 1997 (T15A, Bundle1, p85-89) that Mr Monteith suffered from post traumatic stress disorder. Dr S Smith, Consultant Psychiatrist, in a report dated 20 March 1998, opined that Mr Monteith displayed the diagnostic criteria for post traumatic stress disorder (T29, Bundle 1, p 153).

123. In relation to the condition of alcohol abuse or dependence, Mr Dawson submitted that such a diagnosis is generally accepted by the medical and psychological experts. There is therefore no issue about whether or not Mr Monteith suffers from alcohol abuse or dependence but more as to its causation related to its service. It is certainly the view of Dr Brown, Dr Schultz and Associate Professor Mattick that Mr Monteith suffers from alcohol abuse or dependence.

124. In relation to the condition of hypertension, Dr K S E Chow, Consultant Physician and Cardiologist, diagnosed this condition (T10, Bundle 1, p60) as does Dr P Chia (T20, Bundle 1, p104) and Dr T Anderson, Consultant Occupational Physician (T19, Bundle 2, p162).

125. Mr Dawson submitted that Mr Monteith meets the diagnostic criteria contained within the relevant Statements of Principles, Instrument Number 82 of 1999 as amended by Instrument Numbers 9 and 91 of 2001 concerning Diabetes Mellitus. The contention in relation to this condition is that Mr Monteith's war-caused smoking habit led to his contracting diabetes mellitus. Mr Monteith's Statement (Exhibit A1) in relation to his smoking history and his evidence at hearing (Transcript, 11 February 2002, pp28,29) indicates that Mr Monteith reports variations in the quantities of cigarettes consumed. Mr Dawson submitted that the pattern which has been explained is that Mr Monteith commenced smoking when he was 16 years old but did not smoke very much at that time. He was not able to afford cigarettes at that age given the cost. Mr Monteith's smoking increased after the USS Evans incident and finally increased when serving in HMAS Sydney. While acknowledging the variation in answers Mr Monteith had provided in Smoking Questionnaires and in oral evidence, Mr Dawson submitted that it is significant that there is a pattern of increase in smoking in relation to the two stressful events he experienced during navy service. Mr Dawson contended that while Mr Monteith did not carefully answer questions in terms of his smoking history some 30 years ago, at hearing he provided very clear evidence about his smoking history which is that he started smoking "Winfield Blue" smoking up to two 25 cigarette packs per day. Furthermore, Mr Dawson submitted that there was unchallenged evidence contained within the Statutory Declaration of Mr J James who had stated that he had known Mr Monteith for 32 years since his joining the Navy, noting that prior to service Mr Monteith smoked and drank very little and after the sinking of the USS Evans and the scare charge incident, Mr Monteith smoked and drank heavily. Mr Dawson also relied on the report by Associate Professor Mattick (Exhibit R2, p6, 7). Thus, Mr Dawson submitted that Mr Monteith's circumstances in relation to his smoking indicated a war-caused smoking habit, which then allowed him to meet the required smoking factor in the Statement of Principles. The date of effect for acceptance of diabetes mellitus as a war-caused condition is 21 September 1999.

126. In relation to chronic airflow limitation, Mr Dawson submitted that Mr Monteith met the diagnostic criteria contained within paragraph 2(b)(a) of the relevant Statement of Principles, Instrument Number 136 of 1996 concerning Chronic Airflow Limitation. This is supported by the report of Dr A Aouad, Thoracic Physician (T6, Bundle 1, p52, T15A, Bundle 1, p84). In relation to the relevant factor in the chronic airflow limitation Statement of Principles, Mr Dawson submitted that Mr Monteith smoked more than ten pack-years of cigarettes prior to the clinical onset of chronic airflow limitation and thus met Factor 5(a) of Instrument Number 136 of 1996. The date of effect for acceptance of chronic airflow limitation as a war-caused condition is 11 April 1996, Mr Dawson submitted.

127. Turning to the psychiatric condition, Mr Dawson submitted that Mr Monteith suffers from post traumatic stress disorder and that he satisfies the diagnostic criteria contained within Instrument Number 15 of 1994 as amended by Instrument 225 of 1995 concerning Post Traumatic Stress Disorder. The evidence for this is found within the following: Report and oral evidence of Dr L Brown (Exhibit A5; Transcript 11 February 2002, pp79-94); Report and oral evidence of Dr N Schultz (Exhibits R3, R4, R5; Transcript, 12 February 2002, p47); Reports of Dr A Samad (T9, Bundle 1, pp56 - 59, T 15A, Bundle 1, p85); report of Dr S Smith (T29, Bundle 1, p 153).

128. Mr Dawson submitted that the condition of post traumatic stress disorder was caused or exacerbated by Mr Monteith's experiences in South Vietnam whilst on board HMAS Sydney and in particular during the first trip to Vietnam from 20 September until 16 October 1971. The relevant factor requires that Mr Monteith experienced a stressor prior to the onset of the condition. The definition of experiencing a stressor does not carry the onus of being a "severe stressor" which appears in later Statements of Principles. It is not the Applicant's primary submission that the USS Evans collision in 1969 caused a post traumatic stress disorder that was subsequently aggravated by Vietnam service, although there is some evidence that that scenario is a possibility Mr Dawson submitted. The Applicant's submission is that the USS Evans event primed Mr Monteith for later experiences and made him more vulnerable. Both Dr Schultz and Dr Brown saw some merit in that scenario. Associate Professor Mattick also indicated some support for this proposition as noted in his evidence to the Tribunal (Transcript, 12 February 2002, p 30).

129. Mr Dawson referred the Tribunal to Re Howe and Repatriation Commission (1999) 59 ALD 309 in which that Tribunal dealt with the pre-existing experience of Mr Howe followed by his Vietnam service, hence making Mr Howe more vulnerable than others because of previous experiences. In Re Hughes and Repatriation Commission [2000] AATA 571, there was consideration of Mr Hughes' experience prior to service in Vietnam. In that case, the Veteran was sent to Vietnam and faced experiences there which might not otherwise on their own have been acceptable as a stressful event. In that case, Dr Lewin, Consultant Psychiatrist, noted that a person who had been to a significant stressor may be more vulnerable to experiences on service.

130. Specifically in relation to Mr Monteith's circumstances, Mr Dawson submitted that the experience with the USS Evans did not cause post traumatic stress disorder. It is either the combination of that incident and the Vietnam incident as postulated by Dr Brown or the service alone in Vietnam which caused post traumatic stress disorder. Certainly Mr Monteith's evidence about his reactions and actions following the USS Evans incident in that he went below to obtain his camera and then subsequently took photographs, does not suggest any feelings of helplessness, horror or fear, Mr Dawson conceded. However, Mr Dawson submitted that it is clearly significant in terms of what Mr Monteith later experienced in Vietnam. When on his first trip in HMAS Sydney to Vietnam, Mr Monteith was working in the boiler room with the conditions of great heat, being below deck, and noise. It is noted that the noise level was in the range of 90 decibels with the temperature in the vicinity of 135 to 140 degrees Fahrenheit (Exhibit A14). The sound of scare charges dropped over the side by sentries sounded similar to the crack of a raw hide whip and would be quite frightening if no warning was provided, Mr Dawson contended. Mr Dawson further referred the Tribunal to noises heard in the machinery spaces similar to scare charges being released, such as the glass shattering of a gauge or one of the boiler tubes bursting. When Mr Monteith heard the scare charge explosion, he was working below deck and he thought that the ship was being attacked. His immediate reaction was to get out because he thought he would die if he stayed there. Subsequently on deck, Mr Monteith saw what he described as an Asian military person floating face down in the sea. Mr Dawson noted that in Commodore Mulcare's historical reports and in oral evidence, the tanks between the doubled lined hull were likely to be half empty following the voyage to Vietnam and this would amplify the noise of the scare charges.

