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Administrative Appeals Tribunal of Australia |
Last Updated: 10 July 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
GRAEME JOHN RAFFERTY |
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And |
REPATRIATION COMMISSION |
Tribunal |
Associate Professor S D Hotop, Deputy President |
Decision
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The Tribunal sets aside the decision of the Veterans' Review Board dated 29 November 1999 and, in substitution therefor, decides that the applicant presently suffers from Generalised Anxiety Disorder ("GAD") and that the applicant's condition of GAD is a war-caused disease, within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act"), with effect from, and including, 16 August 1998. The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant in accordance with the Act on the basis of this decision of the Tribunal. |
.........(sgd S D Hotop)..........
VETERANS' AFFAIRS - veterans' entitlements - disability pension - applicant served in Royal Australian Navy from 1964 to 1973 - applicant rendered "operational service" during 1966 - applicant served in police force from 1973 to 1999 - applicant claimed disability pension in November 1998 in respect of, inter alia, "stress/depression" - whether applicant suffering from Generalised Anxiety Disorder ("GAD") - whether applicant's GAD a "war-caused disease" - whether a reasonable hypothesis connecting applicant's GAD with circumstances of his "operational service" - whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining applicant's GAD to be war-caused
Veterans' Entitlements Act 1986 ss 5D(1), 9(1), 120(1), 120(3), 120(4), 120A(3)
Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 48 of 1994, as amended by Instrument No 275 of 1995)
Statement of Principles concerning Anxiety Disorder (Instrument No 1 of 2000)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Deledio v Repatriation Commission (1997) 47 ALD 261
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
Thomas v Repatriation Commission [2003] FCAFC 122
4 July 2003 |
Associate Professor S D Hotop, Deputy President |
INTRODUCTION |
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1. This matter is again before the Tribunal following a remittal by the Federal Court of Australia. The Tribunal, in its previous decision in this matter on 7 May 2001, affirmed a decision of the Veterans' Review Board ("VRB") dated 29 November 1999 refusing to accept the applicant's claim that his post traumatic stress disorder ("PTSD") is war-caused, within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act"). On 21 November 2001, however, the Federal Court ordered (by consent) that the Tribunal's decision of 7 May 2001 be set aside and that the matter be "remitted to the Tribunal differently constituted for re-hearing ...".
2. At the re-hearing by the Tribunal, the applicant was represented by Mr H Christie, solicitor, and the respondent was represented by Dr J T Schoombee of counsel. The Tribunal had before it the following exhibits:
* Appeal Papers (pp1-251) in Federal Court of Australia matter No W209 of 2001 between Graeme John Rafferty and the Repatriation Commission, on appeal from the Administrative Appeals Tribunal (AR1);
* Emotional and Behavioural Medical Impairment Worksheet completed by Dr M Woodall on 2 May 2001 (A1);
* report of Dr O Kay, dated 8 April 2002 (A2);
* report of Dr O Kay, dated 9 September 2002 (A3);
* report of Dr P Burvill, dated 6 September 2002 (A4);
* report of Dr R Hester, dated 21 October 1998 (R1);
* letter from Dora Volleman, Health & Welfare Branch, WA Police to the applicant, dated 18 February 1999 (R2);
* report of Medical Board, comprising Drs K Stanton, H Stampfer and G Phillips, convened pursuant to reg 1402 of Police Force Regulations (WA), dated 23 February 1999 (R3);
* report of Dr M Woodall, dated 19 October 1998 (R4);
* report of Dr L Terace, dated 26 October 2002 (R5);
* extract from Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed, 1994) ("DSM-IV"), pp 432-444 (R6);
* report of Dr Z Mustac, dated 21 June 2002 (R7); and
* report of Dr Z Mustac, dated 31 October 2002 (R8).
Oral evidence was given by the applicant and by the following additional witnesses: Mrs J Rafferty, Dr M Woodall, Dr O Kay and Dr P Burvill (who were called by the applicant); and Dr R Hester, Dr L Terace and Dr Z Mustac (who were called by the respondent).
GENERAL FACTUAL BACKGROUND
3. The general factual background to this matter, about which there is no dispute between the parties and as found by the Tribunal on the basis of the documents lodged with the Tribunal by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 in connection with Application for Review No W1999/406 (Exhibit AR1, pp 1-119), is as follows.
4. The applicant, who was born in 28 November 1946, enlisted in the Royal Australian Navy ("RAN") on 6 January 1964 for an engagement period of 9 years, and was discharged when that period expired on 5 January 1973.
5. The applicant's service in the RAN included "operational service", within the meaning of the Act, on board HMAS Yarra from 25 April 1966 to 9 May 1966 and from 26 May 1966 to 9 June 1966, and "defence service", within the meaning of the Act, from 7 December 1972 to 5 January 1973.
6. On 16 November 1998 the applicant lodged with the Department of Veterans' Affairs ("DVA") a Claim for Disability Pension in respect of disabilities described as "hearing/tinnitus", "tinea", and "stress/depression".
7. On 13 April 1999 a delegate of the respondent made a decision accepting the applicant's claim in respect of "tinnitus" and "tinea", but refusing his claim in respect of "hearing" and "post traumatic stress disorder". The delegate decided that disability pension was payable to the applicant, in respect of the accepted disabilities of "tinnitus" and "tinea", at the rate of 20% of the "general rate", with effect from 16 August 1998.
8. At the request of the applicant, a Senior Delegate of the respondent reviewed the abovementioned decision of the delegate as regards the applicant's claim in respect of PTSD and, on 21 July 1999, decided not to vary that decision.
9. On 29 November 1999 the VRB decided to affirm the delegate's decision refusing the applicant's claim in respect of PTSD.
10. On 7 May 2001 the Tribunal decided to affirm the VRB's decision of 29 November 1999.
11. On 21 November 2001 the Federal Court of Australia ordered (by consent) that the Tribunal's decision of 7 May 2001 be set aside and that the matter be remitted to the Tribunal (differently constituted) for re-hearing.
THE APPLICANT'S EVIDENCE
12. The applicant confirmed that he had made a written statement, dated 26 April 2001, in this matter and he verified the contents of that statement. That statement (Exhibit AR1, pp 204-207) reads as follows:
"1. I was born in WA on 28 November 1946.
2. I joined the Navy on 6 January 1964. I was posted to HMAS Cerebus (sic) in Melbourne where I did my initial training.
3. I was then posted to HMAS Vampire, we sailed to the Far East we were involved in Malaysia and Borneo. We were stationed there for 10 months; based in Singapore mainly patrolling the Singapore straits and the straits of Malacca. I was radar operator at that time.
4. There were a few unpleasant incidents when I was on the HMAS Vampire. Twice the ship was caught up in typhoons, which were frightening. On another occasion I recall fishing dead bodies out of sea. This was during the conflict between Indonesia and British Borneo we patrolled to prevent infiltrators from entering British Borneo by sea. On occasions, we fired on small fishing type boats that wouldn't stop. I don't recall if the bodies were as a result of this firing or whether we just came across them. This was in 1964 and I was 17 at the time. Another time I almost fell off the ship, when we were replenishing out at sea; I would have crushed between to the 2 ships (sic). These things caused me anxiety at the time, but I do not recall them having any longer term effect upon me and I don't relive memories of these incidents.
5. When we returned to Australia I did a communications/radio operators course. It was about a 9 or 10 months course in 1965. Whilst doing this course, I first met my wife, Jenny. At the time, I was playing Australian Rules football for the Navy and we first met on bus trip to a football match. We continued to see each other initially just as friends. We mixed as part of large group of friends. I was a very light drinker at this time and I loved my sport.
6. In 1966 I was posted to the HMAS Yarra which escorted the HMAS Sydney to Vietnam. There were no particular problems on the trip up there. As we approached I recall being anxious, as we were warned that we going (sic) to a war zone, and we were told our behaviour would have to change, and that we were going to have to be on alert for anything. The dangers that were described to us were principally the risk of Vietcong frogmen laying mines against the ship and that the Vietcong would hide amongst the floating debris to get close to the ship. That tactic was countered by our own frogmen and boat crews that circled the ship 24 hours a day. Part of the duties of the boat crew were to drop small depth charges at random intervals.
7. I was on a boat crew circling the ship and dropping charges for one shift, it was from 12 midnight and 4 am (sic). I found that at 19, it was absolutely terrifying. It was pitch black although it got a little lighter by 4 am. On the boat, you could see the silhouette of the ships, but there were no lights on the ship or on the small boat and whenever a log went past, my heart would jump to my mouth. I remember coming off that shift and I just couldn't sleep, I was so anxious.
8. Whilst in the radio room the depth charges went off at regular random intervals. We knew the depth charges were going off, but my initial reaction each time was one of shock and panic, before the rational mind took over and I would realise that, if we were actually being fired upon, we would be informed. We believed were (sic) anchored in range of mortar rockets and I felt that we were a sitting duck. The radio room was in the middle of the ship and I worried about being trapped. The whole experience made me feel very vulnerable and I worried about being killed.
9. I was in the harbour for 2 nights. From then on I had trouble sleeping. I had never had problems sleeping before.
10. We had a second trip back into Vietnam waters but didn't enter Vung Tau Harbour; we then escorted the Sydney back to Australia. The whole trip I think took about 3 months. I came back to Melbourne and was on leave for a period. The HMAS Yarra went in for a refit. I met up again with Jenny in Melbourne and we went out together. I started drinking a lot more than I had previously and I was still having trouble sleeping. I was having thoughts about not being here on this earth and how close to dying we were.
11. I then got posted to New Guinea to the HMAS Tarangau on Manus Island. I was there for a year. I spent the whole year up there didn't (sic) have leave during this period.
12. Jenny and I corresponded very closely. We wrote regularly and we spoke on the radio. This was the one thing that kept me sane. I drank too much there; I was having bad dreams and I hit the drink very hard. I found that it was the only way I could cope. I didn't feel there was anyone I could talk to about it. I noticed that I was very aggressive. I ended up getting charged.. This arose when I was told to update and insert some amendments into a navy rulebook. I told my superior to get fucked. I would have been jailed, but there was no jail, so I was given a 2nd class reduction in pay and extra duties. My response occurred during the day. I had not been drinking at the time, although I had been drinking the previous night as that was my regular routine. I just exploded because I thought he was being unfair.
13. When I came back from HMAS Tarangau, Jenny and I got married. I didn't actually notice a great change in my personality, but I realised enough to know that I was very volatile which I hadn't been before. Prior to Vietnam nothing used to phase (sic) me, it would take a lot to upset me. After Vietnam, I became very aggressive. I continued to have sleeping problems. I had occasional nightmares; when I woke the dream would be about being about (sic) out in the small boat and Vietcong behind coconuts trees or in the water etc. I continued to drink heavily at evenings when not on shipboard duty. I would drink in the mess at the shore station, or out with my mates, or on my own at home.
14. I was stationed at Singapore for about 2 years with my wife. That was a shore-based station. We had married quarters up there and my 2 sons were born up there. There were service personnel stationed in the same street and at the time I would drink mainly with friends, either in their house or my house.
15. Part of my duties in Singapore was to decode signals from Vietnam, which was all about the various troop and ship movements there. I could see the dangers that the ships and troops were in and it made me relive my own vulnerability there.
16. After we were finished in Singapore, I was posted on the frigate HMAS Stuart for 3 years. During this period there were 2 long trips to the Far East. I was away when my daughter was born. Nothing traumatic occurred on these postings. We didn't drink on the ship except on special occasions; but when we went ashore, I would go on a binge. I was away for long periods once for 10 months, once for 8 months. I had only 6 weeks leave a year.
17. After the HMAS Stuart, I considered re-signing, but they mentioned I would be going back to sea immediately the ship was going back to the Far East and maybe back to Vietnam. The thought of Vietnam really put me off and I didn't sign on again. I was discharged in January 1973. I came to HMAS Leeuwin in Fremantle to be discharged; I spent last 3 months before my discharge there.
18. About 6 months later, I joined the police for almost the next 26 years. I was based in Perth for the whole of my police service apart from 3 years spent in Kalgoorlie from about 1979 to 1981. I continued to drink too much whilst in the Police Force. I continued to have difficulty sleeping and I was irritable and demanding on others. I now realise was (sic) very hard on my children. I believe my condition may have improved for a while whilst in the Police Force and then gradually deteriorated.
19. I had other traumatic events in my life. My father had a heart attack in 1975 when aged 56. I had a brother who was murdered in Kalgoorlie in 1983; he was a policeman. My elder son committed suicide in 1992. I believe that these family traumas may have made my condition worse. I became bitterer, more cynical, and more racist. I have very little patience with people who don't do the right thing.
20. I significantly reduced my drinking about 15 years ago, it is related to not wanting to mix with people. The desire not to mix socially with people has occurred increasingly from shortly before my son died.
21. I believe my personality has changed since Vietnam and it worsened in more recent years particularly since my son died and I have been increasingly uptight. I blow my top very easily.
22. I realised that my work performance was suffering because of my volatile temper and I organised through my work on my own initiative to attend anger management courses. I realised that my behaviour was wrong and that it would get me into trouble, but I couldn't stop it. The courses didn't seem to help a great deal. I talked to a doctor at South Fremantle Football Club after an incident there. He suggested that I see Dr Woodall.
23. I was initially reluctant to go and I put my behaviour down to frustrations and stress at work. In 1996 I went to the USA for a long holiday. I thought the break might cure me. My wife says I just as bad on that trip. When I came back I started to see Dr Woodall. That was in October 1996. He got me to talk about my problems and he also gave me medication. I am on Arapax it is a sedative. It I don't take them, I really fire off crawling up the wall snapping at my wife. I spoke to Dr Woodall about everything in my life over about 2 years. Dr Woodall then said he considered that my problems started in Vietnam. I hadn't made the connection between my irritability and my experiences in Vietnam.
24. Although talking to Dr Woodall and understanding what was wrong, helped me to some extent, I really wasn't coping with work in the sense that I was constantly angry when either the public or my fellow officers didn't behave as I considered that they should. When things would get too much for me and I was at risk of thumping people, Dr Woodall would certify me for sick leave. However when I went back to work each time, the anger would just come back whenever somebody did something wrong. It came to be that something as small as a slow driver holding up the traffic would set me off.
25. Eventually the police department sent me to Dr Hester as an independent psychiatrist for an opinion to see if we were able to continue because I was having too much time off. Then they sent me to a medical board who agreed that I should be retired from the police force on medical grounds. The assessment was not looking at the causes; it was looking purely whether I was fit to be a police officer. When I was retired unfit I was entitled to superannuation. At no time have I claimed that the police work caused my anxiety condition or made a claim for workers compensation.
26. Once retired I had less frustrations. I feel that I am not as bad, although my wife does not agree with that assessment. I have isolated myself, I don't have anything to do with anyone. I have only been a train for ages (sic). When recently travelling to Perth, which I don't normally do, I just about exploded just because some aborigines were running around on the train. I don't read the papers, I rarely watch the news on TV, and my interest in life is my grandchildren."
13. As regards oral evidence, the applicant confirmed that he had read a transcript of the oral evidence he gave at the previous hearing on 4 May 2001 and that that evidence was true and correct, and, for the purpose of his evidence-in-chief in the present proceeding, he chose to rely on that evidence and not to add to it or qualify it. That transcript was tendered in evidence (Exhibit AR1, pp120-158). In his evidence at the previous hearing the applicant referred in particular to his service on board HMAS Yarra in Vietnamese waters in 1966. He said that HMAS Yarra was anchored in Vung Tau Harbour for 2 nights and the crew members were informed that the ship was in range of enemy mortar fire and that there was also concern about enemy frogmen in the harbour placing bombs on ships that were anchored there. He said that, as a radio operator, he worked in the radio communications room which was situated in the middle of the ship below the bridge at about water level. He said that while on duty in the radio communications room he occasionally heard "scare charges" going off in the water and his initial reaction "was one of fright and helplessness".. He also referred to one occasion when, during the midnight to 4.00am shift, he was on board a small patrol boat which circled the ships anchored in the harbour for the purpose of dropping "scare charges" in case there were enemy frogmen in the vicinity. He described that experience - being on a small boat in the harbour in "pitch black" conditions and able to see only the silhouettes of the ships in the distance - as "very frightening".
14. The applicant was asked to describe the feelings and symptoms he experienced after HMAS Yarra left Vung Tau Harbour. He said that he felt "anxious until we got out of that area" and that he was unable to sleep. He said that his behaviour also changed at that time - he became "moodier", had "mood swings", became "aggressive" and "started drinking more alcohol". He said that after HMAS Yarra returned to Australia in 1966 he had a period of leave and was then posted to HMAS Tarangau on Manus Island off New Guinea. He said that during his period of service on HMAS Tarangau he was "anxious all the time" and would "worry about how things could have gone in Vietnam", and he drank alcohol heavily - at least 10 "stubbies" per night - because "that was the only way [he] found that [he] could cope with how [he] felt".. Asked whether there were things, other than Vietnam, that were worrying him, he responded that he did not have any other worries in his life at that time.
15. The applicant told the Tribunal that, after returning to Australia from HMAS Tarangau (in September 1967), he got married. He said that in the early years of his marriage he continued to be aggressive and moody and to drink "a considerable amount", that he would wake up every couple of hours during the night, and that he had dreams about the events that occurred while HMAS Yarra was in Vung Tau Harbour - in particular, his experience on the patrol boat. He added:
"It was mainly the fear that I had when I was in Vung Tau Harbour of being killed."
16. The applicant said that his next posting was to a shore-based station in Singapore where he spent the next 2 years (1968-1970). He said that his job there was to decode Vietnamese messages that had been intercepted by the radio operators. He added that those messages related to troop and ship movements in Vietnam and they brought back to him the feelings of vulnerability and helplessness that he experienced when he was there in 1966.
