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Administrative Appeals Tribunal of Australia |
Last Updated: 23 May 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
SYDNEY JAMES MEEHAN |
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And |
REPATRIATION COMMISSION |
Tribunal |
Mr M J Sassella, Senior Member Dr M E C Thorpe, Member |
Decision
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The tribunal affirms the decision under review as varied by the Veterans' Review Board. |
[SGD] M. J. Sassella
Senior Member
VETERANS' ENTITLEMENTS - Disability Pension - generalised anxiety disorder - whether disease war-caused - whether disease had clinical onset within two years of experiencing a stressful event - meaning of "clinical onset" - meaning of "stressful event" - material to be considered in forming opinion whether reasonable hypothesis exists
Veterans' Entitlements Act 1986 ss 20(1), 120(1), (3), 120A(3), 196B
Statement of Principles 1/2000 concerning anxiety disorder
Statement of Principles 48/94 as amended by 275/95 concerning generalised anxiety disorder
Bey, Repatriation Commission v (1997) 79 FCR 365
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cornelius v Repatriation Commission [2002] FCA 750
Deledio, Repatriation Commission v (1998) 49 ALD 193
East v Repatriation Commission (1987) 12 ALD 389
Gorton, Repatriation Commission v (2001) 33 AAR 370
Gosewinckel, Repatriation Commission v (1999) 59 ALD 690
Lees v Repatriation Commission [2002] FCAFC 398
Meehan and Repatriation Commission, Re [2000] AATA 987
Meehan and Repatriation Commission, Re [2002] AATA 273
Meehan v Repatriation Commission (2001) 64 ALD 366
Meehan v Repatriation Commission (2002) 35 AAR 353
O'Neil v Repatriation Commission (2001) 34 AAR 290
Owens, Repatriation Commission v (1996) 70 ALJR 904
Williams, Repatriation Commission v [2001] FCA 1195.
9 May 2003 |
Mr M J Sassella, Senior Member Dr M E C Thorpe, Member |
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APPLICATION
1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by James Sydney Meehan ("the applicant"), born 24 February 1952 (AB1/13), for review of a decision by a delegate of the Repatriation Commission ("the respondent"). That decision was made on 3 June 1996 (AB1/T2) and involved, among other things, rejection of a claim by the applicant for Disability Pension in respect of the disease of post traumatic stress disorder he was said to be suffering. A Disability Pension is paid pursuant to Part II of the Veterans' Entitlements Act 1986 ("the Act")[1]. That part of the decision was affirmed by the Veterans' Review Board ("the VRB") on 16 March 1999 (AB1/T31).
2. Mr Meehan is in receipt of a Disability Pension paid at 20% of the general rate in respect of bilateral sensorineural hearing loss with tinnitus (TD1/1A).
3. This application has reached the current tribunal by a circuitous route. The tribunal initially affirmed the decision under review on 14 November 2000 in Re Meehan and Repatriation Commission [2000] AATA 987. The applicant appealed that decision to the Federal Court of Australia.
* On 25 May 2001 Wilcox J in that court handed down a decision in Meehan v Repatriation Commission (2001) 64 ALD 366. Wilcox J set aside the tribunal's decision and remitted it to the tribunal for decision according to law. The full Federal Court amended the terms of that remittal on 12 November 2001 (AB1/194) limiting them to the issue of whether Mr Meehan's disease of generalised anxiety disorder was war-caused.
* On 22 April 2002 the tribunal published a decision, Re Meehan and Repatriation Commission [2002] AATA 273, in which it decided that Mr Meehan's generalised anxiety disorder was not a war-caused disease. The applicant appealed that decision to the Federal Court which upheld the appeal (Meehan v Repatriation Commission (2002) 35 AAR 353) and remitted the matter to the tribunal for decision according to law. That is how the tribunal, as currently constituted, became seized of the matter.
HEARING
4. The tribunal convened a hearing in this matter in Sydney on 12 February 2003. Mr Meehan was represented by Mr C Colborne of counsel. The Repatriation Commission was represented by Miss R Henderson of counsel. The hearing proceeded by way of submissions drawing on the evidence from the previous hearings. The tribunal also had access to the following documents which were taken into evidence and received as exhibits:
Exhibit AB1 - Appeal book for Federal Court of Australia appeal no N457 of 2002 (including exhibits T1 - T47).
Exhibit TD1 - Section 37 Statement (including exhibits T1 - T47) provided by the respondent for application N1999/861.
Exhibit TD2 - "Amended" Section 37 Statement provided by the respondent for application N1999/861.
Exhibit TS1 - Transcript of evidence of Kay Merilyn Meehan, 11 October 2000.
Exhibit A1 - Applicant's statement of facts and contentions, 3 February 2003.
Exhibit A2 - Applicant's further facts and contentions, 12 February 2003.
Exhibit A3 - Department of Defence statement of applicant's service, 30 June 2000.
Exhibit R1 - Respondent's statement of facts and contentions, 11 February 2002.
Exhibit R2 - Report by Commodore P M Mulcare, 2 August 2000.
Exhibit R3 - Report by Associate Professor J Grey, 7 January 2000.
Exhibit R4 - Report by Dr M Burns (occupational physician), 16 October 1999.
UNCONTROVERSIAL FINDINGS
5. The tribunal makes the following uncontroversial findings.
6. The applicant served in the navy from 3 January 1968 until 2 January 1980 and rendered operational service from 8 to 25 February and 8 to 30 May 1969 (ex A3).
7. The applicant lodged a valid claim on 6 October 1995 (AB1/T3E).
8. The date of effect of any decision favourable to the applicant would be 6 July 1995 (s 20(1) of the Act).
9. The standard of proof in relation to whether his generalised anxiety disorder is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act).
10. The Statement of Principles ("SoP") issued by the Repatriation Medical Authority in accordance with s 196B of the Act relevant to the determination of this matter is, prima facie, SoP 1/2000[2] concerning anxiety disorder. If the hypothesis fails in relation to the 2000 SoP then the SoP in force at the time of the primary decision (3 June 1996), SoP 48/94[3] as amended by SoP 275/95[4] can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
HYPOTHESIS
11. As put by Mr Colborne, the hypothesis was that Mr Meehan experienced an occurrence on operational service which evoked feelings of anxiety or stress (ex A1/7). Mr Colborne helpfully listed "facts" which, if true, supported the hypothesis. These were:
* being in a war zone;
* being sentry on the Sydney in the dark;
* being a sentry on landing craft;
* hearing scare charges explode; and
* transporting troops to and from Vietnam (ex A1/7).
12. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
13. The first step is to consider whether the material before the tribunal points to a hypothesis connecting an injury or disease with the circumstances of the particular service rendered by the applicant. The tribunal refers to paragraph 11 above in which such a hypothesis was identified.
14. The second step is to ascertain whether there is a relevant SoP in force. The tribunal addressed this requirement in paragraph 10 above. This step normally requires the identification of a disease or diseases or an injury or injuries that may be in contention but the tribunal has been spared that exercise on this occasion as generalised anxiety disorder has been identified as the relevant disease as a matter of law by the Federal Court.
WHETHER HYPOTHESIS IS A REASONABLE HYPOTHESIS
15. The third step is to form an opinion as to whether the hypothesis raised is reasonable. 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.
16. It was this inquiry which produced significant disagreement between the parties' representatives at the hearing. That disagreement revolved around the requirement that a decision-maker must consider all of the material in deciding whether a hypothesis is fanciful, impossible, incredible, too remote or too tenuous. The issue was whether facts asserted that appear untrue can be used to render a hypothesis vulnerable, especially as being too tenuous. The tribunal will consider this issue fully below.
17. At this point the tribunal considers what is available by way of "raised facts" to support the suggested hypothesis.
18. Central is the SoP on generalised anxiety disorder. The current SoP on anxiety disorder and that in force on generalised anxiety disorder at the time of the primary decision appear to the tribunal to impose similar requirements, however the applicant's case was advanced using the earlier SoP and the respondent was prepared to argue on that basis. As noted earlier, if the earlier SoP is advantageous to the veteran then the veteran can be extended that advantage. Given that setting, for the sake of simplicity, the tribunal will utilise SoP 48/94 as amended by SoP 275/95 is ascertaining whether the hypothesis meets the SoP template.
19. The relevant factors in SoP 48/94 are factors 1(b) and (c):
(b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or
(c) experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder; or
20. The definition of "stressful event" is "an occurrence which evokes feelings of anxiety or stress" (clause 4).
21. Thus, what the tribunal must assess is whether the hypothesis suggests that the veteran experienced an occurrence evoking feelings of anxiety or stress not more than two years before the clinical onset or worsening of the veteran's generalised anxiety disorder.
22. The hypothesis clearly posits that Mr Meehan experienced an event evoking feelings of anxiety or stress. As Mr Colborne, for Mr Meehan, said in ex A1/5, "Before the Tribunal as previously constituted, the Commission conceded that being a person who goes to Vietnam does mean that you are exposed to a stressful event" (AB1/254). This is borne out in the Appeal Book. However, as Mr Colborne also said, the issue was whether there was material that pointed to Mr Meehan experiencing an occurrence during his operational service that evoked feelings of anxiety or stress in him. The need for a veteran to have experienced personally these feelings is borne out in the decision of the Federal Court in O'Neil v Repatriation Commission (2001) 34 AAR 290. Mr Colborne proceeded to refer to the following material:
* In his claim form (AB1/T3E) the applicant referred to constant vigilance and awareness as a problem (folio 15). Dr Altman also quoted Mr Meehan as stating that he found waiting for something to happen and the tension all the time to be stressful (TD1/T34).
* The applicant told the VRB that he was scared the whole time and had feared enemy divers and had watched the sweeps around the ship with trepidation (AB1/T31/40).
* The applicant told Dr K Akkerman, a psychiatrist, that the worst things that happened in Vietnam were that he had to go in a landing craft and had to sit in front with a rifle, scare charges were exploding, being on watch at night when it was pitch dark and never knowing what was going on (AB1/T27/33-34).
* Dr Dinnen stated that Mr Meehan said he felt nervous as the ship sailed towards Vietnam and felt fear in Vietnam when a sentry on the upper deck because he might miss something (AB1/263). Dr Dinnen identified as stressful events for Mr Meehan scare charges exploding and seeing young soldiers going up to Vietnam and weary veterans returning (AB1/221). He regarded Mr Meehan as giving a consistent account of being apprehensive and terrified and frightened when in Vietnam (AB1/226).
* The applicant told the tribunal that at different times he was an upper deck sentry when the HMAS Sydney was going into Vung Tau Harbour and he had to keep watch for divers and debris, armed with an SLR rifle. He said it was very scary, the ship was blacked out, there was no noise (AB1/57). He said he was looking for things in the dark as they steamed to their anchorage (AB1/211).
* In Vung Tau Harbour Mr Meehan said he was a bow-man on landing craft, armed with a pistol. He said he found these duties very frightening because he did not know what to expect and was young and afraid (AB1/57).
* Mr Meehan told the tribunal that when he went off watch and took a shower, a meal and tried to sleep scare charges were exploded. These he found loud and terrifying. He explained that his mess was below the water line (AB1/59).
23. Mr Colborne summarised that this material pointed to the raised facts in paragraph 11 above.
24. The tribunal considered that the material supported a reasonable argument that the SoP requirement for experiencing a stressful event was met on the raised facts. However, a particular problem in cases of generalised anxiety disorder is that the SoP, in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995) ("DSM-IV"), requires the existence of a wide array of signs and symptoms before it can be said that a person suffers from generalised anxiety disorder. From SoP 48/94, clause 4, these are:
(a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i) the person finds difficult to control; and
(ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:
(A) restlessness or feeling keyed up or on edge;
(B) being easily fatigued;
(C) concentration difficulties or mind going blank;
(D) irritability;
(E) muscle tension;
(F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and
(iii) the focus of which is not confined to features of an Axis I disorder,
for example, it is not about:
(A) having a Panic Attack (as in Panic Disorder); or
(B) being embarrassed in public (as in Social Phobia); or
(C) being contaminated (as in Obsessive-Compulsive Disorder); or
(D) being away from home or close relatives (as in Separation Anxiety Disorder); or
(E) gaining weight (as in Anorexia Nervosa); or
(F) having multiple physical complaints (as in Somatization Disorder); or
(G) having a serious illness (as in Hypochondriasis); and
(iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and
(v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(b) which is not due to the direct physiological effects of:
(i) a drug of abuse; or
(ii) a medication; or
(iii) a general medial condition (such as hyperthyroidism); and
(c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
25. How this description of generalised anxiety disorder is to operate is clearly established from such Federal Court authority as Repatriation Commission v Gosewinckel (1999) 59 ALD 690, 704-705, paragraphs 63-64, 67-68, and Lees v Repatriation Commission [2002] FCAFC 398 at paragraphs 15-16 where a full court said:
"15 Counsel for the appellant submitted that in relation to a disease of gradual onset, which might include generalised anxiety disorder, one should approach the question of clinical onset within the two year period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself. It was submitted that this aspect of the applicable Statement of Principles was not directed to diagnosis but only causation.