131. Commodore Mulcare's evidence indicated that it was notoriously difficult to get information to the stokers, so whilst he and others did not think it likely that Mr Monteith was unaware of the random dropping of scare charges in terms of the specific announcements concerning the event relied upon by Mr Monteith, it could not be absolutely determined that Mr Monteith would have been aware of an announcement of that actual scare charge being dropped.

132. In Repatriation Commission v Binding [1999] FCA 974, the issue was not that the sound of the scare charge was a problem so far as it met the first arm of the diagnostic definition of the stressful event, but rather whether or not Mr Binding's reaction satisfied the second part of the definition which requires the experience of helplessness, fear or horror. Mr Dawson submitted that there are similarities in that case to Mr Monteith's circumstances in that Mr Monteith felt extremely afraid and fled for what he believed was his life.

133. There is conflicting evidence in terms of reports provided as attachments to Commodore Mulcare's report, specifically concerning the statement of Commodore Helyer, which discussed circumstances prior to Mr Monteith's service but nevertheless still held some relevance. Mr Monteith's evidence was that he did not wear earmuffs and was discouraged from this because of heat and the fact that with significant perspiration, the risk of ear infection in these conditions when wearing earmuffs was increased. Accordingly, the Applicant relies on Commodore Helyer's evidence in terms of the effects of noise on veterans and particularly in Mr Monteith's case in relation to him already being quite vulnerable to such experiences. Mr Monteith was below the waterline where it was very noisy, very hot and the explosion of the scare charge was enough to trigger his post traumatic stress disorder, Mr Dawson contended.

134. In relation to the issue of the floating body, this is confirmed from the evidence. Although there is variation in detail of what the body looked like and what clothing it wore, Commodore Mulcare in Exhibit R8 concludes that Mr Monteith did see the body.

135. Following the stressful event in Vietnam, there is evidence before the Tribunal as to how Mr Monteith's performance and behaviour changed, Mr Dawson submitted. Mr Monteith was reprimanded on occasions and his behaviour deteriorated (Transcript, 11 February 2002, p21). Mr Monteith avoided the boiler room (Transcript, 11 February 2002, pp22, 24, 25) and he continued to think about the scare charge event (Transcript, 11 February 2002, pp74,75). Mr Monteith became violent (Transcript, 11 February 2002, p25, 26, 27, 77, 78) and he developed a fear of ladders (Bundle 2, p20).

136. Referring to subsection 196B(14) of the Act, it is required that a factor in a Statement of Principles need only to have resulted from an occurrence in service or to have arisen out of or be attributable to service. Mr Dawson noted that in the High Court decision Repatriation Commission v Law (1981) 147 CLR 635, the High Court implicitly approved the decision of the Full Court in Repatriation Commission v Law (1980) 31 ALR 140, which held that "arising out of" does not require a causal relationship which is immediate, direct, proximate, real, soul or dominant and that something less proximate is sufficient as long as it is not fanciful. Mr Dawson further submitted that "attributable to" need not be the soul or dominant cause, it is sufficient to show attributability if the cause is a number of causes providing it is a contributing cause. This also was set out in Kattenberg v Repatriation Commission (2002) 34 AAR 562 at paragraph 42 and 43. Mr Dawson submitted that that test is relevant both in relation to Mr Monteith's psychiatric condition and as it was in Kattenberg v Repatriation Commission (supra) to the issue of smoking. Other relevant cases include Re Kelly and Repatriation Commission [2001] AATA 254; Re Chaplin and Repatriation Commission [2000] AATA 688; Re Hamilton and Repatriation Commission [2000] AATA 299; and O'Neil v Repatriation Commission (2001) 34 AAR 290. In the latter case, it was noted that it was oddly inappropriate and unlikely to have been intended that in order to ascertain whether an occurrence evoked feelings anxiety or stress, that the Tribunal is to test that subjective experience against some objective factor.

137. Mr Dawson referred the Tribunal to Mrs Monteith's evidence which indicated that it was clear from that and the documentation, that Mr Monteith exaggerated his knee condition to avoid going back to sea. Mrs Monteith noted how her husband bandaged his knee to make it swell. Mr Monteith's anger is also symptomatic of post traumatic stress disorder, Mr Dawson submitted. While there is evidence on the one hand that Mr Monteith was functioning quite well, the other evidence from Mrs Monteith relates to her husband being short tempered from the time after they were married. Furthermore, Mrs Monteith in evidence to the Tribunal certainly did not consider herself to be immature as also reported in the service documents. While this is mentioned in those documents, Mr Dawson submitted that it was of little assistance. Mrs Monteith was certainly not isolated and had a great deal of support from relative and friends. She did not think Mr Monteith's wanting to leave the Navy had anything to do with her although he might have used it as an excuse, because he was determined not to go back to sea, particularly in the boiler room.

138. The Tribunal in dealing with Mr Monteith's claim for alcohol abuse or dependence should consider Mr Monteith's statement (Exhibit A1, paragraphs 1-8). Mr Monteith was initially paid $10.00 per fortnight in service. He would consume alcohol mainly on weekends and when on shore leave, but could not afford very much initially. After the Vietnam events, his drinking and smoking increased and again that is supported by the Statutory Declaration of Mr James who noted that Mr Monteith drank more regularly and had access to beer rations at 20 cents per 26 ounce can. After Vietnam, Mr Monteith's alcohol consumption increased to drinking four to six large cans each night and "wiping himself out" on shore leave. The evidence agreed between the experts is that Mr Monteith has continued heavy alcohol consumption over the years. In Benjamin v Repatriation Commission (2001) 34 AAR 270, the Full Court of the Federal Court noted at paragraph 55 that the Tribunal must first characterise the psychiatric problem exhibited by the Applicant. There must be a determination as to diagnosis to the Tribunal's or the decision-maker's reasonable satisfaction.

139. Mr Dawson submitted that Mr Monteith's alcohol abuse or dependence is caused or exacerbated by his experiences in Vietnam, particularly during his first trip. Mr Monteith experienced a stressful event as defined in the relevant Statement of Principles, Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence prior to the clinical onset of psychoactive substance abuse or dependence and maintained that abuse post service. The alternative factor satisfied by Mr Monteith's circumstances is that he suffered from a psychiatric disorder prior to the clinical onset of psychoactive substance abuse or dependence that is, Mr Monteith satisfied either Factors 1(a) or (b) of the relevant Statement of Principles. The date of effect of Mr Monteith's entitlement to Disability Pension for psychoactive substance abuse or dependence, if he was successful, is 11 April 1996, Mr Dawson submitted.

140. In relation to the claimed condition of hypertension, Mr Monteith having satisfied the diagnostic criteria contained within the relevant Statement of Principles, Instrument Number 25 of 1999 concerning Hypertension satisfies, in Mr Dawson's contention, Factor 5(b) in that Mr Monteith's hypertension is caused by his service- related alcohol abuse or dependence from which he continued to suffer at least until the accurate determination of hypertension. If Mr Monteith was successful in this being determined by the Tribunal, then the date of effect for the payment of Disability Pension for hypertension is 17 June 1997. Mr Dawson referred the Tribunal to Re Boardman and Repatriation Commission [2001] AATA 764 in which that Tribunal noted the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82. Mr Dawson noted that the Tribunal determined at paragraph 79:

"If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SOP, which the SoP says must exist, and that factor must be related to the Applicant's service."