17. The applicant said that he was then posted to HMAS Stuart for 3 years during which he went on voyages to the Far East which involved general exercises and were generally uneventful. He said that during his period on HMAS Stuart he did not drink alcohol while the ship was at sea but that he would binge-drink whenever the ship was in port.
18. The applicant said that at the end of his 9-year enlistment period he had intended to sign-on again, if only so that he would qualify for long service leave after 10 years service, but that, when he was informed that he would have to go back to sea and possibly to Vietnam, he decided not to re-sign and he was discharged in January 1973.
19. The applicant then joined the Western Australian Police Force and, according to his evidence, he "enjoyed" that work, although he continued to have problems with sleeping and "problems at home" which, he added, had "nothing to do with the Police Force".. He said that he was stationed in Kalgoorlie for 3 years (1979-1981) during which period he resumed sporting activities and began to regain his physical fitness, although he continued to experience mood swings, to have trouble sleeping, and to drink alcohol (but not as much as before, "because of the sport factor").
20. Upon completion of his period in Kalgoorlie, the applicant returned to Perth where he served as a member of the Liquor and Gaming Squad. He said that in that capacity liquor was freely available to him and the temptation was there to indulge in drinking alcohol. He said that at that time his moods were "getting worse" and he was becoming more aggressive. After completing his service with the Liquor and Gaming Squad, the applicant returned to the Central Police Station where he served for the next 5 years.
21. The applicant said that for the last few years of his service with the Police Force he was stationed at Cannington Police Station and during that period he was "on rehabilitation". He explained that in 1996, while acting as a trainer with South Fremantle Football Club, he became involved in some "on-field scuffles" and, on one occasion, "held an umpire by the throat after a game" because he did not think the umpire had done a good job. He said that he realised that such behaviour was "not right" so he consulted the South Fremantle Football Club doctor (Dr Reid) who referred him to Dr Woodall, Psychiatrist. He said that, before seeing Dr Woodall, he and his wife went on a planned holiday in the United States of America for 5 months. His behaviour during that trip continued to be abusive and aggressive and, accordingly, when he returned he commenced seeing Dr Woodall (in October 1996). He said that, after seeing Dr Woodall for 2 years, he was advised by Dr Woodall to see the DVA about the matter. He added that the DVA then requested a report from Dr Woodall and the matter has "just gone from there".. He said that while he was being treated by Dr Woodall he was placed in rehabilitation by the Police Force, during which time his contact with members of the public was kept to a minimum. He was finally retired from the Police Force on medical grounds in early 1999.
22. The applicant said that, since his retirement from the Police Force, he "just potter(s) around the yard" or helps people in their yards. He said that he used to engage in numerous recreational activities, including bushwalking, canoeing, kayaking, camping and acting as a trainer with South Fremantle Football Club, but that he now "just watch(es) the footy on TV and that's about it". He explained that the reason he has given up his former recreational pursuits is that he does not want to be with people. He said that, for the same reason, he and his wife rarely go out together (for example, for a meal) because he does not want to go anywhere. He added, however, that occasionally he will go to the movies, "but that's about it".. He said that he does not drive a lot because he does not go anywhere that he needs to drive, but that, if he and his wife did go out together, she would do the driving most of the time because of his "temper and aggressiveness".. As regards public transport, he said that "buses take far too long" and he would not have the patience to sit in a bus; and although trains are "probably the most convenient form of public transport" for him, he avoids taking them because he "get(s) uptight" when on a train.
23. In cross-examination the applicant was referred to a report of Dr R Hester, Psychiatrist, dated 21 October 1998 (Exhibit R1), in which it is recorded that the applicant "enjoyed" his 9 years of Navy service and that he was "successful" in that service, but no mention is made of his experience in Vietnam. The applicant acknowledged that he did not mention his Vietnam experience to Dr Hester but explained that that consultation was arranged by the Police Department solely for the purpose of assessing his suitability to continue to serve with the Police Force, and the cause of the problems he was then experiencing (which he described as "irritability, aggressiveness etc") was not explored at that consultation. The applicant added that he had also been assessed by Dr Woodall, Psychiatrist, regarding his suitability to continue to serve in the Police Force and that Dr Woodall, in his report (to the WA Police dated 19 October 1998 - Exhibit R4), likewise did not refer to the applicant's Vietnam experience, although he had been seeing Dr Woodall regularly since October 1996 and had discussed his Vietnam experience with him during that period.
24. The applicant agreed that for the first 15 years of his police service (1973-1987) he had no real problems coping with his duties but that thereafter he became more irritable, aggressive and intolerant of others. He said that during the first 15 years of service he had been able to control his temper and "bite [his] tongue" but that later he found that he was unable to do so. He said that he undertook anger management courses within the Police Force and, when he found that they were not helping him, he decided to seek professional advice, culminating in his seeing Dr Woodall, commencing in October 1996. He said that, prior to that, he did not realise that he had psychological problems and that, earlier in his life, he "wouldn't have dreamt of ever going to a psychiatrist".
25. The applicant was questioned about an incident involving "bikies" during his police service. He said that shortly after he joined the Police Force - probably in 1974 or 1975 - he and another officer went to a suburban house following complaints about a noisy party being held there. He said that there were some "bikies" outside the house and, when he told them about the complaints and requested them to reduce the volume of the music, one of them threatened to assault him. He said that, although his "legs were shaking" and he feared for his safety, he managed to "put on a calm exterior" and stood up to the "bikie". He said that, although he was "a bit tense and uptight that night", he was able to go to work the next day without any problem and he did not seek any help in relation to that incident.
26. The applicant was also questioned about his experiences in Vietnam in 1966 while serving on HMAS Yarra in Vung Tau Harbour. In particular he was asked whether he subsequently experienced "the re-living of certain events", and to describe those events. His evidence was as follows:
"Yes. What were those events?--- Well, being on the little boat of a night time, going around and - circling around the ship in the middle of the night looking for enemy divers and mines and things like that. And the waters there are pretty scungy and filthy and you know, we'd been warned that they used coconuts and that sort of thing to hide behind as they're coming down, that's what we were told at the time. And I had - that was the most harrowing four hours I've ever spent in my life on that boat. A lot of it I - it's just a blur to me as far as - I was just so happy to get back on the ship, going around there and seeing all this thing, you don't know whether someone is going to blow you up or whatever.
And you were part of this exercise, you did that once?---Only once, yes.
Only once. And it was the shift from midnight to 4 am?--- Yes.
And you said towards 4am it started getting light but it was dark at the time?---Well, lighter, yes.
Yes. And you dropped overboard from time to time as part of this patrol, you dropped off what has been called scare charges?---Yes.
So would you afterwards have dreams about that?---Of dropping the scare charges?
Yes, going around the boat - - -?---Well, I had memories of being in the boat. I have memories of - dreams of actually being blown up and shot at and that sort of thing.
I understand, in that sort of context?---Yes, of being in the boat, yes, on that rubber boat.
You were really dreaming of what could have happened as far as you were concerned, isn't it?---Well, dreams did come of it. Because after that I had trouble sleeping, I couldn't get to sleep and then - and explosions and all that would - made me wake up and then I'd be hyper-ventilating because you didn't know what was happening around the place but yes, I had a lot of dreams about being in that boat and things that could have happened, etcetera, etcetera.
And did you also when you were awake did you have - sometimes would you suddenly feel that you are back in the boat or something like that?---No, I wouldn't say back in the boat but I was tense, I was uptight just on edge all the time because this was going on. Because not only the boat is out there but you got scare charges going around the ship as well."
(Transcript, pp48-49)
27. Finally, in re-examination the applicant said that he continued to be treated by Dr Woodall until early 2002 and since then he has been receiving treatment from Dr O Kay, Psychiatrist.
THE EVIDENCE OF JENNIFER MAVIS RAFFERTY
28. Mrs Rafferty, the wife of the applicant, confirmed that she had made a written statement, dated 26 April 2001, in this matter and that its contents are true to the best of her knowledge and recollection. That statement (Exhibit AR1, pp211-214) reads as follows:
"...
3. I met Graeme when we were both in the Navy. We met at HMAS Cerebus (sic), Mornington Peninsular in Victoria in 1965; I had just joined the Navy and I was doing my basic training when we met.
4. I first met Graeme when he was playing a football match. A group of the girls went out to watch the match and we met on the bus going to the match. We became friends and continued to see each other regularly as part of the same group of friends.
5. I finished recruit training. I was then a radio operator posted to HMAS Lonsdale in Melbourne. Graeme was still at HMAS Cerebus (sic), but we continued to see each other socially. Then he was posted overseas and I was posted to HMAS Harmon in Canberra.
6. After Graeme came back from overseas in 1965/1966, he visited HMAS Harmon for a short period. I believe he was on leave.
7. He transferred back on board for a short period; from there he went to HMAS Tarangau, Manus Island in New Guinea.
8. During this period, I was transferred to HMAS Lonsdale in Melbourne. Later, I was transferred back to HMAS Harmon in Canberra. Graeme was in New Guinea, but we had frequent contact by radio and were writing to each other every day. Greame was in New Guinea for about a year; during that time we decided to marry.
9. Graeme came back with a posting, I am not sure whether it was a ship or shore based posting, and we married almost immediately in September 1967. I had to leave the Navy before I got married. Those were the rules in those days.
10. Initially we set up home in Sydney. We rented a flat and Graeme was working at HMAS Cutterbool (sic) for a few months, and was then transferred to sea. Sometime after this Graeme was posted to Singapore. I was able to join him there.
11. We had 3 children:
a) Michael DOB 18 6 1969
b) Wayne DOB 24 6 1970
c) Sharon DOB 30 6 1972.
12. We were in Singapore for about 2-3 years. Michael and Wayne were born there.
13. After that period overseas, I think that Graeme was posted to Sydney and then to Melbourne and I lived with the children in these cities, but he was mainly away on ships during this period until shortly before he retired he was transferred to WA and he retired from there.
14. When we first met in 1965 and during the period when we knew each other as friends, I noticed nothing strange in his behaviour; he was a nice relaxed guy. The group were just light social drinkers and Graeme definitely didn't drink to excess during this period.
15. When he came back from sea after his trip to Vietnam in 1966, this was the first time he had been away after we had met, and we met up again. He was more aggressive and was drinking a lot more, but I put it down to just being back from sea and I didn't think it would last. We became close at this time, but we were posted in different places and it was a relatively shot time that we were together, before Graeme was transferred to New Guinea.
16. Whilst he was in New Guinea we wrote and spoke very regularly. Graeme didn't talk to me about his problems. He has never been able to speak about his feelings. We spoke by radio when he was on duty so I didn't know that he was drinking heavily off duty. We he came back, we got marred straight away. Graeme was drinking heavily, we were living in Sydney and I was working at that time. If Graeme was on leave or off duty, he would be drinking. I had alcoholic parents and I was very conscious of his drinking and was very worried, even at this stage, that he would become an alcoholic.
17. Graeme's drinking behaviour gradually got worse over the early years of our marriage. He controlled it in relation to his work, as he was conscientious about attending work etc. He was not particularly aggressive when drunk, his temper tended to be displayed more often when he was not drinking. When he would drink he would continue until he was drunk; you couldn't communicate with him or reason with him. He would drink on his own at home and then go to bed and sleep it off. I think the drinking behaviour had reached a plateau by the time he left the Navy and it stayed at much the same level until we went to Kalgoorlie, when it improved for a while.
18. From the time we were married, but getting worse over the years, Graeme was very irritable towards me and later even more so towards the children. If something annoyed him, which was usually something really small, he would jump down your throat. At first, I felt he would settle down and he would get over it, but he never did.
19. From the time of our marriage, I recall he had difficulty in sleeping. He would be thrashing around and would wake me. I would ask what was the matter and he would say nothing; he was not a good communicator. I did think that because he couldn't communicate, he would build up his frustrations and he would then let fly at something inconsequential.
20. From the beginning of our marriage, Graeme was a good worker around the home, but he was very restless. He would be up and down all the time, he could no longer relax, except perhaps when he was drinking.
21. Graeme would be totally unbending to the children; they had to follow his rules or they were in strife. They all rebelled against it and I was in the middle. You couldn't reason with him.
22. In the early years of our marriage Graeme's mother and father both said to me on a number of occasions that Graeme was behaving totally out of his previous character, in that he was angry all the time. They said that he had been a placid, relaxed child and teenager.
23. From my recollection, there was a clear contrast in Graeme's behaviour before and after he had been to Vietnam. Then over a period of about 2 years from late 1966 to 1968 there was a gradual increase in behaviour over this period although perhaps I noticed it more. It continued to slowly worsen over the next several years. I believe it reached a plateau for awhile from 1978 when Graeme and I had a big falling out and I threatened to leave. Shortly after this he was transferred from Perth to Kalgoorlie with the police and the whole family moved to Kalgoorlie. Once he was in Kalgoorlie, his behaviour improved to some extent. He was drinking quite a bit less and he picked up his sporting interests. I think this was partly because he had fewer people to drink with in Kalgoorlie.
24. We were in Kalgoorlie for three years until 1980 (sic), then we came back to Perth and he was posted at the Victoria Park Police Station, where he was in the Liquor and Gaming Branch. This was not a good time; Graeme would often be on duty out until 3 or 4 in the morning. He wouldn't sleep much and he was irritable and uncommunicative, picking on the children and me, when he would wake.
25. He left Liquor and Gaming in the late 1980s and Graeme improved, at least to the extent that he significantly reduced his drinking. He reduced his drinking still further when he retired and no longer drinks too much.
26. However Graeme's irritability hasn't changed and has continued to worsen. He keeps more to himself, which lessens the opportunity for stress, but he still abuses people for nothing. On our recent trip to Perth on the train he got really upset with some of the other passengers. His aggression is racially directed towards aborigines, Chinese and Vietnamese and yet he has certainly had aboriginal friends. It is just not rational, he makes comments without any reason or provocation and he can be quite vicious; it is very difficult for him to be in public or for me to be with him in public.
27. Since Graeme has retired, I notice the peculiarities of his behaviour more around the home. He is obsessive; everything has to be exact, he tidies his drawers and cupboards once a week; he removes leaves in the garden as soon as they fall. He has the compulsion of expecting everyone and everything to be perfect. The tidiness is not just his room; he also expects me to keep the house perfectly tidy and only sometimes gives me a hand.
28. Graeme still has difficulty with our 2 surviving children, although, as they have become older, they are a bit more understanding of his problems.
29. Graeme's difficulty in sleeping is exactly the same as it has always been. We have been in separate rooms for many years, because I can't bear to be continually woken up from his restlessness, but I still hear him often getting up and he complains about not sleeping.
30. We have talked about thinks since he started going to counselling; he has mentioned about Vietnam and thinks it was probably the cause of his problems. However, I don't really understand the conflicts within him, as he finds it impossible to talk about them."
29. Mrs Rafferty also confirmed that she had read a transcript of the oral evidence she gave at the previous hearing on 4 May 2001 and that that oral evidence was true to the best of her recollection. That transcript was tendered in evidence (Exhibit AR1, pp176-203). No additional oral evidence-in-chief was given by Mrs Rafferty.
30. In her oral evidence at the previous hearing Mrs Rafferty said that when she first met the applicant in 1965, he was a "very happy-go-lucky" kind of person, and was "lots of fun", "very easy to get on with" and "caring about his friends". She said that, at that time, the applicant's drinking behaviour appeared to be "normal" and not excessive. She said, however, that after the applicant returned from Vietnam in 1966 she noticed that he was "drinking a fair bit" and had a "lack of care of other people", including friends. She said that, during the first 2 years after she and the applicant were married (in September 1967), she found him "quite irritable, short-tempered, couldn't sort of cope with things".. She recalled an incident which occurred 2 days after they were married when he "screamed" at her and reduced her to tears because the alarm clock had been set incorrectly and they arrived late at the airport. She said that throughout their courtship she had never had an "inclination that he would do something like that". She added that that kind of behaviour on his part "occurred regularly" thereafter and she "put up with quite a bit of ... verbal abuse". She also said that, from the commencement of their married life, she was aware that he did not sleep well and was "up and down throughout the night" and was "restless".
31. Mrs Rafferty said that when the applicant joined the Police Force in 1973 his behaviour improved in that he became less aggressive, although he was still drinking. She said that his behaviour improved further when they went to Kalgoorlie in 1979 because he "got more into sports once again" and reduced his alcohol consumption. She added, however, that after they returned to Perth in 1981 "the trouble started again" when he went into the Liquor and Gaming Branch of the Police Force and his drinking went "from bad to worse" during the 7-8 years that he spent there.
32. Mrs Rafferty said that the applicant's anger and intolerance of other people have gradually become worse over time and that now he has "completely closed himself off from other people" and "just doesn't want to contact anyone". She said that the applicant "doesn't have any interests outside the house" and that the only thing that he is interested in is his garden.
33. Mrs Rafferty was cross-examined regarding aspects of the oral evidence she gave at the previous hearing but she generally adhered to that evidence and did not alter or qualify it in any significant way.
THE MEDICAL EVIDENCE
Dr M Woodall
34. Dr M Woodall, Consultant Psychiatrist, confirmed that he had given evidence at the previous hearing on 4 May 2001 and, having read a transcript of that evidence, he also confirmed the accuracy of that evidence. That transcript was tendered in evidence (Exhibit AR1, pp159-175). Dr Woodall also confirmed that he commenced treating the applicant in October 1996 and had prepared various reports regarding the applicant psychiatric condition. Those reports will now be set out.
35. A report of Dr Woodall, dated 19 October 1998, addressed to Dr Brian Dare, Health and Welfare Department, WA Police, states:
Thank you for your request for a report regarding Mr Rafferty's medical condition, his treatment and prognosis ....
Mr Rafferty was initially referred by his general practitioner Dr Dick Reid and I first assessed him on the 25th October 1996.