"16 However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of `generalised anxiety disorder' does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression `clinical onset'".
26. Mr Colborne sought to meet this issue in ex A2. His central submission was that the full array of symptoms for generalised anxiety disorder need not be exhibited for generalised anxiety disorder to be taken to be present where some symptoms are masked by the veteran's self-medication through over-indulging in alcohol. He said, for example, "Lees is clearly distinguishable from Mr Meehan's case. The expert evidence there was that Mr Lees increased his alcohol consumption considerably to try and control [his] symptoms [see Lees at 19]. The evidence was not that the condition was present but the symptoms were masked and effectively treated by alcohol consumption" (AB1/82-84, 87) (emphasis was Mr Colborne's). He said that the effect of Dr Dinnen's evidence was that the obvious symptoms of generalised anxiety disorder which he found Mr Meehan to be suffering (AB1/83) would have been present within two years of the stressors, if Mr Meehan had not self-medicated with alcohol.
27. This is an interesting but uncertain argument. He tribunal is not convinced that it sits consistently with the earlier authority on the meaning of "clinical onset".. This is well described by the full court in Lees (above) at paragraph 13:
"13 The first ground raises for consideration the meaning of the expression `clinical onset' in SoP1. It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. In that matter a veteran had engaged in repetitive work maintaining small arms and subsequently developed carpal tunnel syndrome. The relevant Statement of Principles provided that the clinical onset of the carpal tunnel syndrome had to be no more than 30 days after the repetitive work ceased. Her Honour said at [26]:
`Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...."
By inference the Tribunal rejected the view of `clinical onset' taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression `clinical onset' in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook's opinion that "[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993" (see [8] above) may be disregarded.'
The opinion her Honour was referring to in the first sentence concerned whether the Tribunal was satisfied the material before it pointed to the relevant repetitive activities not having ceased more than thirty days before the clinical onset of the respondent's carpal tunnel syndrome."
28. The difficulty is whether there was enough in the available material for Dr Dinnen to be able to state in a way that was not fanciful, impossible, incredible, too remote or too tenuous that there were reportable symptoms sufficient to satisfy the requirements for generalised anxiety disorder.
29. Mr Colborne, however, attempted to assist the tribunal, again in ex A2, by stating that, in any event, there was material before the tribunal pointing to Mr Meehan having sufficient symptomatology, despite the alcohol, for him to satisfy the criteria in the SoP. His arguments took the following form:
* As regards the requirement in (a)(i), "excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which: the person finds difficult to control", he wrote that a measure of the regularity of Mr Meehan's anxiety was his drinking because there was evidence that from the time of his operational service he drank whenever he could out of fear, to quell self-doubt, to relax and help day to day living (TD1/T5; AB1/60, 163). This was said to point to excessive worry on a more or less daily basis that he could control only by drinking. Mr Colborne referred also to Dr Dinnen's evidence that Mr Meehan's drinking became worse after Vietnam so the anxiety and heavy drinking were established as worse within 2 years of the operational service (AB1/83).
* As regards the requirement in (a)(ii), "excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months: (A) restlessness or feeling keyed up or on edge; (B) being easily fatigued; (C) concentration difficulties or mind going blank; (D) irritability; (E) muscle tension; (F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)", Mr Colborne addressed (A), (D), (E) and (F). In relation to (A), he pointed to Mr Meehan's feeling the need to drink to relax whenever he could (TD1/T5) and to Mr Meehan's startle reaction and vigilance which Mr Meehan thought started in Vietnam (AB1/62). These were said to indicate Mr Meehan was "keyed up or on edge" In relation to (D), "irritability", Mr Colborne pointed out that following Vietnam Mr Meehan became aggressive (AB1/61) and that Mr Meehan's first marriage ended in about 1972 because Mr Meehan and his wife were always arguing (TD1/T3/14). This was said to point to Mr Meehan being irritable, meaning excitable to impatience or anger (Macquarie Dictionary), more often than not. In relation to (E), "muscle tension", Mr Colborne pointed to Mr Meehan telling Dr Dinnen that after his first trip to Vietnam his stomach "seemed to go" all the time (AB1/164). This was said to show him as suffering from muscle tension. In relation to (F), "sleep disturbance", Mr Meehan had said that coming back from one of the trips he went from being able to sleep a full night to living on a couple of hours sleep at night (AB1/61). He said he could sleep only when he drank (AB1/163). Dr Dinnen regarded Mr Meehan's inability to sleep as consistent with an anxiety state (AB1/220).
30. Miss Henderson had a number of ready arguments against these submissions. First, she submitted that one cannot infer from alcohol consumption that a veteran suffers anxiety on a regular basis. The tribunal takes this to be an inference that might be made if there is material pointing directly to a link. Second, she submitted that there was no medical support for Mr Colborne's suggestion that a "stomach seem[ing] to go all the time" amounted to muscle tension. Third, Miss Henderson submitted that, as regards Mr Meehan's sleeping, he was always a light sleeper (per Dr M Richardson, psychiatrist, 13 March 1996, AB1/T6).
31. Miss Henderson's other submissions went to the matter of what material the tribunal could and should consider at the point of step 3 of the Deledio (above) analysis. Deledio (above) operates on the assumption that the SoP regime has not altered the underlying principles relating to the interaction between s 120(1) and (3) of the Act. The tribunal has, therefore, considered the remarks of the High Court in the leading cases on s 120. In the extracts from the judgments in those cases (that appear below) the reader's attention is drawn to the passages that have been underlined by the tribunal as these have influenced the tribunal to take the approach it does in paragraph 37 below. Section 120(1) and (3) is as follows:
Standard of proof
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
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
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
32. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court (Mason CJ, Deane and McHugh JJ) said at pages 413-414, 416:
"Notwithstanding the submission of counsel for the Commission, s.120(3) is not exhaustive of the content of s.120(1). Sub-section (3) is concerned with whether `the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact.. The purpose of sub-s.(3), as demonstrated by its terms and its history, is to ensure that a claim to which s.120 applies is not met unless there is some material which raises the relevant causal hypothesis. Its principal purpose is to overcome the effect of the judgment of this Court in Repatriation Commission v. O'Brien ((1) (1985) 155 CLR 422, at pp 433-434) where the majority held that it was not the law that the Commission must be satisfied that there were insufficient grounds to support the claim if the material in the case did not `provide some positive inference in favour of the requisite connexion between death or incapacity and war service' The Explanatory Memorandum to the Bill which became the Veterans' Entitlements Act stated:
`Sub-clause 119(3) (i.e. s.120(3)) will negate the effect of the 1985 decision of the High Court of Australia in Repatriation Commission v. O'Brien.. A pension will not be payable in circumstances where the evidence does not provide some positive inference in favour of a connection between the injury, disease or death and the veteran's or member's particular service. The sub-clause will require the Commission to refuse the claim where, at the end of the Commission's consideration of the material before it, no reasonable hypothesis that there is such a connection has been raised, and if raised, no such reasonable hypothesis remains.'