141. Mr Dawson submitted that the Respondent is asking the Tribunal to balance the evidence, when the requirement is that there be consideration of the whole of the evidence and whether or not there is anything that supports or points to the hypothesis. It is not the test to determine whether or not evidence brought by the Respondent knocks holes in the hypothesis at Step 3 of the Repatriation Commission v Deledio (supra) process. That is not the test, Mr Dawson submitted, and it is not until after the existence of a reasonable hypothesis is determined that the Tribunal can give some consideration to the issue of fact finding or whether or not it is convinced beyond reasonable doubt that there are facts raised to support the reasonable hypothesis. Mr Dawson submitted that the Respondent's position is that Mr Monteith's evidence is unreliable and this equates with a circumstance which would convince the Tribunal beyond reasonable doubt not to find for Mr Monteith. Mr Dawson submitted that that is not enough. Even if the Tribunal did consider Mr Monteith's evidence to be unreliable, it has to be such that it absolutely convinces the Tribunal beyond reasonable doubt, not that it has raised questions.

142. Mr Dawson submitted that Mr Monteith has not been shown under cross-examination to be a liar and that would be required to convince the Tribunal beyond reasonable doubt. The fact that Mr Monteith might have said something in one smoking questionnaire at one stage and something different in another should do no more than raise questions in the Tribunal's mind, Mr Dawson submitted. On the reverse onus test beyond reasonable doubt, there is not sufficient material to convince the Tribunal beyond reasonable doubt to find against Mr Monteith, Mr Dawson concluded. It is impossible, Mr Dawson contended, for the Tribunal to dismiss this application for review when matters have not been raised or challenged, for example, the evidence contained in Mr James' Statutory Declaration.

143. In relation to the matter of assessment, Mr Dawson submitted that all matters should be remitted to the Respondent for the correct assessment noting the reports of various experts are somewhat old.

144. Mr Dawson referred the Tribunal to Mr Monteith's pattern of applications for various forms of compensation. In this regard, Mr Monteith applied to the Department of Veterans' Affairs in 1996 and 1997 and to the Military Compensation and Rehabilitation Service in 1998. A file note from Mr P Conliffe (Exhibit A7, p29) clearly indicates that that was understood. By 1998, the Military Compensation and Rehabilitation Service certainly knew what was happening and there was no attempt, Mr Dawson submitted, to keep Mr Monteith's prior claims for Disability Pension from the Military Compensation and Rehabilitation service. While Mr Dawson submitted that the assessment should be remitted, in relation to Mr Monteith's inability to work, it is contended that such inability is not impacted upon by Mr Monteith's hypertension or diabetes. The inability to work arises from chronic airflow limitation and his psychiatric conditions, however labelled, Mr Dawson contended.

145. Miss Henderson for the Respondent referred first to the process in deciding this matter in terms of the reasonable hypothesis. Miss Henderson noted Re Boardman and Repatriation Commission (supra), but submitted that the requirement contained in subsection 120(3) of the Act is that an opinion be formed after looking at all of the material. The approach urged upon the Tribunal by Mr Dawson in reference to Re Boardman and Repatriation Commission (supra) is in effect incorrect, Miss Henderson contended. Further support for this approach is contained within the High Court decision in Repatriation Commission v Owens (1996) 70 ALJR 904.

146. In relation to Mr Monteith's psychiatric condition however diagnosed, Miss Henderson submitted that the Tribunal would find itself unpersuaded that a reasonable hypothesis had been raised connecting a psychiatric illness and Mr Monteith's experiences in Vietnam. Mr Monteith's first claim (T5, Bundle 1) was in respect of a claim of various conditions including anxiety and alcohol linked to the event of the collision of the HMAS Melbourne and USS Evans. In the questionnaires related to Mr Monteith's smoking and alcohol consumption, Mr Monteith had claimed through his scribe that he had commenced consuming alcohol on a regular basis in 1966, the reason for doing so, to be sociable and that the level of consumption was two or three cans of beer. In relation to there being changes of alcohol consumption, it was recorded that this occurred in 1969 when HMAS Melbourne and USS Evans collided and Mr Monteith asserted he then was drinking four cans of beer daily. In relation to Mr Monteith's smoking questionnaire, he recorded that he commenced smoking when he joined the Navy and smoked one packet of "roll your own" cigarettes to be sociable and gave cigarette smoking up in 1989. In relation to the question of change in his habit, it was recorded that this changed in 1960 from 25 to 30 cigarettes per day because of his nerves. Mr Monteith's history at that stage was that everything turned on the USS Evans/ HMAS Melbourne collision. In recent times, Miss Henderson submitted that the significance of the USS Evans incident has altered markedly. Under cross-examination, Mr Monteith claims to have no recollection of those forms completed by a scribe in 1996. Mr Monteith could not explain how it was that his claim under the Military Compensation Scheme lodged around that time also relied upon the USS Evans incident as the sole cause of his "nerve problems" and his increased alcohol and smoking consumption, with no reference being made to Vietnam.

147. The prominence of Vietnam service in HMAS Sydney occurred in 1997, Miss Henderson submitted. The disability claimed in the later claim form included chronic airflow limitation, skin rashes, psoriasis, anxiety, hypertension, post traumatic stress disorder and right knee. The causation for anxiety, hypertension, and post traumatic stress disorder is provided as trauma caused by the sinking of the USS Evans compounded by a war-caused trauma in HMAS Sydney in Vietnam. The cigarette and alcohol questionnaires completed in relation to the second claim form indicated that cigarette smoking occurred when Mr Monteith joined the Navy as a result of peer pressure and ready availability. The dates of a change in the cigarette smoking habit differed so that in September/October 1971 there is a consumption of 50 plus cigarettes a day linked to stress in Vietnam, that is an increase of 40 a day after the sinking of the USS Evans.

148. In relation to the more recent alcohol questionnaire, the change is that between 1967 and 1970 when Mr Monteith recorded that he increased his alcohol consumption due to work and peer pressure, the USS Evans incident seems to have disappeared at that point. It was previously recorded that his alcohol consumption increased after the 1969 USS Evans incident. The 1971 increase, recorded in the subsequent alcohol questionnaire is related to stress from a trauma in Vietnam in 1971. Miss Henderson asked the Tribunal which history the Tribunal is to believe. Furthermore, Miss Henderson submitted that Mr Monteith is an unreliable historian. The significance of the USS Evans collision has waxed and waned in various versions provided by Mr Monteith. Dr Schultz told the Tribunal that when Mr Monteith spoke to him, the USS Evans incident did not seem to be of any particular importance. As Mr Dawson acknowledged, Mr Monteith's reaction to that incident did not seem to be consistent with fear, helplessness and horror. In marked contrast to his 1996 pension claim, Miss Henderson submitted that in the later claim, Mr Monteith minimised the changes in his behaviour after the USS Evans incident. The USS Evans incident was also minimised to both Associate Professor Mattick and Dr Schultz, even though it had been used as the basis for the Military Compensation Scheme claim and Mr Monteith's 1996 claim to the Department of Veterans' Affairs.

149. Miss Henderson noted that the history provided to Dr Brown is also somewhat different. Dr Brown was given to understand that Mr Monteith had a vivid clarity of recall in relation to the USS Evans incident and that it was somewhat more troubling and traumatic to him. In oral evidence, Dr Brown made it clear that she would have expected an onset of some serious symptoms at the time of that first incident with USS Evans, if it had been of such severity to sensitise him in a way which would have affected his future life. Dr Brown's expectation was that there would have been some symptomatology arising out of the USS Evans incident which would have subsided but implicitly laid dormant.