At that time Mr Rafferty described difficulties with low tolerance of other peoples' behaviour with irritability and aggressive over-reaction to minor precipitants. These feelings of anger had been increased significantly since the death of his son in 1994 (sic). Mr Rafferty had been involved in group sessions with Police Health and Welfare and been taught various relaxation techniques, which he did not find generally helpful.
He described some symptoms of anxiety and depression and understood that he experiences difficulty because of his high exceptions (sic) of himself and others with significant obsessional and driven qualities to his personality. He finds it difficult to accept the unfairness of the world and his major symptoms were those of a negative and critical attitude with anger easily being triggered by minor changes in routine with a low tolerance to frustration.
His background is characterised by multiple losses which no doubt have predisposed him to developing the symptoms that he has which have been precipitated by events after he had been in the police service.
Treatment was commenced with Paroxetine to which he reported some reduction in irritability and angry outbursts. Fortunately, Mr Rafferty was working in a supervisory position in Cannington which allowed him the benefit of job satisfaction whilst isolating him from contact with the public and allowing some tailoring of his duties to ensure that he could function adequately in those tasks.
He has from time to time required periods of leave where his levels of irritability tensions and distress have been high. Unfortunately once out of the work environment these have generally reduced to levels that have allowed him to resume work.
His symptoms are quite chronic and I do not feel that there is additional treatment that would offer much additional benefit. Mr Rafferty has always been willing to undertake anger management courses and been compliant with medication. It is clear that he is unable to work in a full-time position with a full range of duties and that contact with the general public would be undesirable.
I was hopeful that Mr Rafferty would be able to continue with his current position at Cannington, which he coped with reasonably well and felt productive in albeit with the need for time off work from time to time. Given the extent of his symptoms however, I did not feel that this was excessive and Mr Rafferty always remained well motivated to continue with work.
Should his current position no longer be available I would recommend that rehabilitation be considered to allow him to return to work."
(Exhibit R4) A report of Dr Woodall, dated 2 February 2000, which supplements the above report, states:
"I wish to advise that a report to Dr Brian Dare prepared by me on 19th October 1998 was written in response to a specific request from Dr Dare for a report regarding Mr Rafferty's retirement from the Western Australian Police Service, due to ill heath. Although a diagnosis is not formally made, the symptoms that he has been experiencing for many years are outlined in addition to some of the factors relevant to his police service that are aetiologically significant. The symptoms described of anxiety, depression, irritability and angry outbursts are symptoms of Post Traumatic Stress Disorder. A specific diagnosis was not included in the report as the Police Service always obtain an opinion from another psychiatrist in these cases and this indeed occurred with Mr Rafferty.
As is often the case with patients with Post Traumatic Stress Disorder, symptoms relevant to understanding the development of their condition are only gradually revealed, often because of the accompanying sense of shame and a tendency to emotional detachment. Certainly in Mr Rafferty's case the early stages of treatment were focused on symptomatic relief such that he could continue to work as a police officer and particular emotional reactions such as occurred when he was posted to HMAS Tarangau did not become evident until 1999, when Mr Rafferty was not longer subject to the pressures of work."
(Exhibit AR1, p208)
36. A report of Dr Woodall, dated 24 January 1999, addressed to the DVA, states:
"Mr Rafferty was referred to me by his general practitioner as a serving police officer for continuing management of problems of depression and anger, which have been present for several years.
Mr Rafferty described increasing difficulty with low tolerance for other people's behaviour. He described himself as irritable and would aggressively over-react to minor incidents. He described himself of as being `explosive' and he felt that he could not be bothered with many things that he had done previously. He reported low energy and has reduced the amount of contact he has with other people and has significant loss of job satisfaction.
Mr Rafferty has significant symptoms of anxiety with high levels of tension and a tendency to worry excessively. At times he reports hyperventilation and feels restless and unable to settle. There has been increasing difficulty with his concentration and he finds it hard to persist with tasks for more than several hours. He is readily frustrated and there has been an increasing lack of interest in activity, which he previously enjoyed. He rarely socialises and is alienated from others with his relationship with his wife and children having been profoundly affected.
Mr Rafferty reports intrusive phenomena with regular recall of some of the traumatic events to which he was exposed during his operational service aboard ship in Vietnam. He has marked difficulty with sleep, which dates back to the time of his service in the RAN, and his sleep pattern is characterised by initial insomnia, interrupted sleep and early morning wakings. He reports nightmares, the contents of which is his traumatic experiences.
Mr Rafferty is the third of four boys with his older brother having died in 1963 in a motor vehicle accident. His next brother was murdered and he has occasional contact with his younger brother who is an accountant. He grew up in Perth and reported average performance at school feeling he could have done better if he applied himself. He reports a good relationship with both parents who are deceased.
Mr Rafferty enlisted in the RAN at the age of 17 on 6th January 1964. He worked as a storeman for one and a half years prior to enlisting. At the age of 17 whilst on a tour of duty in Malaya and Singapore Mr Rafferty was lookout sentry in an open bridge on HMAS Vampire. HMAS Vampire went through two typhoons with Mr Rafferty lashed to the ship structure so that he could carry out his duties in extremely rough seas. During replenishment at sea with HMAS Supply he was on deck and in very rough weather again, slipped and nearly fell over the side. He felt extremely vulnerable and fearful, however, continued to carry out all his duties.
Whilst sentry while the ship was at anchor in Singapore harbour the ship was on full alert. Mr Rafferty patrolled the deck with a wooden batten and whistle and described extreme anxiety, which he concealed from others. His experiences led Mr Rafferty (sic) feeling unsafe as seaman and he requested a transfer into the communications branch as a radio operator, this resulting in him not having to carry out seaman duties.
Mr Rafferty was accepted into the communication branch and was posted to HMAS Yarra in 1996 after six months training. He served in Vietnam and recalls being told that they would be escorting HMAS Sydney to Vietnam and would not be permitted to fire unless fired upon. A lot of gunnery practice was undertaken prior to entry into Vietnamese waters and Mr Rafferty felt that the ship was a `sitting duck' for the North Vietnamese. He was assigned as a radio operator in one of the boat crews whose job was to circle the ship dropping scare charges into the water whilst divers searched for enemy mines. Most of Mr Rafferty's duties were action stations in radio operations rooms. He was closed off from the view of the rest of the ship and would often hear explosions outside without knowing what exactly was happening. He was fearful of the danger he was in and described the development of difficulty sleeping. Mr Rafferty was relieved when the ship left Vietnam waters and describes the development of symptoms at this time with poor sleep, excessive worry and thoughts of potential death and fear for his life. He began to isolate himself from others and his alcohol consumption increased significantly. He was posted to HMAS Tarangau on Manus Island off the coast of New Guinea. He began to experience recurring memories and nightmares and explosive behaviour with mood disturbance and anxiety became very evident. At that point he was charged and disciplined under Navy regulations as a result of an incident in which he states he `lost it'.
Mr Rafferty did not seek medical attention at this time as he felt that he would be humiliated by others seeing him as being unable to cope. He also felt it may affect any potential promotion.
Between 1968 and 1970 Mr Rafferty was posted to RAF Base Selater in Singapore. This was a top secret spy base where he intercepted Vietnamese morse code and air traffic, work involved in determining the true movements of the Vietcong in Vietnam. Mr Rafferty found this stressful as it made him aware of the vulnerability of Australian Navy ships in Vung Tau and experienced marked feelings of helplessness at knowing information about the threat to others and being unable to use it to warn people.
Mr Rafferty left the RAN as he was concerned at the time he was spending away from his family having married with three children and also due to his anxiety that he may have to return to Vietnam.
Mr Rafferty has worked for 25 years as a Police Officer and during this time has had to deal with further traumatic incidents which have served to maintain the symptoms he developed whilst serving in the RAN. His condition has gradually deteriorated and he is now no longer fit for police service. He has been a conscientious, hard working person who always tended to keep his feelings to himself. His health has been good without any serious illnesses or operations. His eldest son committed suicide in 1992 and he has features of unresolved grief over this with an unsatisfactory relationship with his other son aged 28. He has a daughter who lives with her boyfriend in Waroona in Western Australia.
Mr Rafferty presents with symptoms consistent with a diagnosis of Post Traumatic Stress Disorder. He meets DSM4 Criteria for this condition and the commencement of symptoms can be traced back to his service in the RAN. His family traumas and subsequent experience of traumatic situations in his position as a policeman has served to exacerbate his symptoms which have had a significant impact on his ability to work and enjoy family life and social contact with others. Mr Rafferty is currently unfit to continue his occupation as a police officer and will need continuing treatment including counselling and anti-depressant medication, which he has been taking for the past two years."
(Exhibit AR1, pp52-54)
37. A further report by Dr Woodall, dated 26 August 1999, addressed to the DVA, states:
"Further to my previous report outlining Mr Rafferty's symptoms which are consistent with a diagnosis of Post Traumatic Stress Disorder, I wish to provide further details regarding his experience of stressors whilst on operational service in Vietnam.
Mr Rafferty served with the Royal Australian Navy from 6th January 1964 to the 5th January 1973 having joined at the age of 17 years. As previously noted in my report Mr Rafferty described stressful experiences on HMAS Vampire when the ship went through two typhoons and on an occasion in heavy seas when he nearly fell overboard when the ship was replenishing with HMAS Supply. Although describing anxiety at the time there was no evidence of continuing symptoms as a result of these events.
Mr Rafferty undertook operational service in Vietnam from 25th April 1966 - 9th May 1966 and 30th May 1966 - 9th June 1966. During his service in Vietnam Mr Rafferty served as a radio operator holding the rank of able seaman. He served on HMAS Yarra and thought that his life was under threat on several occasions. HMAS Yarra was assigned to escort HMAS Sydney to Vietnam and with it entered Vung Tau harbour. The ship was at anchor and a target for the North Vietnamese due to the proximity of the ship to land. Ships in the harbour were within range of both mortar and rocket fire and he felt that the ship was a sitting duck at anchor. In addition crew had been told that for the safety of the divers who searched the ship for enemy mines, the ships turning gear was engaged. This would require 15 to 20 minutes for the ships engineer to disengage the turning gear and get the ship under way should an attack occur. He found this stressful as he had been informed that the clearing diving team station in Vung Tau had on occasions discovered enemy mines in the area.
During one of Mr Rafferty's four hours on duty, he was assigned to one of the motor boat crews which circles around the Yarra. His job was to throw scare charges into the water and to assist with towing and aniswimmer/diver device (sic). These duties were performed because of the very real threat of enemy underwater swimmers. Part of this duty was carried out during the hours of darkness resulting in Mr Rafferty feeling intensely fearful and helpless.
At other times Mr Rafferty's duties were at action stations in the wireless office. He was closed off from view of the rest of the ship and would often hear explosions outside without knowing exactly what was happening and how much danger he was in. The captain of HMAS Yarra had stated that they would not fire upon the enemy unless fired upon first leading to further levels of anxiety and fearfulness.
Mr Rafferty developed symptoms of anxiety during this time and when off duty had difficulty with sleep due to his feelings of fear and helplessness, not knowing whether explosions he could hear under water were attacks on the ship or not.
During his second tour on HMAS Yarra into Vietnamese water the ship did not enter Vung Tau harbour, however, he noticed a worsening of sleep disturbance at that time. HMAS Yarra also acted as a screen escort for the HMAS Melbourne during flying operations and was involved in searching for a missing pilot who had gone into the sea.
Following Mr Rafferty's service in Vietnam he was posted to HMAS Tarangau on Manus Island off the coast of New Guinea. He continued to experience symptoms of anxiety with more evidence of mood disturbance, recurring memories, alcohol abuse and explosive behaviour. At that point he was charged and disciplined under Navy Regulations as a result of an incident in which he lost control. No medical attention was sought as he felt he would be humiliated by others seeing him as being unable to cope. He was also concerned about the effect this may have on any potential promotion.
Between 1968 to (sic) 1970 Mr Rafferty was posted to RAF Selater in Singapore. This was a secret communications base where he intercepted Vietnam morse code and air traffic. The work involved in determining the true movements of the Vietcong in Vietnam which Mr Rafferty found stressful as it brought back vivid memories of his feelings of vulnerability and helplessness whilst aboard ship in Vung Tau harbour. He experienced marked feelings of anxiety at knowing information about the threat to others being unable to use this to warn people.
Mr Rafferty informed me that the anxiety he felt about going back to sea and possibly to Vietnam were relevant in his decision in apply for a discharge from the Navy.
Mr Rafferty's further service as a police officer for 26 years exposed him to further traumatic incidents which maintained the symptoms he developed whilst serving with the RAN in Vietnam. His condition has gradually deteriorated and he is now no longer fit for police service. He has been a conscientious hard working person who has always tended to keep his feelings to himself. His health has been good without any serious illness or operation.
Mr Rafferty presents with symptoms consistent with a diagnosis of Post Traumatic Stress Disorder. He meets DSM4 Criteria for the condition and the commencement of his symptoms can be traced back to his operational service with the RAN in Vietnam. His family traumas and subsequent experience in the police service has served to exacerbate his symptoms which have had a significant impact on his ability to work, enjoy family life and maintain social contact with others.
Mr Rafferty has been having treatment for two and a half years. This will need to continue and includes counselling and anti-depressant medication. He has been on medical leave since October 1998. In my view Mr Rafferty is totally and permanently psychiatrically disabled and I had recommended to the WA Police Service that he be considered for retirement on medical grounds."
(Exhibit AR1, pp73-75)
38. A report of Dr Woodall, dated 3 May 2001, addressed to the applicant's solicitor, states:
"Thank you for your letter dated 28th January 2001 regarding Mr Rafferty's claim. I have reviewed my records which date from my initial assessment of him on the 25th October 1996. At that time Mr Rafferty was serving as a police officer and the early stages of treatment were focused on symptomatic relief so that he could continue to work. Mr Rafferty is not a man who readily reveals his emotional state and history relevant to understanding the development of his condition was only gradually revealed, particularly because of an accompanying sense of shame and tendency to emotional detachment.
I have considered the Criteria utilised in the Fourth Edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM4) and the Department of Veterans' Affairs Statement of Principles concerning Post Traumatic Stress Disorder. I have also considered the criteria for diagnosis of Post Traumatic Stress Disorder in the Tenth Edition of the International Classification of Diseases (ICD10).
Mr Rafferty has clearly described the intense fear that he felt whilst he was serving on HMAS Yarra in Vietnam accompanied by feelings of helplessness and sleep disturbance. Symptoms of restlessness and tension, concentration difficulties, irritability and prominent sleep disturbance have continued from that time. These symptoms have fluctuated in severity and Mr Rafferty has identified particular events that have occurred later in life that have exacerbated his symptoms. He noted that during the second tour on HMAS Yarra into Vietnamese waters in which the ship did not enter Vung Tau harbour, his sleep disturbance and other symptoms became worse. Events that have occurred later in his life have also been associated with exacerbation of his symptoms for varying periods of time.
Mr Rafferty was exposed to situations prior to his service in Vietnam when he was on HMAS Vampire. He gives a clear description of anxiety symptoms on occasions when the ship went through two typhoons and on another occasion in heavy seas when he nearly fell overboard during replenishment at sea with HMAS supplies (sic). Although describing anxiety at the time there was no evidence of continuing symptoms as a result of these events.
Although Mr Rafferty's response to the situation in Vung Tau harbour involved intense fear and helplessness, he was not directly confronted with events that involved actual threatened death or serious injury or a threat to the physical integrity of others. Mr Rafferty certainly perceived himself to be under threat based on information given to the ship's company and his own awareness of precautions being taken to counter possible enemy attack.
In reviewing the history and information obtained, I do consider that Mr Rafferty would meet Criteria for Generalised Anxiety Disorder. Mr Rafferty had certainly been exposed to a stressful event, which resulted in the development of symptoms at the time of his exposure. These did not resolve and were associated with changes in behaviour when he was posted to HMAS Tarangau resulting in him being charged and disciplined under navy regulations. The symptoms that Mr Rafferty experienced and which he continues to suffer from include excessive anxiety and worry which he finds difficult to control and which is associated with prominent irritability, sleep disturbance, restlessness and concentration difficulties. I would note that a diagnosis of Generalised Anxiety Disorder is not made when the symptoms occur exclusively during Post Traumatic Stress Disorder. This Criteria highlights the fact that symptoms consistent with a diagnosis of Generalised Anxiety Disorder show a large overlap with symptoms of Post Traumatic Stress Disorder.
Mr Rafferty's symptoms of Generalised Anxiety Disorder have clearly caused clinically significant distress with his seeking specialist psychiatric care since 1996. His symptoms have led to impairment in his social and occupational functioning. He has evidence of impairment in his relationship with his wife and family members and has few friends or interests generally. The impact on his police career has led to his discharge on the grounds of medical unfitness due to Mr Rafferty's limited response to treatment.
As requested I have completed the Emotional and Behavioural Medical Impairment Worksheet of the Guide to the Assessment of Rates of Veterans' Pensions (5th Edition)."
(Exhibit AR1, pp209-210) The Worksheet referred to the final paragraph of the above report was also tendered in evidence (Exhibit A1). The "final impairment rating" for the condition of Generalised Anxiety Disorder, which Dr Woodall diagnosed in respect of the applicant, was determined by Dr Woodall to be 43, which he said represented a "moderately severe psychiatric disorder".
39. In his oral evidence at the previous hearing on 4 May 2001 Dr Woodall said that his treatment of the applicant comprised the prescription of anti-depressant medication, and psychotherapy which was "focussed on trying to elucidate what factors were relevant in the development of his condition and also assisting him in coming to terms with a number of events that occurred in his life". He said that the latter was a "particularly slow process because of his tendency to maintain fairly tight emotional control over things".