"An addition to the Explanatory Memorandum stated:
`It is intended under sub-clause 119(3) that there must be some material before a determining authority for it to make a judgement on whether it is satisfied beyond reasonable doubt that there is no sufficient ground to grant a claim.'
"The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (`the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in The Commissioner for Government Transport v. Adamcik ((2) (1961) 106 CLR 292), this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly 20 years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said ((3) ibid., at p 306):
`The most that could be urged against Doctor Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.'
"However, a hypothesis cannot be reasonable if it is `contrary to proved scientific facts or to the known phenomena of nature'((4) ibid.). Nor can it be reasonable if it is `obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'((5) East v. Repatriation Commission (1987) 74 ALR 518, at p 533).
"But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
...
"The Commission will be satisfied beyond reasonable doubt `that there is no sufficient ground for making (the) determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s.120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, `beyond reasonable doubt, that there is no sufficient ground for making the determination' even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s.120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist ((7) cf. Barca v. The Queen (1975) 133 CLR 82, at p 105)."
33. In Byrnes v Repatriation Commission (1993) 177 CLR 564, 569-572 Mason CJ, Gaudron and McHugh JJ, in the High Court said:
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell ((4) ibid, at p.414, Mason CJ, Deane and McHugh JJ said:
`(A) hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature ((5) Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292, at p 306.)". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" ((6) East v. Repatriation Commission (1987) 16 FCR 517, at p 532.).'
In some cases, the hypothesis may assume the occurrence or existence of a `fact'.. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
"Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved ((7) Bushell (1992) 175 CLR, at p.416), either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis are not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis ((8) ibid, per Brennan J at p.427.).
"The passages in the joint judgment in Bushell that indicate that once the `raised facts' raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved ((9) (1992) 175 CLR, at pp.414, 415-416.) should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s.120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered `the whole of the material' bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that `the factual foundation upon which the hypothesis can operate does not exist' ((10) ibid, per Mason CJ, Deane and McHugh JJ at p.416; see also per Brennan J at p.427.).
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
"...
"As a matter of law and not merely of fact, once a reasonable hypothesis was raised the Commission was bound to find in favour of the appellant unless it was satisfied beyond reasonable doubt of at least one of two matters. First, that the appellant had not suffered injury of such severity to set in train a process which could cause spondylosis. Secondly, that the evidence of Dr Rowden concerning the hypothesis and the evidence of Dr Whitty that there was a 20 to 1 chance of it being correct were unacceptable. Only if one or other of these matters were negatived to the required standard of proof would it be open to the Commission to conclude that the injury was not war-caused. Although nothing in s.120 (see s.120(6)) imposes on any person any onus of proving any matter relevant to a determination under that section, the Commission, as a matter of law, could not be `satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination' (s.120(1)) unless it was satisfied as to one or other of these matters."
34. The judgment of Brennan CJ and Gaudron and Gummow JJ in a failed application for special leave to appeal in Repatriation Commission v Owens (1996) 70 ALJR 904, 904-905 contained the following:
"A majority of the Full Court [of the Federal Court] allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals tribunal.
"Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of ss 120A and 120B by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal.
"The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case."
35. The Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364, 366-367 (Northrop, Sundberg, Marshall and Merkel JJ) said as follows in relation to
s 120 in a non-SoP context:
"The method of applying s 120 (1) and (3) is now well established:
1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the `raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
"In some cases the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable: Byrnes (at CLR 570) and Critch v Repatriation Commission (1996) 43 ALD 574; at 577."
36. Miss Henderson relied on East v Repatriation Commission (1987) 12 ALD 389 (full Federal Court) to argue that, in deciding whether an hypothesis is reasonable, the tribunal is required to consider whether it is too tenuous. The comments of the court in that case are instructive. From pages 403-404 come the following passages:
"The adoption of Brennan J's notion of a reasonable hypothesis meant that parliament was requiring something by way of causal link, but which fell short of proof of the link, even prima facie, as a fact. The meaning of the phrase `reasonable hypothesis' was felicitously explained by a Veterans' Review Board in Stacey (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:
`A hypothesis may be conveniently defined as: "proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption": The Concise Oxford Dictionary...
`The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.'
"We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
37. Pausing at this point, the tribunal understands the preponderance of this earlier authority to stand for the proposition that a hypothesis is reasonable if supported by some or all of the raised facts. The raised facts are to be assumed to be true at this point unless contradicted by known scientific fact or because of some other fundamental problem. The hypothesis can in such a case be regarded as fanciful, impossible, incredible, too remote or too tenuous. However, It seems doubtful that raised facts can be displaced merely because of credibility problems on the part of any person sponsoring or advancing the raised facts. The correct way of dealing with credibility issues appears to be in step 4 of Deledio (above) where such doubts are effective only where they tend to disprove a raised fact beyond a reasonable doubt. The courts have tended to criticise what may seem to be fact finding, eg as regards whether raised facts are in fact true, at step 3 of the Deledio (above) process because it exposes the veteran to failure of his or her hypothesis at the level of balance of probabilities rather than according the veteran the benefit of disproof beyond a reasonable doubt as provided for in Deledio (above) step 4 and in s 120(1) of the Act.
38. Miss Henderson submitted that the hypothesis in the present case was too tenuous, especially in relation to the clinical onset of generalised anxiety disorder. The hypothesis depended overly on the reliability of Mr Meehan's accounts of his experiences and reactions. Miss Henderson submitted that Mr Meehan has a personality disorder that affects the reliability of his statements (Dr Dinnen, AB1/92-93, 228; Dr Walden, AB1/131-132). He has a poor memory which he thinks arose from his alcohol consumption (Mr Meehan, AB1/203). Mr Meehan is prone to accept suggestion when interviewed by psychiatrists (Dr Walden, AB1/189).
39. Miss Henderson submitted that, when the whole of the material is considered, it is clear that Mr Meehan's memory is very seriously flawed. She offered multiple examples:
(a) He wrongly thought he was in Vietnam during the Tet Offensive (Dr Dinnen, AB1/169; Mr Meehan's oral evidence, AB1/70).