150. Considering the stressful event in relation to the first visit to Vietnam, Miss Henderson submitted that it is again very difficult to place any reliance on what Mr Monteith has said. Mr Monteith's evidence to the Tribunal, his accounts to Dr Samad and Dr Brown all have HMAS Sydney sailing into Vung Tau Harbour in transit when he heard the horrendous explosion. Considering the material gathered by Commodore Mulcare, there is nothing before the Tribunal, Miss Henderson submitted, to support the view that scare charges which are said to have been the cause of this horrendous explosion were ever thrown at any time while the vessel was sailing into port. The unchallenged evidence is that during a period of slack water, while HMAS Sydney was at anchor, divers went down, but during other periods, when divers were not in the water and the vessel was at anchor, scare charges were thrown. Lieutenant Commander Fitzgerald, who was interviewed by Commodore Mulcare, was the Diving Officer whose responsibility it was in 1971 to look after scare charges and divers, the type of defensive measures which were used to keep the vessel safe. He was quite sure that scare charges were not thrown from HMAS Sydney itself during 1971. They were thrown during that period from boats which were upstream from HMAS Sydney. One of the important aspects of Mr Monteith's case is his claim that he would have been sealed in the machinery space and unable to make an escape had the hull of the vessel been ruptured by an explosion. The evidence is that the boiler room is not sealed off in an emergency. The true situation as outlined by expert opinion is that an evacuation of the machinery space would occur had the hull of the vessel been breached.

151. Considering the floating body incident, Miss Henderson submitted that Mr Monteith did not recount a history of horror or distress or confrontation by the floating body. While there are confirmed reports of a floating body in the sea on 6 October 1971, Mr Monteith's description in relation to his reaction to that person was that "we had got him before he got us." This is not evidence consistent with strong feelings or reactions at being confronted with fear, helplessness or horror witnessing the dead person's body. Miss Henderson submitted that given the unreliability and changing accounts of various events and their significance, the Tribunal could not find on all the material that the hypothesis which is advanced connecting psychiatric condition with the USS Evans incident and with Mr Monteith's Vietnam's service has been made out.

152. Miss Henderson formulated a history in relation to the evidence which indicates that Mr Monteith joined the Navy when he was 16 and began smoking and drinking around the times that a young Australian male typically would, relying on Associate Professor Mattick in relation to that contention. During Mr Monteith's service in HMAS Sydney, he achieved promotion. He was assessed as being an above average seamen on 1 December 1971, not very long after Mr Monteith's first voyage to Vietnam. Mr Monteith was provided with an acting promotion which was later confirmed on 14 January 1972, not long before his fourth voyage to Vietnam. These promotions occurred during that period in which one would have expected Mr Monteith's psychiatric symptoms to be at their most florid, Miss Henderson submitted. Yet, on the evidence, Mr Monteith was actually performing well in view of the officers and those who were required to assess him.

153. Miss Henderson considered Mr Monteith's personal history noting that during navy service he met his future wife in February 1971 and they married on 1 March 1973. They decided to marry in about mid 1972 and on 1 July 1972, Mr Monteith made an application for discharge under the elective discharge scheme. Commodore Mulcare noted in his second report that this process involved waiting for approximately 18 months. The Applicant would have been able to leave the Navy on 31 December 1973. If the chronology is correct, a few days after lodging his application for discharge, Mr Monteith took up his last sea posting in HMAS Supply. This vessel, according to his evidence at Tribunal and to Associate Professor Mattick was a more relaxed vessel allowing him to leave the machinery space quite frequently. The evidence is that Mr Monteith's drinking and smoking habits decreased during service in HMAS Supply in part because it was less easy to obtain additional alcohol on that vessel. There were fewer young sailors who he could encourage to assist him in getting extra alcohol rations. There was no evidence of any withdrawal symptoms or difficulty occurring with decreased alcohol use in HMAS Supply.

154. Miss Henderson submitted that discipline problems and changes in behaviour which have received emphasis occurred in about 1973. In the second bundle of T documents at page 2, there is a history of Mr Monteith claiming that he was sick while ashore, falling down from stairs and straining his right knee in January 1973. In February 1973, Mr Monteith was resisting being returned to full duty and wanted a second opinion about his right knee. There is evidence also that Mr Monteith's mother phoned the Navy about her son's health. In August 1973, Mr Monteith made his application for a free discharge. There was an interview with a Chaplin and from the documentary evidence, Mr Monteith was allowed to leave the Navy because his young wife had trouble being on her own and was immature and dependent on him. Miss Henderson contended that the history is consistent with Mr Monteith, having decided to marry and set up household with a young lady who, in those days was regarded as immature. The history is consistent with Mr Monteith acceding to his young wife's request that he not go to sea, but stay ashore with her.

155. Mr Monteith was 23 years old when he left the Navy and was a man who had relatively few skills. Miss Henderson submitted that Mr Monteith joined the Water Board and then progressed on to technical college for two years in his own time obtaining a drainage certificate, which involved both technical and practical skills.

156. Mr Monteith then worked his way up the Water Board becoming promoted and eventually became an Inspector. Dr Chow described Mr Monteith as a person in a managerial position. Mr Monteith's prospects at the Water Board came to an end when the Water Board decided to abolish Inspector positions and there was no job left for him leaving him to take a redundancy. Mr Monteith then opened his own trucking business which he loved. It was a successful business and Mr Monteith owned several vehicles and drove himself. This scenario occurred, Miss Henderson submitted, in the context from Vietnam onwards of Mr Monteith drinking heavily and notwithstanding this, he was earning his living from the time he left the Water Board, as a driver. He was breathalysed a number of times, but was able to retain his driver's licence during the period he stated he was drinking significantly.

157. Considering Mr Monteith's social life, after leaving the Navy, he functioned very well. From about 1980 onwards Mr Monteith played indoor cricket in a team. In the early 1990s, he had dropped that activity and became involved instead with a four-wheel driving club where he became the club's environmental officer. He enjoyed going on outings with the group and it was a family activity with his wife and family. Mrs Monteith expressed regret at the eventual sale of the four wheel drive. In about 1996 or 1997, Mr Monteith joined the Masonic Lodge. Yet, on some of the psychiatric evidence, Mr Monteith is described during 1996 or 1997 as a man with no friends and no interests, a man who is very short tempered with people. Despite this picture, Mr Monteith participated very enthusiastically in the Masonic Lodge, sometimes attending as many as four meetings per week, which involved visiting lodges other than his own. Miss Henderson submitted that Mr Monteith worked his way up the promotional structure of the Masonic Lodge and became Worshipful Master, a position equivalent to a President of the Lodge and one with onerous and significant duties, particularly dealing with any new candidates joining the lodge. Although no new candidates joined, Mr Monteith knew that this was one of the duties of the Worshipful Master and potentially something he would have to deal with.

158. Miss Henderson submitted that rather than there being war-caused problems dramatically altering Mr Monteith's life, there was a radical change arising out of his back condition in late 1995 or early 1996. Mr Monteith was stopped from driving his truck on strong advice of his general practitioner. At that point of Mr Monteith's life, he was undertaking administrative duties. In October 1995, Mr Monteith commenced compensation court proceedings against the Water Board where he had injured his back through several falls. Those proceedings were eventually settled. During this period, Mr Monteith's weight increased and he was experiencing increasing problems with breathlessness. With increasing weight, Mr Monteith's breathing problems and diabetes and hypertension problems began to appear. Miss Henderson submitted that one would associate diabetes and chronic airflow limitation with causation or exacerbation through obesity and changed lifestyle. It was because of the back problem that Mr Monteith was unable to continue his activities with the four-wheel driving club.