40. Dr Woodall was questioned, at the previous hearing, regarding his initial diagnosis of PTSD, and his subsequent diagnosis of Generalised Anxiety Disorder ("GAD"), in relation to the applicant's condition. His evidence in that regard was as follows:
"MR CHRISTIE: Now, Dr Woodall, as you no doubt recall, you initially diagnosed Mr Rafferty with Post Traumatic Stress Disorder and in your most recent report diagnosis is Generalised Anxiety Disorder?---Hm mm.
And I understand that these are both within the spectrum of the general classification of Anxiety Disorders?---Yes.
Perhaps you could, for the Tribunal's benefit, describe the nature of an anxiety disorder and describe the differences between the two and the reasons for the change in diagnosis?---Right. There are a number of separate diagnostic categories which are subsumed under the general heading of Anxiety Disorders, and those include Post Traumatic Stress Disorder, Acute Distress Disorders, Generalised Anxiety Disorder, Obsessive-Compulsive Disorder. And they're considered to be anxiety disorders in that a common feature of all of the conditions is the presence of anxiety symptoms. Those are both psychic symptoms, which include apprehension, sense of fear, dread or worry and physical manifestations of anxiety which include autonomic overactivity, prominently tachycardia or sweating or shaking and those types of symptoms. Within those categories there is often a degree of overlap and it's fairly unusual to see someone who has symptoms exclusively from one condition or another. Some of the conditions are separated one from another by the identification of particular aetiological factors and certainly acute stress disorder and post traumatic stress disorder, the presence of a stressor, defined by certain criteria, is considered essential to make the diagnosis. So occasionally one comes across the situation of interviewing someone who has all the symptoms of a particular disorder but may not need (sic) the criteria because a particular stressor, for example, cannot be identified. Sometimes that actually occurs because their recollection of the stressor has in fact been affected by the very event itself. Often a patchy or incomplete recollection is present in certainly severe post traumatic stress disorder. Generalised anxiety disorder as a condition includes apprehension and anxious expectation, along with a number of somatic symptoms of anxiety, irritability, motor tension, restlessness are included. And all of those symptoms are commonly seen in post traumatic stress disorder. It would be extremely unusual to find someone who had a diagnosis of post traumatic stress disorder who did not also meet criteria for a diagnosis of generalised anxiety disorder. Because of the nature of classifications, one is considered hierarchically to be on top of the other and so if you have features, or if you meet criteria for a diagnosis of post traumatic stress disorder, then the other diagnosis of generalised anxiety disorder is not made even though all the features may be there. That is a fairly common hierarchical consideration within psychiatric criteria. Certainly obtaining a history from Mr Rafferty of the full range of symptoms that he experiences took time. Understanding the stressors that he had experienced in his life, both from more recent years right through to events in his service life, took even longer and understanding the relative impact of them also took some time. My initial diagnosis of post traumatic stress disorder was made because a particular experience he had whilst serving on HMAS Yarra and being in Vung Tau Harbour was something that he described as being re-experienced - his thoughts would turn to this experience from time to time. Probably more so since we touched on it in the history taking and again, that's a feature that I tend to see with veterans. They often shelve or put aside experiences and sometimes actually avoid coming in for assessment and treatment because of the - the effect that that has on increasing the experience of symptoms. One of the actual criteria for post traumatic stress disorder is a tendency to avoid conversations or discussion of events that actually represent traumas. In considering the criteria for a stressor, Mr Rafferty's experience, while that of intense fear and an awareness of very real threat based predominantly on the instructions that the crew had been given and the precautions that he could see were being taken, was very evident. What, however, didn't occur during that time was any actual threat to his life. He was not, for example, shot at or fired upon. They did not come across any evidence of a threat to the ship at that time. And in that regard, he would not be considered to meet criteria for that particular stressor. His own description of the circumstances and his own emotional reactions I felt would be consistent with the consideration of a stressor that leads to the development of a generalised anxiety disorder, so that he has been through a process which has led to the development of symptoms and those have been evident, certainly, from his history and continued beyond that exposure. Interestingly, he highlighted a couple of other experiences where he was aware of manifestations of anxiety and he gave examples of being in a typhoon when in the - I think he was on watch at the time or in the wheelhouse, and he was aware of anxiety about the potential risk in that situation. However, his symptoms subsided and didn't persist beyond that experience. He describes another incident during replenishment at sea when he slipped and felt he might might fall between the supply ship and his own ship. And again, he was aware of apprehension which was understandable but settled. And I guess that's the difference between psychiatric disorder, in which symptoms continue beyond a situation, and what is essentially a normal reaction to a situation which involves a degree of risk and anxiety. So that was the reasoning behind my consideration of the different categories of diagnosis.
And when you originally diagnosed post traumatic stress disorder, it was the event in Vietnam that you considered was the stressor, rather than perhaps the death of his son or the typhoons or some other event?---That struck me as prominent in the sense in which it was re-experienced. He had certainly had quite a long period of time where the death of his son was associated with understandable and appropriate grief symptoms and certainly part of the symptoms of grief is a tendency to think about the person who's died, to be aware of situations in which they might just walk in a door. All of that followed a fairly - well, I wouldn't say a typical time course. It was rather prolonged and that's not unusual given the circumstances of his son's death. There was a lot of questioning as to the reasons why, but that sense of grief has gradually diminished. There are still some aspects of his son's death which - which do cause emotional distress, particularly, I guess, the sense of personal involvement in whether anything could have been done to change the circumstances, and I think that also relates to the experience of a father of the children and whether they had any regrets about events that had occurred. But the situation serving on HMAS Yarra was more truly re-experienced in the sense that post traumatic stress disorder incidents are.
Now, your current view is that the correct diagnosis is generalised anxiety disorder, is that right?---In terms of strictly applying a set of criteria, yes, those would be - that would be the condition that he meets criteria for."
(Exhibit AR1, pp 160-162) Dr Woodall was then referred to Statement of Principles ("SoP") concerning Generalised Anxiety Disorder (Instrument No 48 of 1994) ("the 1994 SoP") determined by the Repatriation Medical Authority ("RMA") under s196B(2) of the Act, and, in particular, to the definition of "generalised anxiety disorder" set out in clause 4 of that SoP. Dr Woodall's evidence was that the applicant's condition met all of the elements of that definition. Furthermore, Dr Woodall agreed that the applicant had experienced a "stressful event" (as defined in clause 4 of the 1994 SoP) during his service in Vietnam and that he had developed GAD (as defined in that SoP) within 2 years thereof.
41. Dr Woodall was referred by the Tribunal to the current relevant SoP, namely SoP concerning Anxiety Disorder (Instrument No 1 of 2000) ("the 2000 SoP") and, in particular, to the definition of the phrase "severe psychosocial stressor" in clause 8 of that SoP. Dr Woodall opined that the applicant had experienced a "severe psychosocial stressor" (as so defined) in Vietnam in that there was an "identifiable occurrence" or a particular circumstance or situation, and the feelings that were evoked thereby in the applicant were certainly of "substantial distress". Dr Woodall further opined that the applicant's psychiatric condition also met the criteria for "anxiety disorder not otherwise specified", as defined in clause 8 of the 2000 SoP. He concluded:
"... I've no doubt he has an anxiety disorder, ... ".
Exhibit AR1, p172)
42. At the re-hearing, Dr Woodall confirmed that he had treated the applicant from October 1996 until early 2002 and that the applicant's condition did not change significantly during that period. He said that he had prescribed Paroxetine ("Aropax"), 30-40 mg per day (the "standard dose" being 20 mg per day), which significantly improved some of the applicant's anxiety symptoms and irritability but did not completely resolve those symptoms. Asked whether he would expect the applicant's symptoms to be more severe without medication, Dr Woodall responded:
"Very much so".
(Transcript, p67) Dr Woodall was questioned about the commencement of his treatment of the applicant and its subsequent course. His evidence was as follows:
"Now, going back to when you first saw Mr Rafferty, which I think was quite a long time ago, in 1996?---1996, yes.
Yes. Can you recall the stated purpose at that time for him coming to see you?---He was initially referred purely for treatment. He had undertaken anger management programs with the Police Service and he had come to seek assistance after a particular incident that occurred in relation to football, where one of the medical officers there had some familiarity with veterans and actually encouraged him to seek help.
The - the aim was to try and improve his level of symptoms so that he was getting on better with people and wouldn't again run into the same difficulties that he had had, both with his social activities and football but also with his workplace.
And the symptoms that were of concern at that time were symptoms relating to anger?---The anger was certainly the prominent one.
Okay. And did your initial assessment at first consultation involve events in Vietnam?---I do not recall if we specifically went into the details of those events. Mr Rafferty was seen quite frequently on a number of appointments in order to gather the history. He was not a man who revealed much of his emotional state very readily and indeed had the medical officer not strongly recommended he seek treatment I doubt that he would have done so. I think Mr Rafferty had a particular respect for that medical officer and that played a large part in his decision to seek treatment. So at what point we discussed Vietnam I'm - I'm not sure without reference to my specific clinical notes.
Is it something that developed over a period of time or can't you say?---Details emerged over a period of time, particularly details of Mr Rafferty's emotional reactions. He was quite good at giving a history of the facts of things, very much more reticent or reluctant to reveal just the extent of his own emotional responses. And the immediacy or the immediate concern that he had was how he was reacting to people in the here and now, rather than thinking about events of -- of some 30 years previously.
And from your point of view in treating someone, is it an important part of treatment or is it simply of academic interest to trace the possible causes of what may be causing the current symptoms?---The aetiology or psychiatric disorders is less critical in - in treatment than it is in some other medical conditions, particularly over a long history establishing the significance of particular events on someone's emotional state and psychological function. It does take a long period of time, so treatment may well be commenced on the basis of a provisional diagnosis. Hypotheses are then generated about what the possible causes of that may be and explored as more history and a better, closer relationship is developed.
And there is certainly evidence from the statements made by Mr Rafferty about the time of his retirement that his work for the first 15 years or so with the Police Force was reasonably uneventful and successful and the deterioration, and particularly in relation to irritability and anger was more progressive over the last 10 years or so. Does that fit in with the history?---Yes, yes.
Is that in any way inconsistent with your diagnosis that there has been a generalised anxiety disorder relating back even earlier than his Police Service, back to Vietnam in 1966?---No, he does have symptoms that continue on from the time of his military service. As I indicated earlier, the severity of symptoms can fluctuate. Generalised anxiety disorder per se does not usually interfere with people's occupation. It may make life subjectively much more difficult for them, again depending on the severity of - of symptoms.
The other factor is that - and this has been drawn out I think by all of the psychiatrists - is that there have been a number of events that have occurred in Mr Rafferty's life which have, at periods of time, produced an impact on his emotional state and psychological function. Some of those have resolved and others have led to periods of exacerbation of his symptoms of generalised anxiety disorder.
But in summary, you see the generalised anxiety disorder as having effectively established itself in the first period of some years after or period after the trip to Vietnam?---Yes, certainly there are certain symptoms which can be identified as having occurred at that point in time and they have - have continued on.
And it has never completely gone away?---No, it has never completely resolved."
(Transcript, pp69-71)
43. In cross-examination, Dr Woodall was asked to explain his change of opinion as between his report of 24 January 1999, in which he opined that the applicant's condition meets the DSM-IV diagnostic criteria for PTSD, and his report of 3 May 2001, in which he opined that the applicant's condition instead meets the diagnostic criteria for GAD. He explained that, with his accumulated experience of treating veterans who had experienced traumatic events, his opinion or understanding regarding the nature of the stressor that must have been experienced in order to make appropriate a diagnosis of PTSD had changed.
44. When asked on what he based his opinion that the applicant was suffering from GAD during his period of service on HMAS Tarangau from September 19666 to September 1967, Dr Woodall said that the applicant had reported to him that he continually had high levels of tension and irritability, as well as sleep disturbance, during that period, and he was consuming alcohol heavily at that time. He added that it is common for people with high levels of tension and anxiety to "medicate themselves with alcohol", but that such "self-medication" is inappropriate because "ultimately alcohol only makes the problem worse". As regards the applicant's sleep disruption, Dr Woodall said that this was not being caused solely by nightmares or intrusive recollections; rather, his sleep was generally much lighter and he awoke more readily and more frequently. When asked whether the applicant's worrying at that time was concerned solely with his Vietnam experiences, Dr Woodall responded that the applicant was "also worrying about his relationship with other people at work" and that his irritability was also affecting that. It was put to Dr Woodall, however, that the applicant had himself testified that, during his service on HMAS Tarangau, he did not have any worries, other than about the events in Vietnam, in his life at that time, and Dr Woodall accepted that that evidence was inconsistent with the applicant's having GAD at that time.
45. Dr Woodall was referred to his report dated 19 October 1998 (Exhibit R4), addressed to Dr Brian Dare, Health and Welfare Department, WA Police, regarding the applicant. He acknowledged that that report does not refer to the applicant's Vietnam experiences. He explained, however, that that report was a "standard report" dealing with the diagnosis of the applicant's condition, the treatment he was receiving for that condition, and the likelihood of his continuing to be able to work with the Police Service. [The Tribunal notes that Dr Woodall explained the contents of that report in his subsequent report of 2 February 2000 (Exhibit AR1, p208) - see paragraph 35 above.]
46. In re-examination, Dr Woodall reiterated that the most prominent of the symptoms which the applicant was suffering in association with his anxiety and worry were restlessness, feeling keyed up or on edge, irritability and difficulty in sleeping. He also confirmed that clinically significant distress had been present in his contact with the applicant, and, furthermore, that there had been periods of time in which his social and occupational functioning had been impaired. As regards the matter(s) about which the applicant was worrying - in particular, during his period of service on HMAS Tarangau, Dr Woodall said that the history he took from the applicant indicated that his "Vietnam experience played a large part in some of his fears" but that also experienced anxiety regarding his relationship with colleagues at work. Dr Woodall reiterated that it was his opinion that the applicant suffers from a generalised anxiety disorder but that, on the assumption that that diagnosis was inappropriate because the applicant's anxiety and worry were concerned with a specific event rather than a number of events, he opined that the alternative diagnosis, "anxiety disorder not otherwise specified", would encompass the applicant's condition. He said that another possible diagnosis was "adjustment disorder with anxiety" but that, in his opinion, that diagnosis was inappropriate in the applicant's care.
Dr O Kay
47. Dr Kay, Psychiatrist, said that the applicant was initially referred to him "for a second medico-legal opinion rather than treatment" but that he commenced treating the applicant in June 2002 and had been seeing him approximately monthly since then. He confirmed that he had prepared 2 reports regarding the applicant, dated 8 April 2002 and 9 September 2002, and that those reports accurately reflected his assessment of the applicant.
48. Dr Kay's report of 8 April 2002 (Exhibit A2), addressed to the applicant's solicitors, states as follows:
"Following your request for a second psychiatric opinion on Mr Rafferty, I have examined him on 3 occasions, initially on 26th February 2002 for approximately one hour and subsequently on the 14th March & 8th April 2002 for approximately half an hour each. In addition to examining Mr Rafferty, I also had the opportunity to obtain a corroborative history from his wife and to peruse the T Documents which included several opinions from my colleague, Dr Michael Woodall.
Mr Rafferty is a 55 year old, married, retired Police Sergeant. He presented as an over-anxious man who was uncomfortable during his appointments with me. His degree of uncomfortableness varied but was particularly evident when discussing his two brief visits to Vietnam with the Royal Australian Navy and I noted that he was less distressed when talking about other difficult experiences in his life, including his experience of a typhoon in the South China Sea on an RAN Ship prior to his Tour of Duty in Vietnam, the death of his father, the suicide of his son and, difficult experiences of a traumatic nature which occurred during his service in the WA Police Service.
I note Mr Rafferty faced Disciplinary Action in the Navy subsequent to his service in Vietnam, but then was able to join the WA Police Service and ultimately be promoted to the role of Senior Sergeant (sic). My view is that something disturbed his usual personality function around the time of his Vietnam war service, continued to do so for some time afterwards, then his condition subsequently improved to a degree which allowed him to continue functioning for a good number of years until his final years in the WA Police Service when he again fell apart.
Mr Rafferty gave an account of being excessively anxious during his time in Vietnam, although he was clearly not exposed to stresses sufficient for the genesis of a Post-Traumatic Stress Disorder. Over the years, I have had a number of patients who had difficulties coping with similar experiences in Vietnam and, I suspect that whatever may have actually been the case, there was a myth which permeated the men who served in the Navy in Vietnam as to the environment in Vung Tau Harbour. Many of them have told me of the risk of floating mines, enemy frogmen and American ships being sunk by Viet Cong mines. Whether this was actually the case or not, among the serving Navy men at the time, there was clearly a strong belief that it was so.
The issue of throwing `scare' charges into the water, to which Dr Woodall refers in his letter to the Department of Veterans' Affairs dated 26th August 1999, is important to Mr Rafferty (also to other patients of mine), to the extent that, whatever the mines were expected to achieve in terms of fending off the enemy, they clearly had an anxiety provoking effect on the Australian Naval personnel on active service in Vung Tau Harbour.
Mr Rafferty gives an account consistent with an acute Anxiety Disorder being present in Vietnam, but no account of sufficient symptoms for such a diagnosis prior to his service there. Specifically -
Ø he described himself as being excessively anxious and worrisome,
Ø his anxiety and worry persisted for a number of months after his service in Vietnam, by my estimate, more than 6 months,
Ø he found it difficult to control his worry, in fact, he attempted to do so with recourse to alcohol which probably had the effect of making life worse for him (and probably also qualified him for a diagnosis of Alcohol Abuse),
Ø his worry was associated with a number of physical symptoms including -
* restlessness,
* being keyed up and feeling on edge,
* difficulty concentrating,
* irritability,
* muscle tension and,
* definite sleep disturbance,
Ø these symptoms not being due to another disorder, in particular, not being due to Post-Traumatic Stress Disorder and,
Ø these symptoms caused him significant impairment in occupational and social functioning.