(b) He thought he had been to Vietnam five times whereas he went only twice (Mr Meehan's oral evidence, AB1/70; Mr Meehan's statement, AB1/162; Dr Walden, AB1/183; Dr M Burns, ex R4).
(c) He thought he was in Vietnam for five months whereas he was in Vung Tau Harbour on two occasions for only 5 ½ hours on each occasion (Dr Altman, AB1/T10; ex R2/2).
(d) He thought he had seen people being killed and injured whereas he had seen no such thing (Dr Altman, AB1/T10 and 165).
(e) He incorrectly thought he had transported body bags (citations as for (d)).
(f) He thought he was part of a group of three clearance divers who checked the hull of the HMAS Sydney below the water line whereas he performed no such function (TD1/T24/78, T31/94; Dr Altman, AB1/T10 and 165; Mr Meehan's oral evidence, AB1/102).
(g) He thought he had been a sentry in the bow of a landing craft in Vung Tau Harbour at night whereas his ship had been in Vung Tau Harbour only in daylight (Dr Dinnen, AB1/168; ex R2/2 - the ship was in Vung Tau Harbour from 7.00 am to 12.25 pm on one trip and from 6.55 am to 12.25 pm on the second trip).
(h) He thought he heard scare charges in Vung Tau Harbour at night while in his bunk when in fact he was never in Vung Tau Harbour at night (TD1/T24/78; AB1/162, Dr Dinnen, AB1/169).
40. Based on Cornelius (cited in paragraph 27 above), Miss Henderson submitted that clinical onset occurs when there is material which points to some feature or symptom which enables a medical practitioner to say that the veteran had generalised anxiety disorder at a particular time. Miss Henderson referred to the signs and symptoms of generalised anxiety disorder cited by Dr Dinnen, the expert heavily relied on by Mr Colborne in this context. These were sleeping on duty on one occasion (TD2/12.2) and enuresis (AB1/83). These relate to events occurring in 1972 and 1973 (TD2/12.1) respectively. The visits to Vung Tau Harbour occurred in 1969. Thus, even if illustrative of generalised anxiety disorder, these signs or symptoms did not manifest early enough, on the available material, to satisfy the SoP requirements. Further, as Miss Henderson noted, at AB1/89 Dr Dinnen conceded that these signs were consistent also with Mr Meehan suffering from alcoholism.
41. While Miss Henderson has mounted a formidable case against there being material supporting the presence of generalised anxiety disorder within two years of Mr Meehan experiencing a stressful event, the tribunal must consider the later material from Dr Dinnen in which he revised an earlier set of opinions and concluded in favour of Mr Meehan developing a generalised anxiety disorder within two years of experiencing a stressful event.
42. On 15 March 2002 Dr Dinnen wrote a new report (AB1/262) after re-examining Mr Meehan on 8 March 2002. The major matters in that report were:
* In his history the applicant recalled no medical or behavioural problems in his school years.
* The only time, according to Mr Meehan, when he felt afraid in school years was when he accidentally put a snake down his shirt while picking mandarins in Cooma.
* Prior to entering the navy he had consumed only three glasses of beer in an entire lifetime.
* Mr Meehan had said that when the family lived in Scotts Head, which was when he was in primary school, he used to go to the surf club where there were cups of beer available. He told Dr Dinnen he drank one on one occasion. Later, when he was at high school, aged 12 ½, he had two bottles of beer bought for him by an "older bloke".. He had drunk one. Another male tried to take the second bottle from Mr Meehan. Mr Meehan hit the other man over the head with the bottle. The police came and Mr Meehan was sentenced to incarceration at Mt Penang.
* Mr Meehan denied any anxiety or problems in spite of these events. He denied having any medical attention in Mt Penang. He was in Mt Penang until 15 years 10 months. He enlisted when released.
* Mr Meehan had no explanation for his bed wetting in his youth. According to TD2/12.1, he had suffered from enuresis until 11 years of age.
* Mr Meehan told Dr Dinnen that his first nervous symptoms developed a year after he enlisted. He had finished recruit school and partaken in exercises. He said he started to feel nervous as they sailed towards Vietnam. He said, "reality came, the navy was no longer a game. I started to get a bit toey".
* In Vietnam, Dr Dinnen recorded, Mr Meehan was sentry on the upper deck. He was told what to watch for but he felt fear in case he should miss something and it would be his fault. "He said there were scare charges and so forth".
* He told Dr Dinnen that when he was ferrying soldiers back and forth to the ship he saw very old, worn out men coming back despite them having been only 19 or 20 when they started in Vietnam.
* He said that after that first trip his feeling of apprehension did not go away. He said he thought, "we've got to do this again".. On his return from the first trip he had been drinking on board in the mess deck. Back in Sydney he drank at a pub in Woolloomooloo. He was aged 17.
* He said that when he returned from his second Vietnam trip his anxiety was still present and he drank more, drinking to "saturation point". He said that drinking made him feel good. He could "hold his alcohol".
* Mr Meehan married at about 18 ½ and the marriage lasted a year.
* Mr Meehan's drinking was said to have progressed and become serious. As a result he was disciplined and incarcerated on a number of occasions. One such period was for 28 days. He was often in trouble for returning to his ship drunk and disorderly.
43. Dr Dinnen wrote that, in his original report dated 26 May 2000 (AB1/167), he had thought Mr Meehan suffered from generalised anxiety disorder and psychoactive substance abuse, that both conditions were aggravated by service and had been apparently present prior to service. He said that the symptoms of generalised anxiety disorder had become obvious only in recent years since Mr Meehan stopped drinking. He had also seen Mr Meehan as having a personality disorder with antisocial features which was aggravated by service.
44. Dr Dinnen wrote that, based on Mr Meehan's account and on a summary from Mr Colborne, there was no pattern of drinking established prior to service. Access to alcohol in Mt Penang was thought by him to be unlikely.. Mr Meehan had joined the navy two weeks after leaving Mt Penang. Dr Dinnen said there was no evidence that Mr Meehan was in the habit of drinking when he assaulted the 19 year old man with a beer bottle when Mr Meehan was 12 ½.. Dr Dinnen then wrote, "Certainly one could say that his access to alcohol and his use of it was a cause for concern prior to him being sent to the institution". Dr Dinnen then wrote:
"I would therefore agree that he did not have established alcohol abuse prior to enlistment. I would think he was at risk of developing problems with alcohol, but the problem only developed in reality once he entered the Navy.