159. At the same time as considering his entitlements against the Water Board, Mr Monteith was looking in 1996 to his entitlements as a veteran, Miss Henderson submitted. He signed his first claim for a Disability Pension in April 1996 and consulted Dr Samad, Psychiatrist, for the first time in June 1996. Miss Henderson noted that the reference to service in Vietnam, which is contained in Dr Samad's second report, is not present in his clinical notes. After the Commission refused Mr Monteith's first claim he then lodged his second claim with the emphasis being placed on events happening in Vung Tau Harbour. At that stage, Mr Monteith had his naval records and took them to visit Dr Samad. Miss Henderson submitted that it is at this point in 1997, that Vietnam emerged as the factor which was said to compound the event involving the USS Evans. There is nothing in the general practitioner's clinical notes which indicates problems about anxiety, dreams or sleep difficulty, startle responses, intrusive recollections and the like. Anxiety appears in the notes for the first time when Mr Monteith lodged his first claim to the Department of Veterans' Affairs. Sleep disturbance is reported to Dr Samad at the first consultation in 1996 but is not dealt with in the second report. Miss Henderson submitted that looking over Mr Monteith's ability to conduct a successful and rewarding working life with an apparently successful series of recreational activities, the Tribunal could not conclude that Mr Monteith was disabled by psychiatric disease during his working life post the Navy. Miss Henderson submitted that the crucial change for Mr Monteith occurred in late 1995/early 1996 when the bad back which he had been carrying since his time in the Water Board, stopped him from driving his vehicle.

160. Miss Henderson submitted that any psychiatric diagnosis, including the diagnosis of post traumatic stress disorder is dependent on Mr Monteith's credibility. Both Dr Brown and Dr Schultz have shown appropriate reluctance, Miss Henderson submitted, to adopt Mr Monteith's accounts of his problems. In this regard, Dr Brown obtained her history of a startle response, intrusive thoughts and the like after taking Mr Monteith through his symptoms and Mr Monteith did not volunteer any particular problems. In relation to Benjamin v Repatriation Commission (supra), the Tribunal is required to conclude whether the conditions claimed by the Applicant point to, in this case, some psychiatric diagnosis, other than post traumatic stress disorder. Miss Henderson submitted that there is nothing which could lead the Tribunal to conclude that Mr Monteith suffers from a phobic disorder. Neither Dr Schultz nor Associate Professor Mattick concluded that Mr Monteith has a phobic disorder. This is particularly so in view of the lack of symptoms of panic attacks and anxiety problems during a time after the incident in 1971 on Mr Monteith's first voyage to Vietnam. Given the Applicant's good functioning right through until 1995 and 1996, it would still be difficult to even consider that there was a generalised psychiatric problem which was difficult to label, Miss Henderson contended.

161. In relation to the various diseases which have sprung out of either alcohol or tobacco use, Miss Henderson submitted that the Tribunal is dependent on the credibility of the Applicant. In this regard, Miss Henderson noted that the evidence has changed in its forms from reliance on the USS Evans incident in 1996, to relying on service in Vietnam in relation to Mr Monteith's second claim. Mr Monteith has proved so changeable in relation to his evidence, Miss Henderson submitted, that the Tribunal would not find itself able to rely on the latest and freshest version he provided in oral evidence to the Tribunal. Miss Henderson submitted that Associate Professor Mattick summed it up well when he referred to Mr Monteith as being a man who has lived his life, not being disabled in any way and one who, given what is claimed, would have been expected to have evidenced greater anxiety symptoms, possible phobic symptoms or other psychiatric diseases during his post discharge career. Mr Monteith continues to function at a good level now, as was reported by Dr Anderson and as evidenced by the Tribunal. Mr Monteith was able to function at an extensive level in the Masonic Lodge, especially in 1996, a period when he says he cannot remember how he came to give details which were in his 1996 compensation claim, but nevertheless on four nights per week was attending Masonic Lodges and taking part in the activities and formal meetings. Thus, Miss Henderson contended, even in 1996 when matters were at their worst for the Applicant, he had an excellent capacity to participate in social activities and furthermore Mr Monteith's subsequent Masonic Lodge career during which he rose through the ranks, required him being able to deal with people and take a position of command in relation to others.

162. The contemporaneous material from Mr Monteith's naval days, Miss Henderson submitted, indicated that he was under surveillance because of his medical problems. Mr Monteith was a sailor who had a right knee injury during his service. He did describe a fear of ladders but that is entirely consistent, Miss Henderson submitted, with his knee problem. Miss Henderson submitted that nothing in the Navy material supports the view that Mr Monteith was suffering a psychiatric problem at that stage. At best, as was noted by Mr Monteith Commanding Officer, he is a man who did not particularly get along with people. That was well short of having developed a service-related psychiatric illness. While it is clear that there are problems with Mr Monteith's temper, Miss Henderson submitted that problems with anger management do not establish a psychiatric illness. These anger attacks had not received any emphasis or been attached any particular significance in the reports of the various psychiatrists who have examined him.

163. In conclusion, Miss Henderson submitted that the evidence is not sufficiently reliable for the Tribunal to be satisfied that a reasonable hypothesis is pointed to by the evidence in relation to all of the conditions.

164. In the event the Tribunal did not adopt the Respondent's reasoning, it is agreed between the parties that the matter be remitted for assessment. In terms of a Special Rate, the reports are very much out of date and an accurate up-to-date assessment in relation to the potential for a Special Rate is required, particularly noting the non war-caused back condition which lead to Mr Monteith leaving the workforce.

FINDINGS

165. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law.

166. Mr Monteith has claimed a number of conditions as being war-caused, namely chronic airflow limitation, diabetes mellitus, post traumatic stress disorder, alcohol abuse or dependence and hypertension. The Tribunal will confine its attention to Mr Monteith's operational service as it is during this period that the contentions arise as to war-caused disability.

Chronic Airflow Limitation

167. Following the principles established in Repatriation Commission v Budworth (2001) 116 FCR 200, the Tribunal is reasonably satisfied that the correct diagnosis of Mr Monteith's respiratory condition is chronic airflow limitation as supported by the expert medical opinion of Dr Aouad, Thoracic Physician. Furthermore, the diagnostic criteria of the relevant Statement of Principles, Instrument Number 136 of 1996 concerning Chronic Airflow Limitation are met. The Tribunal notes that there is no dispute as to the Statement of Principles and finds that applying Repatriation Commission v Gorton (supra) supports this conclusion. Mr Monteith claims the onset of the condition is in 1988 and Dr Chow, Consultant Physician and Cardiologist, notes shortness of breath for several years prior to 1997 (T10, Bundle 1, p60). The onset of the condition is difficult to establish, but Dr Aouad noted in 1996 that Mr Monteith has had breathing difficulties for some years but more problematic in recent times. Dr Aouad noted that Mr Monteith was a smoker for 20 years (T6, Bundle 1, p52). On the evidence, the Tribunal is reasonably satisfied that the onset of chronic airflow limitation occurred in the late 1980s.

168. The causative link between chronic airflow limitation and service is contended to be Mr Monteith's smoking consumption. The hypothesis put is that Mr Monteith has a war-caused smoking habit which caused his chronic airflow limitation. Following the steps outlined in Repatriation Commission v Deledio (supra), the Tribunal does not consider that this general hypothesis is beyond the realms of possibility or is fanciful.

169. The Tribunal next considers the relevant Statement of Principles and the applicable Factor 5(d) which requires smoking at least ten pack-years of cigarettes before the clinical onset of chronic airflow limitation. As was noted in Bull v Repatriation Commission (2001) 66 ALD 271, what is required by subsection 120(3) of the Act is the formulation of an opinion on the material before it, as to whether a reasonable hypothesis is raised connecting the injury, disease or death with the particular circumstances of service. The Tribunal is not at this stage entitled to find facts or reject matters. As there is a Statement of Principles in force, the decision-maker, in this case the Tribunal, must form an opinion if the general hypothesis is reasonable by ascertaining if the hypothesis fits or is consistent with a factor in the Statement of Principles.

170. In Mr Monteith's circumstances, the material points to him commencing smoking when he joined the Navy in 1966 aged 16 years and increasing his smoking during service until his cessation in 1987. It is hypothesised that there is an increase in smoking in 1969 after the USS Evans collision and a further increase after his first trip to Vietnam on operational service in 1971 as a result of the stress of that service. The material, on the face of it, points to a smoking habit which increased or was aggravated to the requisite level during operational service in 1971 and thus is a war-caused smoking habit. Thus, Factor 5(d) is met and on the material a reasonable hypothesis is raised linking war-caused smoking to chronic airflow limitation.