These symptoms were not the result of Mr Rafferty's Alcohol Abuse, rather they were the cause of his Alcohol Abuse.
I am of the opinion that Mr Rafferty suffered from a Generalised Anxiety Disorder at the time, but did not suffer from the same condition at any time before his time in Vietnam, although it is likely that a number of factors, including being on a Navy ship at the time of a typhoon, would have predisposed him to the subsequent development of an Anxiety Disorder. Subsequently, as previously stated, Mr Rafferty's Anxiety Disorder persisted for at least 6 months, probably more in the order of 2 years, before diminishing to a certain degree, although Mrs Rafferty is of the opinion that Mr Rafferty never returned to his pre-morbid self, particularly in relation to his sleep disturbance.
I understand my colleague, Dr Woodall, made an initial diagnosis of a Post-Traumatic Stress Disorder. In my experience, this is not uncommon in patients who suffer from a Generalised Anxiety Disorder secondary to war service and whose condition is of many years chronicity, as the two conditions are so closely related and, from a practical psychiatric sense, the differentiation is of little clinical consequence. Specifically, Mr Rafferty has some symptoms of avoidance and some re-living experiences, and I noted his re-living experiences were more to do with his experiences in Vietnam than of any other time in his life, however, I do not believe he satisfies criteria A1 (of the DSM IV diagnostic criteria), for the diagnosis of PTSD, ie, that he experienced, witnessed or was confronted with events which involved actual or threatened death or serious injury to his physical integrity or to himself.
Of interest to note is that, in his subsequent professional life in the WA Police Service when Mr Rafferty was confronted with traumatic experiences, he does not seem to have internalised these experiences, rather it seems that what happened during his time in the Navy has blocked, by some mechanism or other, his capacity for other (perhaps more significant) traumatic experiences to significantly destabilise him, ie, the fact that he did develop a severe Generalised Anxiety Disorder seems to have prevented him from developing a subsequent Post-Traumatic Stress Disorder.
...".
Dr Kay's report then sets out his assessment of the applicant's "impairment rating", in accordance with Chapter 4 of the Guide to the Assessment of Rates of Veterans' Pensions (5th ed, 1998), by reason of his diagnosed condition of GAD. The "final impairment rating" was determined by Dr Kay to be 43 which indicated that the applicant's condition is "clearly quite severe".
49. Dr Kay's brief report of 9 September 2002 (Exhibit A3), addressed to the applicant's solicitors, states as follows:
"In reply to your letter of 8th July 2002 enclosing a report from Dr Mustac dated the 21st June 2002.
I continue to hold my opinion that Mr Rafferty is suffering from a chronic Generalised Anxiety Disorder as per my report of the 8th April 2002. I note that Mr Rafferty has been on anti-depressant medication for some time for the treatment of his Anxiety Disorder and I hypothesise that this may be the reason Dr Mustac did not make a diagnosis of an Axis 1 psychiatric disorder."
50. In his oral evidence-in-chief, Dr Kay confirmed that he had diagnosed the applicant's condition as chronic GAD on the basis of the signs and symptoms that were manifest on his presentation, and the history provided by him, which described similar symptoms appearing during his naval service in Vietnam. He also confirmed that the applicant's current treatment for that condition comprises the anti-depressant medication, "Aropax."
51. Dr Kay was referred to the definition of "generalised anxiety disorder" in clause 4 of the 1994 SoP. His evidence in relation thereto was as follows:
"MR CHRISTIE: Yes, if you go to paragraph 4, you will see the definition of generalised anxiety disorder?---Yes.
`Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months.'
He has the apprehensive expectation, excessive worry every day and has had that for many years. He finds it very difficult to control his worry. He feels restless and keyed up and on edge. Has difficulty of concentration. Irritability is a substantial problem for him. Muscle tension and sleep disturbance are likewise also present.
Right. I think the next two are negative features?---Correct.
If I can take you down to (v)?---Yes.
`Either the anxiety or worry, or physical symptoms, cause clinically significant distress.' Is that present?---Yes. Yes, both, I think, in his social and also occupationally.
I think there are two parts to that. It either causes clinically significant distress--- ?---Yes.
--- or there is impairment?---Well, there is impairment.
So, if we could deal with the first. Is there clinically significant distress?---Correct.
And impairment, do you see that?---Yes.
Both socially and occupationally?---Yes. It has interfered with relationships. He had problems as a result of anxiety symptoms in the Police Force.
And in relation to the history that you took, was the condition present within 2 years of the events in Vietnam?---It was present in Vietnam. By definition there, within 2 years.
And did it continue clinically for a period after the short period in Vietnam?---Yes, it did. It is difficult to say for how long because the entire picture has been compounded by alcohol abuse as well. And I am of the opinion that his alcohol abuse is secondary to his anxiety disorder or at least secondary to similar experiences.
When you say secondary, you mean as a result of, do you?---Yes. That he is self-medicating with alcohol to feel better.
...
And there is perhaps one thing that I did pass over...If I can take you back to the definition of generalised anxiety disorder, paragraph (a). Have you got that? Yes, I think it is maybe on the bottom of the first page?---Yes.
Where it refers to:
`Excessive anxiety and worry ... occurring more days than not for at least 6 months, about a number of events and activities (such as work or study), ...'.
?---Yes.
Do you see the worry both now and also originally being about a number of events or about a single event?---No. I mean, I am at a loss to explain how somebody wouldn't think that Mr Rafferty worries excessively and has so for many years.
And on the history you took, what are the types of things that he worries about?---He worries about his health; he worries about his finances; he worries about his relationships with people.
And on the history you took, was a variety of matters also present immediately following Vietnam?---Yes. Yes, he had reaction to the detonation of scare charges in the vicinity. And I presume, not next to him. But loud enough that it made some noise that was unpredictable. That was more than what would have been expected as a startle response to that. Meaning that his apprehension, his anxiety, his worry that arose to that sort of sudden event continued for days or weeks.
The history we have is that he appears to have coped pretty well with the first part of his occupation as a Police officer?--Yes.
And, indeed, perhaps also continuing his time in the Navy. Do you see that as inconsistent with a continuing chronic generalised anxiety disorder?---Not at all. Only the majority of people who have got anxiety disorders - and anxiety disorders are extremely common conditions. They affect at some or other (sic) well over 5 per cent of the population. Most people that have them can function relatively normally. Sometimes at times with extreme stress they decompensate to a degree. But in their own inner world, they are not at peace. They are uncomfortable.
And what has happened? Is it a time of extreme stress or was it something else that happened to him that made this condition so Mr Rafferty, on the face of it, can't continue working?---I think the answer to that is there is no scientific evidence to say why conditions like anxiety disorders should fluctuate the way that they do. But one can hypothesise that there are a number of factors. And most of those factors are things to do with stressful experiences that he had in his service as a Police officer. The suicide of his son a number of years ago. That like (sic) of experience laying itself on top of a pre-existing vulnerability with time caused a considerable exacerbation in his symptoms."
(Transcript, pp107-110)
52. In cross-examination, Dr Kay acknowledged that, in forming his opinion regarding the applicant's psychiatric condition and symptoms thereof while serving in Vietnam and thereafter, he was dependent upon the history given to him by the applicant, and there were no objective criteria on which to base his opinion.
Dr P Burvill
53. Dr Burvill, Consultant Psychiatrist and Emeritus Professor of Psychiatry, The University of Western Australia, confirmed that he had provided a report, dated 6 September 2002, regarding the applicant to the applicant's solicitors. The contents of that report (Exhibit A4) are as follows:
"...
I saw Mr Rafferty on two occasions, 22.08.02 and 30.08.02.
Mr Rafferty joined the Royal Australian Navy in 1964 at the age of 17 years. After his initial recruit training at the HMAS Cerebus (sic) he travelled to the Far East for approximately 10 months on the HMAS Vampire. At the time he was a Radar Plotter. He had not done a course on the relevant subject at that stage.
Mr Rafferty described three incidents on board the HMAS Vampire during that trip, which he said caused him considerable anxiety. The first two were when the ship was sailing through two typhoons. As part of his position as a Radar Plotter he had to sit on the open bridge of the HMAS Vampire. During the typhoons he was tied by ropes to his chair in order not to be washed overboard as the ship ploughed through the very rough sea during the typhoons. As a lad of 17 on his first tour of duty on a ship, he found going through the typhoons under these conditions very frightening. He was seasick, anxious, tense and worried about his safety.
The third incident was when they were refuelling, with two ships beside each other with ropes from one ship to the other. Mr Rafferty was one of a number of sailors who had to pull the rope bringing stores to the HMAS Vampire. During this he slipped and but for the scuppers (small wooden edge alongside the edge of the ship) he would have gone overboard when he slipped. During this episode he felt very anxious, continually thinking that, if he went over the side of the ship, he did not know what would be his chances of survival.
Following the tour of duty on the HMAS Vampire Mr Rafferty transferred to the HMAS Cerebus (sic) for a nine month course on communications. He was dux of the course, being top of the thirty sailors on the course. Mr Rafferty had always been a keen sportsman. He played a lot of sport while at HMAS Cerebus (sic) and was in the top naval football side (Australian Rules). He described himself as a `fitness fanatic' in those days.
In April 1966 he proceeded to the Far East aboard the HMAS Yarra, joining the HMAS Sydney two weeks after sailing to escort it to Vietnam. While in Vietnam the ship was assigned to take the HMAS Sydney to the Vung Tau Harbour, to stay there for two days while the HMAS Sydney unloaded stores and troops. Mr Rafferty said that they had been told that the two ships could be targets of the Viet Cong due to the proximity of the ships to land. They were within range of rocket and mortar fire. At the time Mr Rafferty was 19 years of age. Being told of the dangers while they were in the harbour, he felt very tense, anxious and worried, continually fearing that something unpleasant would happen. He believed that their ship was a `sitting duck'. While they were in harbour the ships were placed on `Awkward State Two', which meant that while not actually being attacked, the ship and crew were prepared in case they were attacked. In this situation, if attacked, it would take 20 minutes before the ship could actually move.
While in Vung Tau Harbour Mr Rafferty was assigned with three others to a small boat on the midnight shift, midnight to 4am. They had to patrol around the ship looking for potential problems and to throw `scare charges' intermittently into the water. He was extremely frightened during the four hours of this duty and was very grateful to be back on board ship. He had to do only one such shift. He said that he never discussed his fear with other crew members.
While circling the ship during the four hour shift he was very frightened as they had been told that Viet Cong frequently hid behind logs and other debris in the harbour and were carrying explosives. There was always a danger of being attacked in that way, or colliding with a mine floating down from the river into the harbour with the tide. In the darkened atmosphere in the middle of the night he felt extremely frightened.
For the rest of the two days in Vung Tau Harbour, while not asleep, he was on duty as a Radio Operator, closed off from view from the rest of the ship. During this time he could hear explosions from outside the ship. He did not know what was happening, or what danger the ship might be in at the time. Whenever he heard an explosion or any loud unexpected sound he would become extremely anxious and would begin to hyperventilate and sweat profusely. During the time at harbour, on Awkward State Two, all crew members were either asleep or on duty. He found it very difficult to sleep, feeling very anxious all the time they were in harbour. He said that while in the Vung Tau Harbour he felt very vulnerable and helpless.
Their ship then proceeded to Hong Kong. During this period after the Vung Tau Harbour experience, Mr Rafferty began drinking alcohol heavily. Prior to that he had rarely touched alcohol. He said that the alcohol helped him forget about the memories of his experiences in Vung Tau Harbour and of the considerable anxiety attached to these thoughts.
From that time he became very irritable, began to have mood swings ranging from being relatively tranquil to rapidly verbally abusing others in a very aggressive manner. Mr Rafferty said that this irritability and abusiveness persisted thereafter and was one of the reasons why he eventually had to leave the Police Force many years later. He said that the intensity of these mood swings fluctuated considerably, with aggressive outbursts commencing rapidly without much provocation.
After two weeks in Hong Kong they returned to Vietnam, spending two weeks in the area but not re-entering Vung Tau Harbour. During this time his sleep disturbance which had begun during his previous time at Vung Tau Harbour became worse.. He was very restless, had difficulty going to sleep and kept awakening frequently. This sleep disturbance has persisted to the present day.
During his time in Penang Mr Rafferty continued to feel very tense, anxious and to have memories of his experiences in Vietnam. His mood swings continued. On some nights he began to have dreams of those experiences.
From Vietnam the ship proceeded to Penang for R&R and then to Australia. They were away from Australia for a total of three and a half months.
Shortly after returning to Australia Mr Rafferty was stationed on the HMAS Tarangau, which is a land base on an island off New Guinea. There his symptoms continued. He drank eight to ten stubbies each night. His irritability, mood swings, aggressive behaviour and insomnia continued. During one such aggressive outburst he `lost it' with a senior sailor, threatening the sailor. This resulted in a charge of disobeying orders and threatening a senior officer. He was disciplined for this behaviour.
During the above period Mr Rafferty said that he did not seek help. He did not recognize his behaviour as being a problem. It would have been humiliating for him to tell others of his feelings about Vietnam. He feared that to do so would jeopardize his career and further promotion in the navy. He claimed that it was not until he saw Dr Woodall, Psychiatrist, in 1996 that he realized that he had a mental illness.
In 1967, after his being stationed at HMAS Tarangau Mr Rafferty married in Australia. Thereafter he spent twelve months in Sydney at HMAS Kuttabul. He said that his excessive alcohol intake, difficulty in sleeping, irritability, mood swings and his aggressive behaviour continued during this time. He rarely had a night without disturbed sleep, or waking two or three times each night. Prior to Vietnam he had always slept soundly.
His drinking and the above described behaviour continued thereafter. He spent 1970-72 aboard HMAS Stuart. There were no major incidents during this period. He continued drinking at least six to eight stubbies a night. His irritability, anxiety, sleep disturbance, mood swings and explosive behaviour continued. He said that he continued to drink these quantities of alcohol to keep his anxiety at bay and to forget his Vietnam experiences. Mr Rafferty made it very clear that he never drank while on duty.
In early 1972 they were told that the Australian Government would grant long service leave to servicemen after ten years' service. Consequently Mr Rafferty applied to extend his enlistment for a further 12 months from the time his current enlistment terminated, in order to qualify for the long service leave. He said that it was necessary to apply for such an extension of service well before the termination of the current enlistment. However, later he learned that, if he stayed, he would remain on the HMAS Stuart and that there was a strong possibility of the ship going to Vietnam. As he greatly feared a return to Vietnam he applied for discharge from the navy at the end of the normal period of enlistment, being discharged on 5th January 1973. Mr Rafferty said that at the time of discharge he had no idea that the Vietnam war would finish. The last Australian ship to go to Vietnam was in November 1972. The Labor government under Mr Whitlam was elected in December 1972 and took up office in December 1972 but did not announce Australia's withdrawal from Vietnam until after Mr Rafferty had left the navy.
Mr Rafferty joined the West Australian Police Force in July 1973, six months after discharge from the navy. During those six months he worked in a variety of positions, some on a part-time basis.
Mr Rafferty said that during his 26 years in the police force he encountered very stressful experiences from time to time, such as viewing dead bodies and attendances at bad motor vehicle accidents. He said that compared with many in the police force he did not have a lot of such traumatic experiences. He said that his most traumatic experiences during those 26 years were related to family problems.
In 1979 Mr Rafferty was transferred to Kalgoorlie for three years. During that time he greatly reduced his alcohol intake. With the reduction in his alcohol he began a programme to regain his former physical fitness. He played squash, football and jogged 10km each day.
Following Kalgoorlie, he was in the Liquor and Gaming section of the police force in Perth for seven years. During this time there was access to a lot of free alcohol. During this period he would drink heavily one or two nights per week and would have three to four nights without drinking any alcohol at all.
During the years in Kalgoorlie and in the Liquor & Gaming section his irritability, his mood swings and verbal aggression continued, although his mood swings varied considerably in frequency and severity from time to time. His sleep disturbance continued.
In the mid 1990s his irritability and verbal aggressive outbursts became worse, often reaching the point of threatening, physical aggression although he never did so. He claimed that he had only had four or five fights in his whole life. He described one incident when he had to attend a large noisy party at which bikies were present. While there, he was subjected to threatening and abusive behaviour from the bikies. He said that he responded to the latter by saying `go ahead, each time you hit me will mean another month in the can'.. He found that standing up to the bikies in this manner a very stressful situation. Mr Rafferty said that he had been involved in similar incidents while in mining towns while stationed in Kalgoorlie. During such incidents, although he presented a calm façade, beneath this he felt very anxious and tense, shaking inwardly. He felt that it was essential that a policeman under these conditions did not show any `weakness' and must use a certain amount of bluff. Nevertheless under these circumstances he said that he feared for his safety.
Prior to his seeing Dr Woodall in 1996 he had attended four different anger courses through the police force, each over a short period, following a few incidents when he had abused people while in uniform during his aggressive outbursts.
For eight to nine years during the period 1987-96 Mr Rafferty expressed his long-standing great interest in Australian Rules football by being a sports trainer for South Fremantle Football Club. During this period he was involved in a few incidents on the football field, abusing other trainers and umpires. Eventually he spoke to the football club doctor, Dr Reid, about these aggressive outbursts. Dr Reid referred him to Dr Woodall, private Psychiatrist. He said that Dr Reid would have seen some of this behaviour while watching these football games.
Mr Rafferty was treated by Dr Woodall for several years. In early 2002 he was referred to Dr Oleh Kay, private Psychiatrist, for a second opinion. He has been under the care of Dr Kay since that time. He attends consultations with Dr Kay on a regular basis and has been prescribed SSRI antidepressants. His symptoms have continued unabated since his retirement from the police force. He continued to be very anxious, tense, irritable and moody. He had difficulty in sleeping, and exhibited very aggressive behaviour.