"Secondly, with regard to the view that I formed that he may have had an anxiety disorder prior to enlistment, the evidence there is also inconclusive. Bedwetting can be a pointer to such a condition, which was my assumption but from the documentation and from this interview with the patient, there is no good evidence that he did suffer an anxiety disorder of any sort prior to enlistment. Again, the patient's account at this interview is quite specific. He had no symptoms of anxiety prior to joining the Navy, and first became anxious during his first trip to Vietnam, and particularly while in harbour there and again on the second trip, by which stage his feelings of anxiety had been well established. However, his use of alcohol I believe masked these symptoms for many years until he became abstinent twelve or so years ago.
"Without reference to the report from Commodore Mulcare from Writeway Research Service, I am content to rely on the patient's account to me of his experiences of those two trips to Vietnam, and the evidence given to the AAT in 2000, and the various accounts obtained by others as found in the section 37 documents.
"Opinion: It seems therefore that my original statement that `both conditions apparently were present prior to service' cannot be substantiated by any further relevant information.
"It seems the patient's account of anxiety developing during those two trips to Vietnam is now established. The patient said he took drinking up with a vengeance `that's how I controlled my fear'.. I note that in my initial evaluation I stated `during the interview the patient mentioned that he would go to the mess deck after being on watch and it was while there he would hear them drop the charges. He said this causes him even now to get anxious at times. When he was drinking however he "never thought about anything - all I worried about was where the next drink was coming from"'.
"Statement of Principles: It would seem therefore that the patient's generalised anxiety disorder developed as a consequence of the `stressful events' which he experienced during operational service, those being his two trips to Vietnam and what happened while he was in the harbour there. This satisfies factor 1(b) of the Statement of Principles. His anxiety was dealt with at the time by alcohol abuse which became established through the years, but which has now been in remission for the past twelve years or so."
45. In oral evidence on 22 March 2002 Dr Dinnen explained his change of mind (AB1/220). When he first examined Mr Meehan the emphasis was on trying to establish a diagnosis of the applicant's problems. There appeared a clear history of frank anxiety symptoms dating from the late 1980s when he ceased drinking. In the re-examination Dr Dinnen focussed more attention on the experience Mr Meehan had described at their first encounter when he said he felt apprehensive when in Vietnam. He tried to establish what anxiety symptoms Mr Meehan had had then and at other times in his life. He went on to say that it appeared "that his habitual excessive use of alcohol was of the quantity from that time to mask any clear symptoms of an anxiety disorder from being either subjectively or objectively identified until the alcohol was removed in the late 1980s".
46. In follow-up questioning Dr Dinnen referred to Mr Meehan's sleep problems as indicative of an anxiety state. However, in examination Mr Colborne tried several other symptoms on Dr Dinnen but these were not regarded as symptomatic of anxiety. These were a loss of interest in sport and isolating himself from others and drinking alone. As Dr Dinnen said (AB1/220), "It's not generally a sort of first rank symptom of anxiety, to withdraw and isolate." It was more an indicator of depression.
47. Dr Dinnen withdrew his earlier opinion that Mr Meehan's anxiety had commenced pre-naval service and had been aggravated by service. He said that he had tended to assume such was the case because of Mr Meehan's early behaviour problems, bedwetting, etc. However, he had concluded that there was not "good evidence to justify saying he had a pre-existing anxiety condition before service" (AB1/221).
48. Asked how long after service would Dr Dinnen have seen the onset of an anxiety state, Dr Dinnen said he had no better information than it was identified as being present "over the past 12 or 13 years, since he stopped drinking" (AB1/222). He proceeded to say, "What we would have to say then to justify a connection to service would be that it was present but swamped by alcohol from the time of service. ... operational service." Asked how likely it was that Mr Meehan had the anxiety state from the time of his service, Dr Dinnen said, "I think it's more likely than not but the account he gives now is a reasonable account and is true. If we take on face value what he describes at present and what he has been describing through the two years that I have known him, albeit two years apart when I examined him, it seems that there is a consistent thread of apprehension which he was aware of when he was in Vietnam and which he then associates with heavy drinking and I think that it is more probable than not that he did have an anxiety disorder at that time."
49. In cross-examination Dr Dinnen said that he changed his view regarding Mr Meehan's childhood as a source of anxiety because Mr Meehan's account was, and he "had no way of contradicting it", that he did not feel those feelings of anxiety that he felt in Vietnam "when he was growing through his turbulent adolescent years" (AB1/222). He told Miss Henderson that he had considered childhood anxiety to be present because of the bedwetting to the age of 11, nail-biting and feeling unwanted as a child.
50. Miss Henderson also raised with Dr Dinnen the propensity of a patient exposed to a series of psychiatric examinations to be instructed by those examinations in relation to the psychiatric condition contended for (AB1/227-228). Dr Dinnen agreed that this occurs. However, he then said, "at the end of the day you have to accept the individual's account to you as being reliable" (AB1/227). He also said, by way of agreement with Miss Henderson, "Generally speaking, ... I think the earlier the psychiatric evaluation the more helpful the information in it can be in subsequent evaluation" (AB1/228).
51. Dr Dinnen was then reminded of what he had said in evidence in October 2000 when he said, "in this situation, with a personality disorder and with the sort of colourful life history, clinically if I am treating this fellow I don't take anything as being fact and you know it could even be ... there is a bit of fabrication in a personal history as well ...".. He said that he would not resile from those comments (AB1/228).
52. Miss Henderson then put to Dr Dinnen, "On the last occasion you also said in cross-examination that there were no symptoms of anxiety as such presented by the sailor within two years of operational service but there are signs of him being disturbed within that period. Do you hold to that view?" Dr Dinnen replied, "Yes, I think so. That is I think consistent with what I have been saying today. Bearing in mind the symptoms are matters which the individual reports. That is what we are talking about and there is no report of anxiety symptoms within two years of operational service that I am aware of" (AB1/229).
53. In re-examination, however, Dr Dinnen said, "So far as I can determine, he didn't have an identified anxiety disorder during service. Now looking back he is able to identify symptoms which he experienced at that time which I would say now would qualify him as having an anxiety disorder within two years of operational service" (AB1/230). The symptoms were a feeling of apprehension and sleep disturbance.
54. The upshot of this material is that it is difficult to see in Dr Dinnen's evidence a clinical onset of the type required by the Federal Court in Cornelius (above). The tribunal is aware of course of the High Court judges in Bushell (above) stating that "the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge". It might be said here that Dr Dinnen, an eminent expert in psychiatry, has endorsed a hypothetical element to the effect that the symptoms of anxiety disorder were present in Mr Meehan within two years of his experiencing of a stressor, indeed, it seems that Dr Dinnen regarded the anxiety disorder as having its onset at the time of, or immediately after, the stressor.