171. The Tribunal turns to consider whether or not pursuant to subsection 120(1) of the Act that there are facts in existence, which support the raised reasonable hypothesis beyond reasonable doubt. Mr Monteith provided evidence in the Tribunal's view, to the best of his ability. It is not disputed by Mr Monteith that the figures provided in smoking questionnaires completed in 1996 and 1997 are not consistent. The Respondent submits that such inconsistencies reflect Mr Monteith's poor credibility. He cannot be believed and thus there are not sufficient facts to support the raised reasonable hypothesis, the Respondent contends. At first analysis such a conclusion is tempting. However, considering the oral and documentary evidence as a whole, as the Tribunal must, the Tribunal has to deal with the overall force of the evidence which is that smoking commenced on service, increased after the USS Evans' collision in a period of non-eligible service and increased again or was aggravated during a period of operational service when Mr Monteith was on his first trip to Vietnam in 1971. The figures provided as to quantity do vary in the written and oral evidence. That is not unusual in this jurisdiction where veterans are required to recall circumstances some 25 or 30 years after the event. The legislation under section 119 of the Act allows for the vagaries of memory and the passage of time, but obviously not to the extent of asserting or inventing evidence as discussed in Repatriation Commission v Bey (1997) 79 FCR 364.

172. Mr Monteith's clear evidence to the Tribunal is that his smoking increased after his first trip to Vietnam because of the stress he experienced. The Tribunal also considered the uncontested evidence of Mr J James (Exhibit A7, p35), who in his Statutory Declaration noted that he has known Mr Monteith for 32 years. Mr James noted a marked increase in cigarette consumption after the USS Evans' incident and then again a further increase after Mr Monteith's return from Vietnam. Mr James also noted an increase in Mr Monteith's alcohol consumption to "intolerable levels" and which he continued later into his life.

173. Accordingly, the Tribunal finds that while there are inconsistencies in the smoking levels, these are not sufficient to convince the Tribunal beyond reasonable doubt that there are not sufficient facts to support the raised reasonable hypothesis. Thus, the Tribunal accepts and so finds that Mr Monteith had a war-caused smoking habit which continued for ten years at the rate of 7,300 cigarettes per year until the onset of chronic airflow limitation in the 1980s. Mr Monteith's first trip to Vietnam in 1971 contributed to an increase in his smoking of cigarettes in a material way. Therefore, on all of the evidence, the Tribunal determines pursuant to subsection 120(1) of the Act, that the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient reason for determining that Mr Monteith's chronic airflow limitation is war-caused. Mr Monteith is qualified accordingly for receipt of a Disability Pension for the condition of chronic airflow limitation with effect from 11 April 1997. The assessment of the correct rate of Disability Pension for this condition is remitted to the Repatriation Commission.

Diabetes Mellitus

174. It is difficult to determine the date of onset of Mr Monteith's diabetes, which the Tribunal is reasonably satisfied is the correct diagnosis having considered all the evidence. Dr Grunstein reports on 1 July 1998 of a worsening of Mr Monteith's symptoms in the last 12 months (T15, Bundle 2, p126). On 7 May 1998, Dr L J Day, Consultant Physician and cardiologist reported that "It is highly likely that he is diabetic, ..." (Exhibit A9, p8). Dr Chia, General Practitioner, in his clinical notes has an entry on 17 May 1997, in which the blood sugar levels are reported to be 8.6 which is higher than the glucose concentration required in the diagnostic criteria in the relevant Statement of Principles, Instrument Number 82 of 1999, as amended by Instrument Numbers 9 of 2001 and 91 of 2001. Dr Chow in his report of 15 January 1997, (T7, Bundle 2, p108) notes no history of diabetes at that stage. Therefore, the Tribunal is reasonably satisfied that the onset of Mr Monteith's diabetes occurred between May 1997 and July 1998.

175. The hypothesis which is contended is that Mr Monteith's war-caused smoking habit caused his diabetes mellitus. This general hypothesis is at face value not fanciful, nor out of the realms of possibility. Pursuant to subsection 120(3) of the Act, turning to the relevant Statements of Principles, Factor 5(c) requires the smoking of at least ten pack-years of cigarettes or the equivalent in other tobacco products and where smoking has ceased, the clinical onset must have occurred within ten years of cessation. Mr Monteith ceased smoking in 1987 thus requiring the onset of diabetes mellitus by 1997. The Tribunal has already found that it is reasonably satisfied that Mr Monteith meets the diagnostic criteria for diabetes mellitus and that the onset, based on all the medical evidence, occurred between 1997 and 1998. The Tribunal has also determined that Mr Monteith's smoking habit was increased or accelerated by his operational service, thus finding that he had a war-caused smoking habit based on the material contribution of operational service to the increase in his smoking. The Tribunal notes the decision in Kattenberg v Repatriation Commission (supra) in which Emmett J noted in that matter that the Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by Mr Kattenberg's service or that it would not have occurred but for the rendering of that service. This has application to Mr Monteith's circumstances. The Tribunal also notes the decision in Hutton v Repatriation Commission (1998) 49 ALD 8 at 12:

"In my opinion, in taking administrative decisions under the Act, it is inappropriate to take such a technical approach to decision-making. An administrative decision-maker is bound to deal with the substance of the matter in a sensible, efficient, administrative manner".

176. In relation to facts sufficient to disprove the material contribution of operational service to Mr Monteith's smoking habit to the level of ten pack years of cigarettes, in this case, this has been dealt with under the section for chronic airflow limitation. In terms of the onset of the diabetes mellitus which is at issue because of the need to have an onset within ten years of cessation of smoking, the Tribunal is not satisfied beyond reasonable doubt that there is sufficient evidence to disprove the facts supporting an onset of diabetes mellitus in 1997 given particularly the medical reports of Dr Chia, Dr Day and Dr Grunstein. Accordingly, the Tribunal concludes that pursuant to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is not sufficient reason for determining that Mr Monteith's diabetes mellitus was war-caused. Accordingly, Mr Monteith is entitled to Disability Pension for diabetes mellitus with effect from 21 September 1999. The issue of assessment of the correct rate of disability pension for diabetes mellitus is remitted to the Repatriation Commission.

Post Traumatic Stress Disorder

177. The Tribunal must first establish the diagnoses of post traumatic stress disorder to its reasonable satisfaction. The diagnostic criteria contained within the Statement of Principles, Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 are taken from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"). Part of the complexity of dealing with entitlement for post traumatic stress disorder is that the criteria to establish the diagnosis of the condition to the Tribunal's reasonable satisfaction also forms part of the factor necessary to determine or establish a reasonable hypothesis. The use of the earlier Statement of Principles is required following the authority outlined in Repatriation Commission v Gorton (supra) which requires the application of the Statement of Principles in force at the time of the primary decision if there is some disadvantage to the Applicant by applying a later Statement of Principles.

178. Turning to the diagnostic criteria, the Tribunal accepts that Mr Monteith was exposed to a traumatic event in the form of a scare charge in which he experienced threatened severe injury and which invoked feelings of intense fear and helplessness. The Tribunal is thus satisfied that Statement of Principles diagnostic criteria 4(a)(i) and (ii) are satisfied. Considering diagnostic criteria 4(b) in terms of the traumatic event being persistently re-experienced, the Tribunal also is satisfied that Mr Monteith satisfies criteria 4(b)(ii) in that he experiences recurrent distressing dreams of the event. In relation to criteria 4(c), which deals with persistent avoidance of stimuli associated with the trauma, Mr Monteith must meet three of these criteria. While Mr Monteith asserts that he has markedly diminished interest or participation in significant activities and has feelings of detachment or estrangement from others and a restricted range of effect, his actions in being the Worshipful Master of the Mason Lodge and the Environment Officer for the 4-Wheel Drive Club in addition to working with the Police Boys Club, do not suggest any of the types of avoidance symptoms which are required. The psychiatrist supporting the diagnosis of post traumatic stress disorder did not seem to have been familiar with the various social and recreational activities in which Mr Monteith has been involved.