I noted that in exhibit A4, document 10, a copy of which you sent me, his wife stated that his irritability had continued to worsen, that he kept to himself, which lessens his opportunity for stress, still abuses people for nothing, and that his aggression was particularly racially orientated towards Aborigines, Chinese and Vietnamese, in spite of the fact that he had had aboriginal friends.
His restless sleep continued, such that he and his wife sleep in separate rooms, which has been their habit for this reason for many years. Mr Rafferty said that the latter arrangement was necessary, as during the night he became very restless, and would often get up wandering around during the night. More recently, he has begun to live in the granny flat in the back of their home as it is so quiet and peaceful.
Mr Rafferty ceased drinking alcohol several years ago. At present he lives a very quiet isolated life, preferring to minimize his contact with other people.
Besides the symptoms listed above, I enquired about other psychiatric symptoms at present and in the past. At present he continues to be very anxious and tense most of the time, has considerable muscular tension, is startled by sudden unexpected noises, has poor concentration and is easily fatigued. He denied episodes of depression. On returning from Vietnam he used to have frequent dreams/nightmares of his Vietnam experiences, but these subsided after several years. For the past few years, predominantly since 1996, there has been a return of occasional nights of dreams/nightmares related to Vietnam experiences. He does not give any current history of flashbacks or intrusive memories of his Vietnam experiences. I was unable to obtain a history of avoidance of reminders of Vietnam. Recently he read a book on Vietnam which he found intriguing. At one stage he used to hate anything to do with Vietnam and avoided all reminders.
The above described behaviour of Mr Rafferty contrasts markedly with his personality functioning prior to his experience in Vietnam. At that time he was described as being a very quiet, shy person, rather timid, never having any aggressive behaviour, not being a worrier by nature, and being a very keen sportsman, especially playing football and cricket. Although quiet and shy he was able to mix with people, and enjoyed doing so. He did not drink alcohol prior to joining the navy. Prior to his Vietnam experiences while in the navy, he drank a maximum of one or two glasses of beer on the nights when he did drink.
I enquired about several tragedies in his life, given the history about these outlined in some of the reports you sent me. Mr Rafferty described five family tragedies. The first was in 1963 shortly before he joined the navy. His eldest brother was killed in a car accident. Mr Rafferty was the third of four boys. He said that his eldest brother was always a rebel, was in constant conflict with his father, and consequently spent much of his time living with his grandmother. As a result Mr Rafferty did not know his brother well and his upset at his brother's death was rather muted. He was quickly over any upset he did have.
In 1975 his father died of a myocardial infarction at the age of 56. He always had good relationships with his father. His father had had several heart attacks prior to this time. Mr Rafferty said that he had the normal upset of losing a father under these circumstances, but did not consider this to be a major stress or to give´ him prolonged problems.
In 1983 his second brother who was a policeman was murdered in Kalgoorlie at the age of 38. He had split from his wife, and following an argument with his de facto, the latter had shot him. Mr Rafferty described his upset at his brother's death as being `normal', saying that he had been hardened by his police work.
In 1992 Mr Rafferty's eldest son, who was a policeman, committed suicide after trouble with his girlfriend. This was sudden, unexpected and very upsetting. In contrast to other family tragedies, Mr Rafferty was very upset by his son's death. He said that it took him three years to overcome the bereavement associated with the death. There were no symptoms of a major depressive illness. He was not treated for any psychiatric problems during this time.
In November 1992, shortly after his son's suicide, his mother aged 71 died. Again he said that this was a sad event, as was the death of his father earlier, but his upset was not to same degree as at the death of his son.
Mental State Examination:
At each consultation Mr Rafferty described his history clearly, in a fairly organized manner, in keeping with his underlying obsessional personality traits. He was not obviously anxious or depressed at either interview. However, he became slightly upset when relating several incidents. I pointed out the contrast between his history of irritability and explosive outbursts, and his affect at each interview. Mr Rafferty said that he felt quite comfortable with the interview process, and that his relative calmness at the consultations was within the range of his mood swings. He said that frequently, while in such a mood, he would suddenly become quite angry and verbally aggressive over relatively small incidents. I tested Mr Rafferty's concentration using the standard Serial Seven Test. He performed this test without difficulty, without mistakes and took only 37 seconds to complete the task. This was in keeping with somebody who was very adept with figures and did not indicate any lack of concentration at the time of doing the test. Similarly, he was able to register a standard name and address without difficulty on the first attempt. At no stage throughout the interview was there any indication that Mr Rafferty had any cognitive disturbance. He was able to give a clear concise and fairly methodical account of the various sequences of his naval experiences, his time in the police force, family tragedies and his symptomatology.
I answer your specific questions as follows:
1. At present Mr Rafferty suffers from a chronic Generalised Anxiety Disorder (ICD Code 300.02). His history indicated that he had symptoms of a Generalised Anxiety Disorder from the period shortly after his experiences in Vietnam, that many of those symptoms had persisted throughout the rest of his life, and have become particularly troublesome in recent years, necessitating his early retirement from the police force.
I did not find any evidence that Mr Rafferty had a Post Traumatic Stress Disorder (PTSD). He did have some symptoms of PTSD following his Vietnam experience, but in my opinion these were not sufficient to make a definite diagnosis of PTSD whereas his symptomatology fulfilled the diagnostic criteria of a Generalised Anxiety Disorder.
Mr Rafferty has a history of excessive alcohol intake since Vietnam. It could be argued that his excessive drinking fulfilled the criteria for alcohol abuse. However, he has not drunk alcohol for some years. The history given to me clearly indicated that his excessive drinking was in reaction to his anxiety symptoms, as a means of quelling those symptoms and trying to forget his Vietnam experiences. Once established his heaving drinking pattern continued thereafter.
2. It is my opinion that his General (sic) Anxiety Disorder first commenced shortly after his experiences in Vietnam. This condition is now chronic.
3. In my opinion there is a close significant relationship between Mr Rafferty's operational service in Vietnam and his Generalised Anxiety Disorder. It first began shortly after his Vietnam experience. He did not have such a condition prior to his Vietnam experience. No other reason for the onset of his anxiety disorder at that time was elicited. His Generalised Anxiety Disorder has persisted since that time, with some fluctuations over the years, and an exacerbation of the condition in recent years.
The question of a possible relationship between his General (sic) Anxiety Disorder and the five family tragedies listed above must be addressed. All but one of these tragedies, namely his son's suicide in 1992, were accompanied by a normal emotional reaction to such events. There was nothing unusual about the bereavement process on each occasion. He was definitely very upset by his son's death. However, his General (sic) Anxiety Disorder dated from many years prior to 1992. In no way could it be said that his son's suicide was a causative factor for his Generalised Anxiety Disorder. At most it may have aggravated his disorder at that time. He himself said that it took three years to overcome his son's death. Although he still has the symptoms of a Generalised Anxiety Disorder, there was no evidence at the consultations that he is still grieving for his son or that he has any psychiatric symptoms related to that event. His described psychiatric symptoms, which he has at present, are in keeping with those which he has had for very many years since Vietnam.
4. As stated above, I believe that Mr Rafferty's Generalised Anxiety Disorder began a short time after his operational service in Vietnam, that is well within the two years mentioned in your question 4.
5. I closely questioned Mr Rafferty seeking the presence or absence of the essential criteria outlined in the Statement of Principles of the Department of Veterans' Affairs concerning Generalised Anxiety Disorder (ICD Code 300.02).
Shortly after his operational experience (sic) in Vietnam Mr Rafferty developed symptoms of a Generalised Anxiety Disorder fulfilling the following criteria outlined in the Statement of Principles.
1(b) A stressful experience not more than two years before the clinical onset of Generalised Anxiety Disorder.
2 His Generalised Anxiety Disorder was very significantly related to his Vietnam operational experience (sic).
3(a) His Generalised Anxiety Disorder followed the operational experience (sic) in Vietnam. Although he was very anxious and frightened during the earlier experiences at the age of 17 aboard the HMAS Vampire during the two typhoons, his history did not indicate a history of Generalised Anxiety Disorder dating from that time. Nevertheless it could be said that his experiences during the typhoons would have sensitized him to the great fear he felt during his time in Vietnam harbour.
4. Mr Rafferty's condition fulfils the following criteria listed in item 4 in the Statement of Principles for Generalised Anxiety Disorder:
(a) (i),
(ii), (A), (B), (D), (E) and (F)
(iii) It is not confined to features of an Axis 1 Disorder, as listed in (A) - (G), or any other psychiatric disorder.
(iv) It is not part of a Post Traumatic Stress Disorder
(v) His anxiety symptoms cause significant impairment in his social and occupational functioning, and to some extent his marital situation.
(b) His Generalised Anxiety Disorder is not due to (i), (ii) or (iii).
(c) His disorder does not occur during a mood disorder, a psychotic disorder or a pervasive developmental disorder.
At the present time Mr Rafferty's psychiatric symptoms fulfil all the criteria listed above under question 5 above. That is, his current symptoms fulfil the same criteria in the Statement of Principles for Generalised Anxiety Disorder as they did for the period within the first two years after his Vietnam experience.
...".
54. In his evidence-in-chief, Dr Burvill said that when he saw the applicant he made a diagnosis of chronic anxiety disorder which was in partial remission owing to the fact that he was receiving psychiatric treatment. He added that his assessment of the longitudinal history of the applicant's present condition was that his anxiety state first arose in the context of his service in Vung Tau Harbour, Vietnam and that that could be traced longitudinally to the present time, with exacerbations and remissions occurring during that period.
55. Dr Burvill was referred to the definition of "generalised anxiety disorder" in the 1994 SoP and he commented on the diagnostic criteria there specified as follows:
* the applicant gave a history of excessive anxiety and worry which he found difficult to control, occurring more days than not for at least 6 months, about a number of events or activities - although he said that the applicant did not present with excessive anxiety and worry when he saw him because he was then in partial remission by reason of his taking a moderately substantial amount of anti-depressant medication;
* according to the history given to him, the applicant has continually experienced the following symptoms, with varying severity, since his service in Vung Tau Harbour - namely, restlessness, concentration difficulties, irritability, tension and sleep disturbance;
* the abovementioned anxiety or worry or physical symptoms experienced by the applicant throughout that period caused him both clinically significant distress and impairment in his social and occupational functioning.
56. In cross-examination, Dr Burvill acknowledged that he accepted the whole of the history as told to him by the applicant - including, in particular, the history of the anxiety and worry and associated symptoms experienced by the applicant from the time of his service on HMAS Yarra in Vung Tau Harbour and during his period of service on HMAS Tarangau - and that he had based his opinions on that history. Asked whether he had considered that the applicant's history of symptoms experienced during that period may have been exaggerated, Dr Burvill responded that he had considered that possibility but that he regarded the applicant's account as reasonable and he was not of the opinion that the applicant had exaggerated his symptoms.
57. It was put to Dr Burvill that he had no basis for opining that the applicant was suffering "clinically significant distress" during his service on HMAS Tarangau (from September 1966 to September 1967). Dr Burvill responded that the applicant had given him a clear history of the anxiety symptoms that he experienced from his time in Vung Tau Harbour and it appeared from that history that his GAD started within days or weeks of that time and that he was "quite disturbed ... throughout all that time". Dr Burvill acknowledged, however, that the applicant's "working abilities" were not affected thereby, but he thought that, by reason of symptoms such as irritability with people and aggressive outbursts, the applicant's social behaviour had been impaired.
58. It was also put to Dr Burvill that the applicant's evidence, that during his service on HMAS Tarangau he had no worries in his life at that time apart from his Vietnam experience, was inconsistent with his having GAD at that time. Dr Burvill disagreed and said that he regarded that proposition as "too pedantic".
Dr R Hester
59. Dr Hester, Psychiatrist, confirmed that, following a referral from Dr Brian Dare, Health and Welfare Branch, WA Police, he saw the applicant and subsequently provided a report dated 21 October 1998 to Dr Dare. The contents of that report (Exhibit R1) are as follows:
"I saw this man at your request on 20 October when he explained to me that he had been depressed and altered behaviour for at least the last two years, although probably considerably longer. He described having no tolerance (particularly for aboriginals as he thought they were causing a great deal of trouble). He felt that he was certainly unable to deal with them in a policing situation because of his irritability and intolerance of the way he had experienced their behaviour.
He could not be bothered with many things as he had in the past. He locked himself away, felt extremely irritable and became uptight and aggressive if people did not do the `right things'. He was often swearing, `explosive' and on edge if things happened that did not fit in with his scheme. For example if he asked someone for a car in the police depot and was asked `why should you have a car' he described `losing it' and becoming angry and abusive.
His sleep is disturbed as he tosses and turns most nights. He described having no energy and gets tired much quicker for the tasks he has to do. He describes himself as now quite asocial, does not bother to meet people and has reduced self-esteem. He feels himself even anxious getting (sic) towards the Police Department and depressed about what he sees as going on. He has lost his sense of job satisfaction. He ceased his activities that he used to enjoy like camping and bush walking and locks himself away watching television and reading.
His wife has had to move out of the bedroom and stay in a separate room because of the way he is. He said he could easily become a hermit. His concentration is extremely poor and his memory for things has deteriorated. He described several events in which he loses this memory such as his keys around the house and forgets tasks he has been doing.
The background to this is one of some family disturbance. His father died aged 56 in 1975 and his mother died in 1992 aged 71. He said they were good parents. He grew up in Perth where he went to school but he said he was never too bright because he did not apply himself.
He is the third of four boys. His older brother died in 1963 in a motor vehicle accident. His next brother was murdered. His younger brother is an accountant who he sees only occasionally.
He joined the navy at 17 where he was successful for nine years and which he enjoyed. He resigned because he was married and being away for nine months from the family. He had three children, two sons and a daughter. His eldest son committed suicide in 1992 and he still has some unfinished grief about that. His next son is aged 28 and he describes him in quite negative terms. His daughter lives with her boyfriend in Waroona.
The health in his life has been good. He has never had any serious illnesses or operations. He described his personality as one that used to be able to make friends easily, had good self-esteem, enjoyed what he did and was always a workaholic doing the right thing. He said however he did keep his feelings to himself and was a male macho type of person.
He told his story quite easily and with emphasis but with no abnormality in his cognition or affect in the interview.
In my opinion he has chronic dysthymic disorder which has been unrelenting for the last two years and necessitated four times off work on sick leave. In my opinion it is unlikely that he will be able to resume his former occupation as a policeman again and certainly dealing with the public which he is expected to do. It is doubtful that he can work with colleagues given the likelihood of the way the work is practised and I think retirement is the only way he will be able to deal with this disorder.
In my opinion the work over 25 years as a policeman has finally taken its toll and that his own conscientiousness, hardness and inability to share his feelings has finally resulted in this disorder. He will need a good deal of help from his psychiatrist Dr Woodall to work through this and it is unlikely that he will ever be able to work again."
60. In cross-examination, Dr Hester confirmed that the purpose of the applicant's being referred to him by Dr Dare was to determine whether the applicant was unfit for work (as a police officer). He said that he was aware that Dr Woodall was then the applicant's treating psychiatrist but he had not seen any of Dr Woodall's reports regarding the applicant. He was then referred to Dr Woodall's report of 24 January 1999 in which the opinion was expressed that the commencement of the applicant's symptoms (which were then regarded by Dr Woodall as consistent with a diagnosis of PTSD) could be traced back to his service in Vietnam. Dr Hester (who was not given a history of the applicant's Vietnam experience) said that Dr Woodall "would know Mr Rafferty much better" than he, and that he "would certainly respect Dr Woodall's opinion about that matter".
61. Finally, in re-examination, Dr Hester confirmed that the applicant had never recounted to him any unpleasant experience that he had had while serving in the RAN.
Dr L Terace
62. Dr Terace, Consultant Psychiatrist, confirmed that he had examined the applicant and had subsequently prepared a report dated 26 October 2002 (Exhibit R5). That report, which is addressed to the respondent's solicitors, sets out very comprehensively the applicant's history, describes his mental state examination, and continues:
"QUESTIONS
Issues we would like you to address in your report:
20. (a) Whether Mr Rafferty suffers from GAD at all.
1. I have specifically and carefully examined the diagnostic issues of present psychiatric status and Mr Rafferty's current mental state.
2. ...
3. ...
4. After having critically dissected all Mr Rafferty's psychological experiences and compared his subjective descriptions to my objective findings, I concluded as follows:
4.1 I did not find sufficient evidence to show Mr Rafferty to suffer from a generalised anxiety disorder, in the present. This means that he does not meet full diagnostic criteria for a generalised anxiety disorder.
However, it is possible that if Mr Rafferty did meet criteria for a generalised anxiety disorder, in the past, that with time and treatment, such a condition has improved, such that he has some symptoms of the condition, in the present, but insufficient symptoms and signs to meet criteria for a more significant or more fulminant generalised anxiety disorder in the present.
4.2 Similarly, the same may be argued in relation to be considered diagnosis of a posttraumatic stress disorder. There are insufficient symptoms and signs to meet criteria for a posttraumatic stress disorder in the present. This does not mean that Mr Rafferty may not have suffered from a posttraumatic stress disorder in the past. Certainly, Mr Rafferty's retrospective account shows that, early in his military experience, his descriptions are consistent with the term acute stress reaction. This is a collection of posttraumatic symptoms, which Mr Rafferty relates to his experiences of the 4th - 6th May, 1966, whilst in Vietnam waters.
However, Mr Rafferty's own history of such symptoms and experiences is that they clearly declined and diminished over time, and this would be consistent with my finding that he does not have sufficient symptoms or signs to meet criteria for a posttraumatic stress disorder, in the present.
4.3 It is often the case that, if a person has had a significant psychiatric condition in the past, then with time and treatment the symptoms of such will diminish.