55. The tribunal's analysis, however, is that it is not enough, in the light of the explicit requirement in the SoP, for an expert merely to say that the symptoms would have been present but were masked. It seems to the tribunal that this involves an exercise of substituting the opinion of a medical expert for the explicit requirements of a SoP, an exercise disapproved by the Federal Court in Gosewinckel (above).
56. That returns the tribunal to Mr Colborne's submissions (paragraph 29 above) that sufficient relevant symptoms were reported and perceptible within the required period. Of these the tribunal comments as follows:
* Drinking as evidence of excessive worry and apprehension on more days than not over a six month period. The applicant's own evidence was that there was a connection, that the drinking increased after the stressor and was to block out the anxiety. The tribunal regards this symptom as having been present, hypothetically at the appropriate time, based on the admittedly self-serving evidence of Mr Meehan.
* Drinking in order to relax. Again, based on Mr Meehan's self-serving evidence, the tribunal is prepared to accept that this meets the hypothesis.
* Irritability. The tribunal is again prepared to accept that the indicia of irritability enumerated by Mr Colborne satisfy the requirements in the SoP.
* Muscle tension. The only material suggesting that Mr Meehan suffered from muscle tension in the appropriate period was in comments he made to Dr Dinnen. The tribunal has some doubt that this is adequate. At page 445 of DSM-IV the editors state, "Associated with muscle tension there may be trembling, twitching, feeling shaky, and muscle aches and soreness". These manifestations seem of a different order from his stomach "seeming to go", whatever that might mean. However, consistently with the general approach taken to the Act as beneficial legislation, the tribunal is prepared to accept that this amounts to a raised fact relevant to the requirements set out in the SoP.
* Sleeplessness. Miss Henderson was on firm ground in suggesting that this cannot be a symptom if it has always effectively been present. The evidence to this effect, taken by Dr Richardson early in this process of seeing psychiatrists associated with Mr Meehan's pension claim, would appear especially cogent. However, it is possible that the hypothesis advanced was meant to be read to involve a change for the worse in Mr Meehan's sleeping pattern. This would be an appropriate matter as regards the SoP requirements.
57. As the tribunal said earlier, in considering step 3 of Deledio (above), the raised facts are to be assumed to be true at this point unless contradicted by known scientific fact or because of some other fundamental problem. The hypothesis can in such a case be regarded as fanciful, impossible, incredible, too remote or too tenuous.
58. The tribunal feels compelled by the legislation and authority to find that the hypothesis advanced connecting Mr Meehan's operational service with his generalised anxiety disorder was reasonable as conforming to the SoP requirements. This involves a finding that there are raised facts in support of a clinical onset of generalised anxiety disorder within two years of Mr Meehan having experienced a stressful event.
IS THE TRIBUNAL SATISFIED BEYOND REASONABLE DOUBT THAT THE APPLICANT'S INCAPACITY DID NOT ARISE FROM WAR-CAUSED INJURY?
59. Moving on to consider step 4 of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury.
60. The tribunal was concerned by the repeated instances of unreliable material presented by the applicant in the process leading up to the present hearing. A summary of these includes the following:
* Mr Meehan represented at least one of his two Vietnam trips as having occurred during the Tet Offensive. He later had to admit that this was not correct. However, extracting an admission that Mr Meehan had been in Vietnam about a year after Tet required some effort on the part of the respondent's representative. In AB1/70 Ms Doggett, for the respondent, asked Mr Mehan, "Dr Dinnen has referred to you being in Vung-Tau Harbour during the TET offensive, is that true". The response was, "Since this has all started I've looked it up and I was there after the TET offensive." Ms Doggett then said, "So that's not right?", to which Mr Meehan responded, "Well I always thought I was up there during and I've looked it up, the dates I was up there was just after the TET offensive." Ms Doggett responded, "About 12 months after the TET offensive wasn't it?" Mr Meehan answered "Yes". Had Mr Meehan been in Vietnam during Tet, it would have strengthened his claims.
* Mr Meehan exaggerated the number of occasions on which he had served in Vietnam, claiming to have been there four times to Dr Dinnen (AB1/168). He told others he had been to Vietnam five times (AB1/76, Dr Walden, 9 September 1999, AB1/183). In a statement he prepared on 13 January 2000 for N1999/861 he said he was in Vietnam five times (AB1/162). Ms Doggett (AB1/76) asked Mr Meehan, "When you thought that you went to Vietnam five times, did you think that was a fabrication?" Mr Meehan responded, "Yes, yes". Ms Doggett continued, "So even though you were saying to people I've been to Vietnam five times, you did not think that was right?" He said in response, "Well at the time I thought it's what I'd done." Ms Dogget followed with, "And at the time, did you have any idea it might not be true?" Mr Meehan said, "No".. Mr Meehan proceeded from this to concede that his memory of details of his service and of events might possibly be incorrect (AB1/77). Again, it can be said that it would have enhanced Mr Meehan's claim if he had visited Vietnam on these additional occasions.
* Mr Meehan told Dr Altman he spent five months in Vietnam (AB1/T10). He told Dr Richardson he was there for three months (AB1/T6). He was in fact there for only 5 ½ hours on each of the two occasions (ex R2/2). Mr Meehan had no effective explanation for this inaccurate information when cross-examined about it (AB1/210). There is, of course, an enormous difference between an experience involving months in Vietnam and another involving two discrete visits of only a few hours each.
* Mr Meehan incorrectly told Dr Altman that he saw people being killed and injured (AB1/T10, AB1/165). He later told the VRB (TD1/T24/77) that he did not see anyone killed or wounded. In AB1 at page 212 Mr Meehan conceded that he did not see people being killed and injured. He also admitted this to Dr Walden (AB1/183). Asked why he had told Dr Altman he had seen such events, he said, "It was probably something at the back of my mind, I don't know." (AB1/212). He went on to say that he has "got a blanks on my mind. I am just not sure."
* Mr Meehan told Dr Altman that he had seen corpses and transported body bags (AB1/T10, AB1/166). He told Dr Dinnen (AB1/168) that he saw men returning from Vietnam "in body bags I assumed".. In his own statement for the tribunal in 2000 he said he assisted in loading body bags in bringing troops home (AB1/162). He later told Dr Altman that he had not seen corpses (AB1/166). He said the same to the VRB (TD1/T24/77). Commodore Mulcare confirmed (ex R2/4) that the HMAS Sydney did not bring bodies back from Vietnam and that body bags were not loaded on board the Sydney at Vung Tau. At the VRB he "said he did not see anyone killed or wounded. He did not see any corpses. Despite this he told the VRB that he saw bags that could have had bodies in them" (TD1/T24/77). Again, it must be said that, had Mr Meehan's version of events been accurate, his claims would have been enhanced.