179. In terms of criteria 4(d), Mr Monteith does experience anger and has difficulty concentrating and with sleep. Satisfying the arousal symptoms diagnostic criteria cannot be enough however to allow a diagnosis of post traumatic stress disorder to be made by the Tribunal to its reasonable satisfaction when, on all of the evidence, the avoidance symptoms criteria are not met. It is understood by the Tribunal as opined by Dr Brown, that patients may not exhibit all of the symptoms of the diagnostic criteria of a particular condition and that this is possibly what has occurred with Mr Monteith. The Tribunal is however charged with a statutory responsibility of establishing a diagnosis within the framework of the Statement of Principles, if there is one. In this case, the Tribunal is of the view that Mr Monteith does not satisfy the diagnostic criteria of post traumatic stress disorder to the requisite level and hence with no diagnosis being established, the disorder cannot be considered to be war-caused.

Alcohol Abuse or Dependence

180. Having determined that post traumatic stress disorder is not the diagnosis of the psychiatric condition Mr Monteith suffers, the Tribunal turns to try to establish from the material it has, whether there is some other diagnosis which can be applied to his set of symptoms. This approach is required following the principles outlined in the Full Federal Court decision of Benjamin v Repatriation Commission (supra). In this regard, the Tribunal considers that it must examine whether or not the symptoms Mr Monteith suffers may indeed relate to a condition of alcohol dependence or abuse. This diagnosis has been accepted by the medical experts in this matter however, the issue of causation is contentious.

181. Associate Professor Mattick considers that Mr Monteith has mild alcohol dependence (Exhibit R2, p13). Dr Brown considers Mr Monteith has the condition of alcohol abuse (Exhibit A5), and similarly, Dr Samad and Dr Schultz (Exhibit R3) consider that Mr Monteith has alcohol abuse and alcohol dependence. The diagnostic criteria contained within the relevant and undisputed Statement of Principles, Instrument Number 5 of 1994, indicates that Mr Monteith has a maladaptive pattern of use of alcohol which is indicated by diagnostic criteria 4(a) where he has continued to use alcohol despite knowledge of having persistent or recurrent social, occupational, psychological or physical problems that are caused or have exacerbated by use of the substance. The preponderance of evidence from Mr Monteith and from medical and psychological opinion is that Mr Monteith has continued to drink when it is physically hazardous for him to do so. The consumption of alcohol has also impacted on Mr Monteith's relationship with his family. Thus the Tribunal is reasonably satisfied and so finds that a diagnosis of alcohol dependence is established.

182. Having established a diagnosis of alcohol dependence to the Tribunal's reasonable satisfaction, the Tribunal must determine whether or not this condition is linked to service. It is contended that the scare charge incident while Mr Monteith was serving in HMAS Sydney in Vietnam in 1971 has caused or materially contributed to Mr Monteith's alcohol dependence problem. The material points to Mr Monteith increasing his alcohol consumption after the USS Evans incident which occurred during a period of non-eligible service, with a further increase in alcohol consumption in Vietnam while serving in HMAS Sydney after the scare charge incident on Mr Monteith's first trip to Vietnam in 1971. The general hypothesis being put is not fanciful, illogical or beyond the realms of possibility.

183. The Tribunal turns then to consider subsection 120(3) of the Act to establish whether or not a reasonable hypothesis is raised consistent with a factor in the relevant Statement of Principles for psychoactive substance abuse or dependence. Factor 1(a) requires that Mr Monteith experienced a stressful event prior to the clinical onset of psychoactive substance abuse or dependence and the abuse or dependence is maintained post-service. A "stressful event" is defined as:

"...an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress"

184. The contention is that the scare charge was stressful to Mr Monteith. He experienced the loud sound whilst he was in the engine spaces. Mr Monteith feared for his life and fled to the outer decks, whereupon he then saw a deceased body floating past HMAS Sydney. Mr Monteith felt afraid, anxious and concerned for his physical well being. Later he experienced nightmares and he increased his drinking and smoking consumption. Further symptoms related to Mr Monteith not wanting to go back down into the boiler room nor go to sea on subsequent occasions. He also, from the Tribunal's reading of the material, had discipline problems following the 1971 trip to Vietnam. The Tribunal considers that the material points to Factor 1(a) being met and accordingly a reasonable hypothesis has been raised pursuant to subsection 120(3) of the Act. The Tribunal's task is then to find whether or not there are sufficient facts pursuant to subsection 120(1) of the Act to support the raised hypothesis.

185. The Respondent notes the varying details contained in the alcohol questionnaires and the shifting of emphasis by Mr Monteith from the causative influence of the USS Evans incident increasing Mr Monteith's alcohol consumption to the emphasis on service in Vietnam causing an increase in the alcohol consumption of the Veteran. Mr Monteith's increase in alcohol consumption following both the USS Evans incident and HMAS Sydney's service in Vietnam is attested to by Mr James in his Statutory Declaration. Mr Monteith's evidence is that he increased his drinking after the USS Evans incident and again following his 1971 trip to Vietnam in HMAS Sydney. Thus, the Tribunal notes Mr Monteith's evidence that he drank four to six large cans of beer each night, "wiping himself out" and by 1994 he was consuming four or five cans of beer in addition to spirits. In late 1997, Mr Monteith undertook detoxification at St John of God hospital as noted by Dr Samad. The Tribunal considers that whilst there are, as with the smoking history, inconsistencies in the material and oral evidence, it accepts that there was an overall exacerbation or aggravation of Mr Monteith's alcohol consumption materially contributed to by his service in Vietnam.

186. Considering the scare charge incident and sighting of the deceased body as a stressful event, it is clear from Mr Tilbrook's report (Exhibit R6) that Operation Awkward measures were adopted when Australian ships were at anchor in hostile waters in Vietnam. These measures were adopted at various times and resulted in various states of alert. It is also confirmed by historical records and contemporaneous accounts that when at anchor, the engines were kept in a state of readiness in case there was a need to leave the area quickly because of threat of conflict. The Tribunal accepts that any noise heard above the engine noises would be very loud and significant. Furthermore, the fact that the fuel and water tanks were half-empty by the time HMAS Sydney arrived at Vung Tau, would have caused the noise to be exaggerated. This is attested to by the comments from Lieutenant Commander Fitzgerald and Commodore Helyer. Whether or not Mr Monteith knew about the scare charges as a general proposition is difficult to say. There is significant evidence that it was notoriously difficult to ensure stokers received information. Even if Mr Monteith did know that scare charges were released from time to time and was aware of Operation Awkward, it is clear from the evidence that the dropping of scare charges was random and even if Mr Monteith did have some general knowledge of such activities, he was not in a position to know precisely when the charge was to be detonated. As Mr Tilbrook reported, it was not possible for sailors below deck to anticipate the precise moment of explosion of a percussion grenade. Furthermore, any announcement made over the ship's loud speaker system in the engine room spaces has also been confirmed as possibly not being heard by the stokers working in those engine room spaces. In this regard, Mr Tilbrook further noted that:

"It is accepted that sailors were posted at all times on duty watch below deck in the heart of the ship, and would have been at duty stations when "scare charges" were thrown. It is "possible" that those working in noisy spaces may not have clearly heard the piped announcements concerning the imminent dropping of percussion grenades (Exhibit R6, p9)".