If there are residual symptoms despite time and treatment, then those symptoms may be non-specific, as Mr Rafferty's present psychological experiences are non-specific.
4.4 Therefore, it is within the realm of possibilities, that Mr Rafferty has suffered from a generalised anxiety disorder, but this has been substantially treated over time, explaining the non-specificity of any residual symptoms, in the present. It is thus within the realm of possibilities that Mr Rafferty's current mental state may be described as:
4.4.1 The residual symptoms of a generalised anxiety disorder (which is in partial remission with treatment).
This diagnosis is within the realm of possibilities, and the differential diagnosis
20. (b) If so, then what is the cause, or causes, of that condition.
1. If Mr Rafferty's mental state may be described as a generalised anxiety disorder, in partial remission or with residual symptoms, then it needs to be considered that generalised anxiety disorders are, like most psychiatric disorders or disturbances, obscure conditions for which precise causes are unclear.
The value of the term posttraumatic stress disorder is that it was probably the first psychiatric disorder for which it was clearly argued that a chain of causation could be established to a single significant traumata.
Mr Rafferty does not meet criteria for posttraumatic stress disorder, in the present.
Thus, if Mr Rafferty has had a generalised anxiety disorder, the origin of the generalised anxiety disorder must be considered to be obscure or complex, and multiple in causation, if understood at all.
If it is argued that generalised anxiety disorders represent the interaction between the following factors:
1.1 Inherent personality and constitutional vulnerability (ie personality make-up) - interacting with
1.2 Stressful life events,
- then it needs to be considered that the number of stressful life events, in this case, are multiple, and it is not possible to precisely apportion a causal chain to any specific event.
2. Whilst Mr Rafferty claims precise causation from his experiences in the Vietnam waters between the 4th and 6th May, 1966, this is complicated by the following:
2.1 Retrospective bias. It is interesting that the seed of causation between Vietnam experiences and Mr Rafferty's psychological disturbances were first introduced to him after he divulged his Vietnam experience to Dr Michael Woodall. Mr Rafferty stated -
`He was of the opinion that my problems came from Vietnam'.
`It was then I applied for a TPI.'
2.2 The long process of litigation.
2.3 The likelihood that any acute stress reaction initially suffered (and his history would support that Mr Rafferty did suffer from an acute stress reaction after these events) was temporary and did resolve.
The history alone would support a causal chain between that temporary acute stress reaction and the events of the 4th to the 6th May, 1966 in Vietnam waters.
3. However, subsequent to the resolution of the acute stress reaction, there were many factors in Mr Rafferty's life, which could explain any subsequent generalised anxiety disorder, and these factors would include:
3.1 All the relevant stressors outside of Mr Rafferty's military experience as described under the PERSONAL HISTORY.. It is of note, for example, that Mr Rafferty's son suicided in 1992, and this was clearly an overwhelmingly distressing event. This does not surprise me, and it is certainly confirmed by his history.
3.2 Furthermore, it is well established in psychiatry that the death of a child, particularly the suicide of a child, is the most distressing human event a person can experience.
If it is to be argued that generalised anxiety disorder has a causal chain to a stressful life event, then one is compelled to choose amongst the many multiple life events that have occurred in this case, including the following:
3.2.1 The process of litigation - Mr Rafferty himself remarked at the outset of interview, and repeated several times, how distressing he found this, exemplified by his early comments:
`I'm worse now than I was in Vietnam, since this has dragged over four years'.
`You're the fifth Psychiatrist I've seen and I have to rehash it all'.
Mr Rafferty described a long and complicated and distressing medicolegal process.
3.2.2. Mr Rafferty's exposure to critical life events and traumatic incidents during his Police Service is described.
3.2.3 Mr Rafferty's medical discharge from Police Services in 1999 on the basis of his aggressive demeanour (for which I cannot argue is a symptom of a psychiatric disturbance, since most cases of aggression are not the product, or symptom of, psychiatric disturbance, but rather relate to personality factors often complicated by current or past alcohol abuse and the effects on the human brain). I think that interaction between Mr Rafferty's personality function and his long history of alcohol consumption is sufficient to explain his tendency to aggression without the need to explain it as a psychiatric disturbance. This is especially so, since most cases of violence are not explained by psychiatric disturbances.
3.2.4 The murder of Mr Rafferty's brother in 1983.
3.2.5 The suicide of Mr Rafferty's son in 1992 (it is of particular note that Mr Rafferty, understandably, described this as overwhelming catastrophic and he described overwhelming distress and a state of emotional dissociation). Therefore, if traumatic dissociative experience can be claimed to be the cause of a psychiatric disturbance, then it would not be unreasonable to claim that this event was the cause of any current or ongoing psychiatric disturbance.
I think that it is essential to consider the multiplicity of stressful life events, in this case, and to consider that it is very easy in hindsight, and with retrospective bias, to make a fallacy in the logic of causality.
The term fallacy of causality refers to misattribution.
This means that just because a disorder or human distress followed the claimed event does not necessarily mean it was caused by it.
In retrospect, a claimant may assume that his perception of events is causal to the claimant's subsequent psychiatric disorder. This is consistent with the notion of misattribution when an individual reflects upon his disorder and assumes that it is caused by a single factor and, therefore, adopts a belief about causality, even if the evidence does not support that. Just because one event precedes another does not mean that the initial caused the latter. To automatically assume so in the absence of sufficient scientific evidence is a fallacy of the logic of causality.
Therefore, if an individual has a multiplicity of stressors from which to choose, or to blame for their psychiatric disturbance, then the natural tendency is to choose the incident that is of most immediate relevance to them and which makes that attribution meaningful in some way. In cases of litigation, the prospect of financial compensation can lead to a retrospective bias towards the incident for which financial compensation can be received.
It is of note that Mr Rafferty stated that he saw a Psychiatrist for four years - `And then it was hard to get things out of me' - until all of his problems, including the problems with his anger management, were attributed to a single traumatic experience of his military life.
4. Therefore, I do not have sufficient clinical evidence to show any current symptoms to represent a posttraumatic stress disorder, which might reasonably be linked to traumatic experiences whilst in the Vietnam waters between the 4th and 6th May, 1966, or approximating that time.
5. Furthermore, if the generalised anxiety disorder has been present in recent times, although partially treated now, I still do not have sufficient clinical or scientific evidence to causally relate that to the specific Vietnam experiences.
6. Rather, I think that the retrospective history supports continuous symptoms and a causal link between the Vietnam experiences of the 4th to the 6th May, 1966, whilst on the HMAS Yarra, which led to an acute stress reaction, which subsequently resolved.
...
20. (f) If Mr Rafferty were found to be suffering from GAD, then:
(i) To what extent is it possible to attribute Mr Rafferty's GAD to his operational service with the RAN (i.e. the 72 hours that he spent in Vung Tau Harbour) rather than his other military service (including his service on HMAS Vampire - see paragraph 9 above), his service with the WA Police Force, the deaths in his family and the other traumatic events in his life; and
...
1. As stated, Mr Rafferty does suffer from some kind of psychiatric disturbance, in the present, which may be described as an anxiety disorder and may be consistent with a more fulminant or severe generalised anxiety disorder in the past, which with time and treatment, is now in partial remission.
RESPONSE TO 20(F)(I):
2. It is within the realm of possibilities that any generalised anxiety disorder was provoked by operational service with the RAN, i.e. the 72-hours that Mr Rafferty spent in Vung Tau Harbour, rather than other military service.
It is within the realm of possibilities that Mr Rafferty initially experienced the symptoms of an acute stress reaction, as described, with subsequent posttraumatic disturbance, and that both the acute stress reaction and the true posttraumatic disturbance went into remission within some years, as described by Mr Rafferty.
However, the service with the WA Police Force, the deaths within the family and the other traumatic events in Mr Rafferty's life, cannot be discounted, and are probably far more relevant, on the balance of probabilities as the predominant causation of any present generalised anxiety disorder.
Whilst some of the above considerations pertain to the realm of possibilities, if I consider the balance of probabilities, my answer is different. This is because I do not have sufficient evidence, on the balance of probabilities, to show causation from the generalised anxiety disorder to operational service with the RAN, including the 72-hours spent in Vung Tau Harbour rather than other military service, including service on HMAS Vampire.
Rather, I considered the generalised anxiety disorder to be an obscure condition, which is multifactorial in origin, and which is more likely explained by a multitude of stressful life events, including service with the WA Police Force, deaths within the family and other traumatic events in life.
Rather, I think it is more likely that any acute stress reaction and posttraumatic disturbance arising from operational service with the RAN (i.e. the 72-hours spent in Vung Tau Harbour) have long since gone into remission, and for a generalised anxiety disorder, as a consequence of other factors, to have replaced it.
...
CONCLUSION
1. In completing my examination, I found sufficient evidence to show that Mr Rafferty meets criteria for a recognised psychiatric condition, in the present. The nature of the current symptoms are reasonably non-specific, but it is within the real of possibilities that he suffered from a more fulminant generalised anxiety disorder in the recent past and that with time and treatment, this is now in partial remission, leaving him with a constellation of fairly non-specific anxiety and other symptoms.
I am thus in broad diagnostic agreement with the opinions of Dr Michael Woodall, Mr Rafferty's treating Consultant Psychiatrist, and Dr Oleh Kay, whom he also saw for medicolegal assessment, but only in as much as Mr Rafferty probably has, in more recent times, met criteria for a generalised anxiety disorder, even if I consider that he only has residual symptoms of such a condition, in the present.
2. From the standpoint of causation I consider that the chronology of causation is more likely to be as follows:
2.1 Mr Rafferty became acutely and overwhelmingly distressed (according to the retrospective history) during his time spent on HMAS Yarra, at anchor, in Vietnam waters, for a period of approximately 72-hours in Vung Tau Harbour between the 4th and 6th May, 1966. However, the veracity of Mr Rafferty's descriptions of the events during this particular voyage is an objective matter and for legal, rather than medical or psychiatric determination.
Mr Rafferty alleges that, during his period of operational service, there were the dropping of scare charges, while the HMAS Yarra lay at anchor in Vung Tau Harbour. Thus in any claim of a chain of causation, I have relied on the veracity of his perceptions, relating to this. Mr Rafferty's perceptions of these events, then appeared to have given rise, within a causal chain, to the development of recognised psychiatric condition, which I would have initially called an acute stress reaction. This condition manifested by symptoms of posttraumatic disturbance within the spectrum of the term called posttraumatic stress disorder.
However, the symptoms of this condition subsequently improved and resolved by 1973. This is exemplified by Mr Rafferty's own subjective awareness of improvement from his own history. Furthermore supporting this contention are Mr Rafferty's descriptions of a period of increasing sociability, sporting activities, entering into the Police Force and a higher level of function prior to the development of stressful life events arising during his service with the Police Force, and his own personal life.
3. Therefore, a reasonable hypothesis may connect the initial psychiatric disability (the acute stress reaction) with the Veteran's service between the period described by Mr Rafferty between the 4th and 6th May, 1966.
4. I specifically examined the relevance of the other events described by Mr Rafferty during his service on HMAS Vampire. Mr Rafferty described a clear history of immediate distress, but no further psychological sequelae.
I have thus discounted the relevance of any other military service to the contraction of any subsequent psychiatric disorder.
5. I have considered the issue of the generalised anxiety disorder, which developed after remission of the acute stress reaction (alleged (sic) related to the period of 4th to 6th May, 1966).
As stated, this is an obscure condition of unclear and probably multiple causation, which can more likely be traced causally to stressful life events in the Police Force and Mr Rafferty's subsequent personal life rather than the period of his operational service in Vietnam.
A good example of the failure to achieve a clear chain of causation between the operational service in Vietnam and the generalised anxiety disorder, is as follows:
5.1 Mr Rafferty alleges that his successive (sic) alcohol intoxication commenced immediately after his operational service in Vietnam. Such alcohol consumption stopped 7-8 years ago, but the generalised anxiety disorder still continued.
6. I do not have sufficient evidence, on the balance of probabilities, to show any generalised anxiety disorder to be caused by operational service in Vietnam, in this case. It is, however, within the realm of possibilities.
7. The factual foundation of the hypothesis within the realm of possibilities, i.e. the facts relied upon to support the hypothesis, is outside of my determination, and is a legal matter.
8. The overwhelming evidence, in this case, is that even if Mr Rafferty's trips to Vietnam were sufficiently stressful to provoke the distress at that time, and to give rise to an acute stress reaction, then they were still not sufficient, compared to the many other traumatic events in Mr Rafferty's life, to explain the generalised anxiety disorder. The history of the operational service in Vietnam is also overwhelmed by the many other difficulties Mr Rafferty faced during his Police Service and, particularly, his personal life.
...". (original emphasis)
63. In his oral evidence Dr Terace was referred to the description in DSM-IV (at p 444) of "Anxiety Disorder Not Otherwise Specified" and he said that he thought it would be "reasonable to describe Mr Rafferty's condition as an anxiety disorder not otherwise specified in partial remission, partially treated". The remainder of Dr Terace's extensive oral evidence did not add significantly to the opinions expressed in his abovementioned report, and no useful purpose would be served by setting it out here.
Dr Z Mustac
64. Dr Mustac, Consultant Psychiatrist, confirmed that he had examined the applicant on 17 June 2002 and that he had prepared a report, dated 21 June 2002, regarding that examination. He also confirmed that he had prepared a supplementary report, dated 31 October 2002, in response to Dr Burvill's report of 6 September 2002 (Exhibit A4).
65. Dr Mustac's report of 21 June 2002 (Exhibit R7), which is addressed to the respondent's solicitors, sets out at length the applicant's history as recounted by the applicant at the interview on 17 June 2002, describes his mental state examination, and states the following conclusions:
"I do not find any evidence for an Axis I mental disorder at this time. Although I have diagnosed Mr Rafferty as suffering from Dysthymia I do this on the basis of his subjective complaints.
He complains of:
1. Irritability;
2. Lack of motivation;
3. Lack of desire to socialise with others.
On the other hand however he has an active sexual interest. He appears to be reading voraciously. He attends a pistol club, albeit on a once a month or once every two months basis. He has also been willing to assist his daughter and grandchildren to cope financially.
In addition, he has pursued his medico/legal claim with determination and energy. Certainly not the behaviour of a person who is excessively nervous or depressed.
I do not find good evidence of PostTraumic Stress Disorder. Although it could be argued that he had some stressor during his naval service it pales into insignificance compared to other traumatic events in his work life as a policeman, where he would have seen death and been threatened with violence on a regular basis. Similarly, I do not think it compares with the emotional trauma of the death of his son.
He has a long history of alcohol dependence. If indeed he was a heavy drinker for twenty odd years, I would expect that there may be some cognitive damage associated with this.
I would suggest in order to delineate any possible damage of this type that he have both an MRI Scan and also be reviewed by a neurologist to look for evidence of alcohol associated neurological damage and a neuropsychological assessment performed by Mr Michael Hunt.
You will note that at the time that I saw him he was cheerful, pleasant, and chatty with no objective evidence of anxiety or depression. Instead there is only subjective complaining of these symptoms and in particular, relating it to his Vietnam service."
In that report Dr Mustac, in response to a specific question, then states:
"I do not find any evidence that Mr Rafferty suffers from a Generalised Anxiety Disorder."
66. In his report of 31 October 2002 (Exhibit R8), which is also addressed to the respondent's solicitors, Dr Mustac elaborates on the basis for his opinion that the applicant does not suffer from GAD. He also elaborated on this matter in his oral evidence-in-chief as follows:
"DR SCHOOMBEE: Now, I would just like to ask you some elucidating questions. If we go to the second report which is R8, I notice on the first page you refer to:
A patient suffering from this disorder, that is, generalised anxiety disorder, is an excessive worrier.
Can you just explain to us how that would, as it were, translate into every day experience?---Well, an individual who suffers from this disorder worries excessively about things that the ordinary person wouldn't worry about. So, for instance, they would be concerned things will go constantly wrong. They might worry that, for instance, they might lose their job, even though there is no threat to their job. They may worry that they are going to have a car accident when traffic is travelling in a normal fashion on the road. So, they worry excessively about every detail of their lives. And this worrying is to such extent that it causes them on-going social or occupational impairment or psychological distress. So, it has to be to that point. It is not just somebody who is a bit of a worrier. It is to the point where it is actually interfering with their ability to function in a normal fashion. So, somebody who is that sort of worrier, of course, is tense. They are somebody who doesn't cope with any sort of real problems. So, if there is a real concern, for instance - if there is a worry that has a genuine basis to it, they don't cope with that at all. And often people with generalised anxiety disorder then develop a major depressive illness. So, that is the usual sort of pattern of it. In terms of its time course, it usually tends to be a life-long illness. It is not usually something that comes on for the first time and later in life. It usually is something that starts in the 20s or earlier and it tends to have a waxing and waning course. So, in other words, individuals throughout that period of their lives will have times when they are much worse and they can't function reasonably at all. And other times, they are much better. And, you know, they are, sort of, wondering why they felt so excessively worried at other times.
Can I just ask you, when you gave examples of worrying in general, if somebody is worrying about a specific past event, really concerned about something that had happened in the past, and let's assume for the moment that it doesn't produce truly intrusive re-living experiences, but that person is worried about that event and that predominates their life, is that something that would be a feature of GAD?---No, because as I mentioned, the very basis for the disorder is that you worry about everything. So, if its local or focalised to one particular issue, that - the name suggests generalised anxiety disorder. You know, it is self-evident that you should be somebody who worries about everything. It should be focal or, you know, localised to one particular aspect (sic). Because, as I mentioned, the underlying deficit there, the underlying mental illness, is excessive worrying in general. It is not regarding one particular issue.