* Mr Meehan told Dr Altman he was a clearance diver (AB1/T10, AB1/165). He also told the VRB that he had "did some clearance diving as one of a team of three divers. That involved checking the hull near the water line" (TD1/T24/78). Later, however, he had to tell the VRB (TD1/T31/94) that he had not at that stage been trained to dive or done so. In cross-examination (AB1/212) Mr Mehan explained this by saying that he thought he had engaged in clearance diving because he qualified as a diver at some other stage in his service. He was unable to say when he so qualified. He agreed it was after Vietnam. Again, had this material been accurate, it would have placed Mr Meehan as a far more active service operative placed in situations of much greater risk.
* Mr Meehan said that he had been a sentry officer in the bow of a landing craft in Vung Tau Harbour at night. He suggested that this was so to Dr Dinnen (AB1/168-169). In his own statement for the tribunal in 2000 (AB1/162) he said he was on sentry duty in Vung Tau Harbour when the ship was completely blacked out. He said he could not see further than a couple of feet and was "terrified the whole time".. It was clearly established, however, that the HMAS Sydney was in Vung Tau Harbour only in daylight hours (ex R2/2), more accurately from around 7.00 am until around noon on each of the two days involved. The accurate picture is, therefore, very different from, and much less threatening than, the version presented by Mr Meehan.
* Mr Meehan said he heard scare charges in Vung Tau Harbour at night while in his bunk (his statement at AB1/162; to the VRB, TD1/T24/78; to Dr Dinnen, AB1/169). As has already been noted, the ship spent no time at night in Vung Tau Harbour. It is also highly doubtful that Mr Meehan spent any time at all in his bunk, or a hammock, during the few hours the ship was in Vung Tau Harbour on each occasion. As Commodore Mulcare wrote (ex R2/4), "The ship's company were all turned to while the ship was in Vung Tau and it is extremely unlikely that Mr Meehan was in his `bunk' when he heard scare charge explosions". Mr Meehan had told Dr Dinnen (AB1/169) that he had four hours at a time off duty in Vietnam, a most improbable suggestion given that the ship was there for only about 5 ½ hours at a time. In cross-examination (AB1/211) Mr Meehan was asked to address these matters but his responses were of little assistance in clarifying how he could have found time for sleep at a time when scare charges were employed.
* Mr Meehan also told Dr Dinnen (AB1/169) that the Sydney had been fired on in Vung Tau from Radar Hill. Rockets were explicitly mentioned. However, he told the VRB (AB1/40) that there had been no nearby enemy action. In cross-examination (AB1/76-77) Mr Meehan insisted that he had seen two rockets "fired at Radar Hill". Challenged about this on the basis that generally his recollections about his Vietnam service were incorrect, Mr Meehan responded, "It's a possibility, yes." The Reports of Proceedings (ex R2) do not refer to any such firing when Mr Meehan was in Vung Tau. Associate Professor J Grey of the Australian Defence Force Academy, a specialist military historian, in ex R3 advised that there were no incidents involving the Sydney or its escorts and hostile forces in the waters of Vung Tau or the Market Time area at any time during the Vietnam war. "There were no attacks made on the ships, either by aerial, surface or sub-marine forces".
* The tribunal was also doubtful regarding certain evidence given by Mr Meehan regarding his drinking. He told Dr Dinnen in March 2002 (AB1/263) that he had consumed only three glasses of beer in total before joining the navy. However, he also told Dr Dinnen that he had consumed a "cup" of beer at a surf club while in primary school and that he had consumed a bottle of beer at 12 ½. At that time he was preparing to consume a second bottle when he was interrupted by another youth aged 19 who tried to relieve him of the second bottle. In oral evidence he told the tribunal on 22 March 2002 that he was not drunk on that occasion despite having consumed a full bottle of beer (AB1/208). This was either incorrect in that he would have been inebriated from consuming such a volume as an inexperienced drinker, or it suggested a tolerance to the effects of alcohol that could have arisen only from a period of alcohol abuse.
61. In view of the unreliability of the applicant's recollections of events the tribunal considered whether, in accordance with step 4 of Deledio (above), it was satisfied beyond a reasonable doubt that the applicant's generalised anxiety disorder was not war-caused.
62. It is not unusual in tribunal and court proceedings, where a witness has been shown to be other than a witness of truth, for the court or tribunal to adopt the approach of accepting the witness's account only where it corroborated. This is an approach adopted with caution as it cannot be assumed that all of a witness's evidence will be unreliable merely because some of that witness's evidence has been unreliable. However, the tribunal considered that the extent of the applicant's unreliability in this case made such an approach justifiable and appropriate.
63. That being the case, the cogency of much of Dr Dinnen's evidence, especially as regards the time of clinical onset becomes doubtful. Paragraphs 48-51 above indicate that Dr Dinnen invested considerable reliance, and apparently uncritical reliance, on what Mr Meehan told him. Dr Dinnen referred to no other evidence that corroborated the account of events, symptoms, etc he received from the applicant.
64. The tribunal has already noted the material put forward by Mr Colborne to suggest that Mr Meehan experienced symptoms of generalised anxiety disorder within two years of experiencing stressful events (see paragraphs 29 and 56 above). However, that material was based on Mr Meehan's self-reporting of symptoms and their connection with the alleged stressful events. To the extent that any of that material was corroborated the corroboration was in the form of medical opinion based on a history given by Mr Meehan.
65. The tribunal finds that the credibility problems that were integral to Mr Meehan's evidence, and to material on which others based their evidence, rendered that material of little use as evidence. The tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Meehan's generalised anxiety disorder was a war-caused disease.
CONCLUSION
66. The tribunal has found that Mr Meehan's generalised anxiety disorder was not a war-caused disease.
DECISION
67. The tribunal affirms the decision under review as varied by the Veterans' Review Board.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member
Signed: .......................................................................................
Associate
Date of hearing 12 February 2003
Date of decision 9 May 2003
Counsel for the applicant Mr C Colborne
Solicitor for the applicant R L Whyburn & Associates
Counsel for the respondent Miss R Henderson
Solicitor for the respondent Australian Government Solicitor
[1] http://www.austlii.edu.au/au/legis/cth/consol_act/vea1986261/.
[2] http://www.rma.gov.au/SOP/00/001.pdf.
[3] http://www.rma.gov.au/SOP/94/revoked/048.pdf.
[4] http://www.rma.gov.au/SOP/95/revoked/275.pdf.
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