187. It is also clear from the evidence of Lieutenant Commander Fitzgerald (Exhibit R8, Attachment 1) and Commodore Helyer (Exhibit R7, Attachment 3) that a body dressed in military type uniform was seen floating past HMAS Sydney when she was at anchor in Vung Tau. Furthermore, as Mr Monteith was on board HMAS Sydney at this time, it was likely that Mr Monteith witnessed this body, Commodore Mulcare opined, having considered the evidence from Lieutenant Commander Fitzgerald and Commodore Helyer. Commodore Helyer noted that it was a ploy of Viet Kong to "booby trap" bodies with explosives and use them as floating mines. Commodore Helyer believed that the body was escorted away from HMAS Sydney and then blown up. As the ship's Diving Officer, Lieutenant Commander Fitzgerald noted however that it was after a period of using scare charges when HMAS Sydney was at anchor at Vung Tau Harbour, that a body came to the surface upstream of HMAS Sydney and he inspected the body. Lieutenant Commander Fitzgerald stated that there were no explosives on the body but it was dressed in military uniform.

188. Thus the undisputed evidence is that a body did float past HMAS Sydney after a period of the use of scare charges when HMAS Sydney was at anchor. While Mr Monteith could not recall whether HMAS Sydney was tied up or not when he saw the body, his description of the idle engines is consistent with the ship being at anchor, but at the ready if the need arose to leave quickly. Certainly the body was seen when HMAS Sydney was at anchor and Mr Monteith reported seeing it after he abruptly left the engine spaces following hearing an explosion. The Tribunal finds that Mr Monteith experienced stress as a result of the explosion whilst he was in the machine spaces and that this was compounded by him immediately seeing the body when he went up on deck. Mr Monteith reports he had increased his drinking and smoking after this incident. The Tribunal finds that Mr Monteith's individual reaction to the circumstances indicates that he experienced a stressful event which lead him to increase his alcohol consumption materially contributed to by that service in Vietnam. Mr Monteith increased his level of alcohol consumption and continued drinking at a high level over the years consistent with what he has reported and has been reported by medical and psychological experts. The fact that Mr Monteith increased his alcohol consumption after USS Evans cannot detract in the Tribunal's view, from there being a further increase in alcohol consumption after Vietnam. There are not sufficient facts to disprove this sequence of events nor Mr Monteith's reaction and symptoms as a result of the stress.

189. Again, there are variations in the drinking history but on Mr Monteith's evidence and Mr James' Statutory Declaration, the minor doubts the Tribunal has are not sufficient to allow it to decide against Mr Monteith so as to preclude the reasonable hypothesis beyond reasonable doubt.

190. The Tribunal is accordingly satisfied that the facts supporting the reasonable hypothesis are not disproved beyond reasonable doubt and thus, pursuant to subsection 120(1) of the Act, there is not sufficient ground to determine other than that Mr Monteith's condition of alcohol dependence is war-caused. Accordingly, Mr Monteith is entitled to Disability Pension for the condition of alcohol dependence with effect from and including 11 April 1997. The matter of the assessment of the condition is remitted to the Repatriation Commission.

Hypertension

191. The Tribunal is reasonably satisfied that Mr Monteith has a condition correctly diagnosed as hypertension meeting the diagnostic criteria contained within the agreed Statement of Principles, Instrument Number 25 of 1999. In this regard, the Tribunal notes Dr Chow's report dated 15 January 1997 (T10, Bundle 1, p60) and Dr Chia's report of 16 October 1999 (T20, Bundle 1, p104). The onset of hypertension is noted by Dr Chia to be May 1997 (T20, Bundle 1, p98).

192. The general hypothesis being put is that alcohol dependence involving the consumption of 200 grams per week of alcohol at the time of the onset of hypertension which the Tribunal is reasonably satisfied occurred in May 1997 (Factor 5(b)). It was in 1997 that Mr Monteith entered detoxification at St. John of God Hospital. Mr Monteith was drinking four or five bottles of home brew beer per day at that time. Associate Professor Mattick noted that Mr Monteith satisfied the requirement for alcohol abuse ingesting 200 grams of alcohol per week or ten grams per standard drink that requirement being 20 standard drinks per week. Mr Monteith's alcohol consumption on the material available to the Tribunal would meet this and furthermore, material suggests that doctors considered he qualified for a diagnosis of either alcohol dependence or abuse. The Tribunal notes Dr Samad's clinical notes and a report of 7 October 1997 which reports that Mr Monteith was "successfully detoxed" in hospital (Exhibit A9, p13). Furthermore, notes of Dr Samad in Exhibit A10 indicate alcohol consumption at an abusive level in August 1997.

193. Of course it is difficult to arrive at a precise appreciation of the quantity of alcohol consumed by Mr Monteith but the material certainly points to detoxification in October 1997 which further supports the criteria required for alcohol dependence or abuse. In such circumstances, the Tribunal is of the view that the requirements of Factor 5(b) are met and thus the material raises a reasonable hypothesis within the requirements of subsection 120(3) of the Act. Accordingly, the Tribunal now considers the application of subsection 120(1) of the Act to determine whether it can accept sufficient of the facts as are necessary to support this raised hypothesis.

194. As the Tribunal has noted previously, there are inconsistencies in the evidence concerning matters such as alcohol and tobacco consumption. The Tribunal has already accepted that Mr Monteith has a war-caused alcohol dependence condition. In terms of there being alcohol dependence to the level of at least 200 grams of alcohol per week at the time of accurate determination of hypertension, which in this case is in May 1997, the Tribunal relies on the evidence at hearing provided by Mr Monteith, supported by the Statutory Declaration of Mr James and the medical reports and opinions contained within the material. Considering the report of Associate Professor Mattick, who while finding it difficult to believe Mr Monteith, accepts that there is alcohol dependence but not causally related to Mr Monteith's service, the Tribunal must make its determination based on an appreciation of all of the evidence and material and applying the law to the requisite standard of proof. Associate Professor Mattick decided that he could not believe Mr Monteith. The Tribunal very carefully considered all the material. The standard of proof required is that the Tribunal must be satisfied beyond reasonable doubt, that there are sufficient facts in the material which point to the reasonable hypothesis and which have not, despite some doubts, been disproved.

195. The Tribunal has already noted that it is difficult in such matters to deal with events which occurred on service some 30 or more years ago. In terms of the clinical onset of conditions such as hypertension, and trying to assess at the precise time of onset, what level of alcohol has been consumed, requires a complex responsibility on decision-makers. In making administrative decisions about such matters, while applying the requisite standard of proof, the Tribunal considers that its task should allow a realistic and practical interpretation of the material. In all of the circumstances, the Tribunal finds that pursuant to subsection 120(1) of the Act, while there are some doubts which have been pointed to by the Respondent and by various experts, these doubts do not allow the Tribunal to determine other than it is not satisfied beyond reasonable doubt that there is no sufficient reason for deciding that Mr Monteith has a war-caused disability of hypertension and is qualified to receive a Disability Pension for that condition with effect from and including 17 June 1997. The assessment of that condition is remitted to the Repatriation Commission.

196. In conclusion, for all of the reasons set out above and considering all of the evidence, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 to:

(ii) The decision under review in relation to post traumatic stress disorder is affirmed.

I certify that the 196 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member

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

Associate

Dates of Hearing 11,12 and 15 February 2002; 22 and 23 July 2002; 24 September 2002

Date of Decision 11 April 2003

Counsel for the Applicant Mr N Dawson

Solicitor for the Applicant Ms J Buss, Legal Aid Commission of NSW

Counsel for the Respondent Miss R Henderson

Solicitor for the Respondent Ms Angela Nanson, Australian Government Solicitor

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