Yes. And we know from your report, both R7 and R8, that you came to a conclusion that Mr Rafferty was not suffering from GAD. Is that correct?---That is correct. Yes, I couldn't find any evidence for it.
Could you just briefly explain to us by way of a summary why you came to that conclusion?---Well, as you can see, that is a matter both of the history that is provided as well as the examination. Coming to the history for a moment, it seems that - it is important to see these things in the context. And in the context, what you have is an individual who had had a frightening experience on a ship in a typhoon. Then had a brief period of service, I gather, in Vietnam. After that period of time, he was somebody who he said drank excessively and was punished when he was on an island for disobeying the order of a senior officer. So, it is not - so, there is no mention, that particular incident, is that that is suggestive of somebody who is fairly self-confident. Not an excessive worrier. And an excessive worrier usually wouldn't disobey an order. Then we go on to that after he finishes there, he goes on to work as a radio operator for a period of time.
He states that he doesn't seek any psychiatric treatment because he doesn't know that psychiatrists exist or that, you know, they are available. I don't find that a very credible history because I think most people would know they are available. And also I would expect that there would be a long history of general practice consultations in relationship to anxiety. Because, as I mentioned, generalised anxiety disorder is a waxing and waning condition which would go for many years. There is no evidence for that. People with generalised anxiety disorder also have troubles adapting to change because of that tendency to excessively worry. And Mr Rafferty didn't give a history of that. Then, of course, subsequently, we have a 20 year or 20 plus year history of him being a Policeman. And not only a Policeman but a successful one. To the point where he is promoted to Senior Sergeant (sic). Now, again, if an individual is suffering from a generalised anxiety disorder for a period of whatever numbers of years, you would expect would have considerable difficulties dealing with the traumas, violence and so on, associated with the Police Service. Then, there is a psychiatric history. And that psychiatric history which occurs appears to be after 1992 and 1996. I think he first sees Dr Hester. And Dr Hester mentions that in fact he has been unwell for 2 years. If I can - I haven't got the report right here in front of me but I think that that is what he says when he is seen by Dr Hester. And then subsequently - and there is also mention of the fact that he copes well with the death of his father which, again, is not something that I would expect of a person suffering from a generalised anxiety disorder. He then, of course, has the tragic death of his son. And the history seems to suggest that there is some decompensation around that period of time. That there is some problems. There is an on-going history of alcohol abuse. I notice that there is a mention that when he went to Kalgoorlie that he had reduced his alcohol intake. That is from one of the psychiatric reports. I can't remember whether it was Dr Woodall or Dr Hester. And then subsequently there is a mention in 1992, he separated from his wife because he was drinking and chasing other women. So, again, this isn't the behaviour that you would expect of somebody who is an excessive worrier. You would think that he would be too involved in his worrying to be undertaking those sorts of activities. And then we have got a gentleman who is actively pursuing his medico/legal entitlement. He first claims to have post traumatic stress disorder and when that doesn't succeed then he pursues his claim for a generalised anxiety disorder. And he seems to pursue that with a great deal of determination. Which, again, isn't consistent with a generalised anxiety disorder because somebody who is an excessive worrier, you would expect - would be too preoccupied with their worrying. And especially going into an adversarial legal situation is not something that they would undertake lightly and you would expect that as a consequence of - if they were inadvertently involved in some sort of legal battle, that it would result in a decompensation disorder and that hasn't been the case. He sees Dr Kay. He told me that was for medico/legal reports. That his solicitor had recommended he obtain from Dr Kay. But I understand there is some confusion about that, whether it was that or Dr Kay was his treating psychiatrist. And then we have got the objective examination. You will notice that when he actually came and saw me he related in quite a confident fashion. He mentioned to me that in fact he was having an affair with two married women. Now, again, that isn't the behaviour I would expect of somebody with a generalised anxiety disorder. The reason I wouldn't expect that is that you can imagine the sort of worries that individual would have being involved in that kind of situation. He then says that he really doesn't mind if, you know, his wife does get a copy of the audio tape which would include that information. Again, that isn't the behaviour you would expect of somebody with a generalised anxiety disorder. Throughout the interview, he is quite confident in describing the history and doesn't seem to become particularly distressed or worried when he is talking about things like the son who killed himself as a result of an unhappy love affair. ... the death of a parent, and so on. So, I couldn't find - and objectively, of course, he is not a nervous man. I mean, in fact, Dr Burvill comments on that as well and says that he asked Mr Rafferty why that is, that, on the one hand he is presenting calmly and yet he gives this history of having, you know, been a nervous person who hadn't returned to his normal self ever since his service in Vietnam. So, from my perspective, looking at the long term history, the history of treatment, the fact that he has very serious problems in his life. The suicide of a child is probably one of the worst possible stressors that an individual can experience. And the fact that he makes a success of his Police service over a 26 year period. It would seem to me that the overall conclusion is that this isn't a person who is an excessive worrier. In fact, this is a person who is quite relaxed. Has had affairs over a period of time. Has been a successful Police Service member to the point of where he is promoted to Senior Sergeant (sic). And then at the end of his Police service when the medical panel concludes that he is too depressed or his personality is such that he can't continue in the Police Service, he then pursues his medico/legal entitlements. That isn't, to me, the presentation of an individual who is debilitated as a result of a long term anxiety disorder. So, that is how I reached the conclusions that I do."
(Transcript, pp233-236)
67. Dr Mustac was referred to the definition of "generalised anxiety disorder" in clause 4 of the 1994 SoP and he reiterated that the applicant does not satisfy the diagnostic criteria described in paragraph (a) of that definition, namely:
"excessive anxiety and worry ... about a number of events or activities ... ".
Dr Mustac was asked whether, in his opinion, the applicant suffers from "anxiety disorder not otherwise specified" (as defined in clause 8 of the 2000 SoP). He responded that, in his opinion, the applicant does not have any anxiety disorder. More specifically, he said that the applicant does not display "prominent anxiety" or "phobic avoidance". Finally, as regards the "provisional diagnosis" of Dysthymia which he stated in his report of 21 June 2002, Dr Mustac explained that that disorder relates to a person who is excessively pessimistic or negative and that, on the basis of the applicant's history of attending psychiatrists since the 1990s in connection with certain family-related stressors and being prescribed anti-depressant medication during that period, it "seemed reasonable ... to conclude that he is suffering from dysthymia" in that "he has an excessive tendency to be pessimistic or negative". He said, however, that any such condition would date from the 1990s and is not related to the applicant's Vietnam experience.
THE LEGISLATION
The Act
68. Section 5D(1) of the Act contains the following relevant definition:
"disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels)."
Section 9 of the Act relevantly provides:
"(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;
...".
The appropriate standards of proof on which it is to be determined whether injuries or diseases are war-caused are prescribed by s120 of the Act which relevantly provides:
"(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 ...;
(b) that the disease was a war-caused disease ... ; or
(c) that the death was war-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
(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.
...".
Section 120A of the Act relevantly provides:
" ...
(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) ... ;
that upholds the hypothesis.
...".
The Statements of Principles
69. The RMA has, as previously mentioned, determined SoPs under s196B(2) of the Act in relation to, first, GAD (the 1994 SoP) and, second, Anxiety Disorder (the 2000 SoP). The 1994 SoP, which was in force at the time of the respondent's decision in this matter on 13 April 1999, relevantly states:
"1. Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are:
(a) having been a prisoner of war; or
(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
(d) inability to obtain appropriate clinical management for generalised anxiety disorder.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(d) must be related to any service rendered by a person.
3. ...
4. For the purposes of this Statement of Principles:
`generalised anxiety disorder' means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):
(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 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 (sic) condition (such as hyperthyroidism); and
(c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
`DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
`stressful event' means an occurrence which evokes feelings of anxiety or stress."
The 2000 SoP, which is presently in force, relevantly states:
"1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.48 of 1994 and Instrument No.275 of 1995 concerning generalised anxiety disorder; and Instrument No.380 of 1995 concerning anxiety disorder due to a general medical condition; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about `anxiety disorder' and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, anxiety disorder is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or
(c) inability to obtain appropriate clinical management for anxiety disorder.
Factors that apply only to material contribution or aggravation
6. ...
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
...
`anxiety disorder not otherwise specified' means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
`clinically significant' means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
...
`DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
`generalised anxiety disorder' means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
(E) The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(F) The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
`ICD-10-AM code' means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted to the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
`major illness or injury´ means a disease or injury that is life-threatening or seriously disabling;
`psychiatric condition' means an Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
`relevant service' means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
`severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
...
Application
9. This Instrument applies to all matters to which section 120A of the Act applies."
THE ISSUES
70. The issues for the Tribunal's determination in this matter can be shortly stated as follows:
* whether the applicant is presently suffering from a "disease", as defined in s5D(1) of the Act; and, if so,
* whether that disease is a "war-caused disease", within the meaning of s9 of the Act.
CONSIDERATION AND FINDINGS
Does the applicant presently suffer from a "disease", as defined in s5D(1) of the Act?
71. It has been firmly established, by a number of decisions of the Full Federal Court, that the question whether a veteran is suffering from a disease, the subject of a claim by that veteran for a pension under Part II of the Act on the basis that that disease was war-caused, is to be determined by the respondent (and, on appeal, by the Tribunal) "to its reasonable satisfaction", in accordance with s120(4) of the Act: see Repatriation Commission v Cooke (1998) 90 FCR 307 at 310, 312, and, most recently, Fogarty v Repatriation Commission [2003] FCAFC 136 at para 34 (where the authorities are set out). The "reasonable satisfaction" standard prescribed by s 120(4) of the Act is to be regarded as equivalent to the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
72. In Benjamin v Repatriation Commission (2001) 34 AAR 270 - a case which also involved a claimed psychiatric disease - the Full Federal Court described the general approach that should be taken by the Tribunal as follows (at 283):
"The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s120(1). The standard of proof laid down by s120(1) has no application to the former question.
However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the veteran fall within an SoP that is in force, it will be necessary to apply s120(1) as qualified by s120(3), as that provision is in turn qualified by s120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s120(3) is satisfied, without reference to s120A(3)."
73. In the present case the applicant claims to be suffering from GAD. There is no doubt that GAD is a recognised mental disorder (see DSM-IV, pp 432-436 (Exhibit R6)) and is, therefore, a "disease" (as defined in s5D(1) of the Act) within the meaning, and for the purposes, of the Act. The first question for the Tribunal's determination is, therefore, whether the material before it establishes to its reasonable satisfaction that the applicant is suffering from GAD.
74. The diagnostic criteria for GAD, as set out in DSM-IV at pp 435-436, are as follows:
"A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B. The person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). Note: Only one item is required in children.
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
D. The focus of the anxiety and worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.
E. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F. The disturbance is not due to the direct physiological effects of a substance (e.g. a drug of abuse, a medication) or a general medical condition (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder."
The Tribunal notes that the abovementioned list of diagnostic criteria accords substantially with the definitions of "generalised anxiety disorder" in clause 4 of the 1994 SoP and clause 8 of the 2000 SoP.
75. In determining whether the applicant is suffering from GAD the Tribunal naturally attaches great weight to the specialist medical evidence before it. That evidence, however, is not entirely consistent as regards either the question whether the applicant is presently suffering from a recognised psychiatric disorder, or the appropriate diagnosis of such disorder.
76. As regards the fundamental question whether the applicant is presently suffering from a recognised psychiatric disorder, the medical evidence, on balance, clearly supports an affirmative answer to that question. Dr Woodall (who was the applicant's treating psychiatrist from 1996 to early 2002) and Dr Kay (who has been the applicant's treating psychiatrist since June 2002) opined that the applicant is suffering from a recognised psychiatric disorder, namely, GAD. Dr Burvill, who examined the applicant in August 2002 for the purpose of preparing a medico-legal report, expressed the same opinion in his report, although in his oral evidence he added that the applicant's GAD is "in partial remission" by reason of the psychiatric treatment he has been receiving. Dr Terace, who examined the applicant in October 2002 for the purpose of preparing a medico-legal report, expressed the opinion in his report that the applicant presently "meets criteria for a recognised psychiatric condition" but did not there specify a precise diagnosis of the applicant's present psychiatric condition. In his oral evidence, however, Dr Terace thought that a diagnosis of "anxiety disorder not otherwise specified" was "reasonable" in this case. Dr Mustac, who examined the applicant in June 2002 for the purpose of preparing a medico-legal report, stated in his report that he found no evidence for an "Axis 1 mental disorder", although he was prepared to make a diagnosis of Dysthymia "on the basis of [the applicant's] subjective complaints".. Dr Hester, who examined the applicant in October 1998 for the purpose of determining his fitness to continue to serve as a police officer, made a diagnosis of "chronic dysthymic disorder" at that time.
77. On the basis of medical evidence before it, the Tribunal finds that the applicant presently suffers from a recognised psychiatric disorder which constitutes a "disease" (as defined in s5D(1) of the Act) within the meaning, and for the purposes, of the Act.
78. The issue of the appropriate diagnosis of the applicant's psychiatric disorder is, having regard to the different opinions expressed by the psychiatrists who have examined him in recent times, somewhat more problematic. Drs Woodall and Kay firmly opined that the applicant presently suffers from GAD on the basis that he satisfies the diagnostic criteria for GAD set out in DSM-IV and in the 1994 SoP. Dr Burvill expressed the same opinion but also noted that the applicant's GAD is "in partial remission" by reason of his psychiatric treatment. Dr Terace, on the other hand, was somewhat equivocal regarding the appropriate diagnosis of the applicant's psychiatric disorder and he did not clearly reject a diagnosis of GAD and, significantly, he was prepared to regard a diagnosis of "anxiety disorder not otherwise specified" - which, the Tribunal notes, is a category of psychiatric disorder recognised in DSM-IV (at p444) - as "reasonable" in the case of the applicant. Of the psychiatrists who have examined the applicant in recent times, the only one who clearly rejected a diagnosis of GAD was Dr Mustac. Indeed, Dr Mustac went so far as to say - contrary to the opinion of all of those other psychiatrists - that the applicant does not presently suffer from any kind of anxiety disorder.
79. Having regard to the whole of the medical evidence before it, the Tribunal is of opinion that that evidence, on balance, clearly supports a finding that the appropriate diagnosis of the applicant's present psychiatric disorder or "disease" is GAD. In forming that opinion the Tribunal has attached the greatest weight to the considered opinions to that effect expressed by the applicant's treating psychiatrists, Drs Woodall and Kay, and by Dr Burvill, a most eminent and experienced psychiatrist. On the basis of that evidence, and the applicant's own evidence, the Tribunal is satisfied that the applicant presently satisfies the diagnostic criteria for GAD specified in DSM-IV (at pp435-436). In particular, the Tribunal is satisfied that:
* the applicant has experienced excessive anxiety and worry on a daily basis for many years, primarily, but not exclusively, about his experiences during his operational service in Vietnam; [in this connection, the Tribunal notes that, in order to satisfy the relevant diagnostic criterion, it is necessary that there be excessive anxiety and worry about "a number of events or activities", not that there be excessive anxiety and worry about "anything and everything"];
* the applicant finds it difficult to control his worry;
* the applicant's anxiety and worry are associated with at least the following symptoms which he has experienced on a daily basis for many years, namely, restlessness and feeling keyed up, irritability, and sleep disturbance;
* the focus of the applicant's anxiety and worry is not confined to features of an Axis I disorder, such as Panic Disorder or Social Phobia, and his anxiety and worry do not occur exclusively during PTSD;
* the applicant's anxiety, worry or physical symptoms cause him clinically significant distress and impairment in social functioning;
* the applicant's disturbance is not due to the direct physiological effects of a substance (including alcohol) or a general medical condition and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
80. Accordingly, the Tribunal finds that the applicant presently suffers from a "disease" (as defined in s5D(1) of the Act), namely, GAD.
Is the applicant's GAD a "war-caused disease", within the meaning of s9 of the Act?
81. The question whether the applicant's GAD is a "war-caused disease", within the meaning of s9 of the Act, is, in accordance with s120(1) of the Act, to be determined on the "reverse criminal" standard of proof - that is to say, the Tribunal must determine that the applicant's GAD is a war-caused disease "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". Pursuant to s120(3) of the Act, the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for making such a determination if the Tribunal, after considering the whole of the material before it, is of the opinion that that material "does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of" the applicant's operational service. In this connection, if a relevant SoP determined under s196B(2) of the Act is in force, a hypothesis connecting the relevant disease with the circumstances of the relevant service will be "reasonable" only if that SoP upholds that hypothesis: see s120A(3) of the Act.
82. As previously mentioned, relevant SoPs have been determined under s196B(2) of the Act, namely, the 1994 SoP and the 2000 SoP. The 1994 SoP was in force when the respondent made its decision in this matter on 13 April 1999. That SoP was, however, revoked and replaced by the 2000 SoP which is currently in force. In these circumstances the Tribunal should first consider and apply the SoP which is currently in force, namely, the 2000 SoP; and, if the applicant's claim fails under that SoP, the Tribunal must then consider and apply the SoP which was in force at the time of the respondent's decision (namely, the 1994 SoP) because the applicant has an accrued right to have his claim determined by the Tribunal by reference to that SoP: Repatriation Commission v Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108; Thomas v Repatriation Commission [2003] FCAFC 122.
83. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Federal Court outlined the course which the Tribunal must, for the purposes of subss (1) and (3) of 120, and s120A(3), of the Act, follow in a case like the present (at 97-98):
"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
84. Having regard to the whole of the material before it, the Tribunal is satisfied that that material points to, or raises, the following general hypothesis connecting the applicant's present condition of GAD with the circumstances of his operational service in Vietnam: namely, that while serving on board HMAS Yarra when anchored in Vung Tau Harbour, Vietnam in 1966 the applicant experienced various very stressful incidents including, in particular, the patrol boat incident in the darkness of night, and his periods of duty in the radio communications room during which he heard the sounds of "scare charges" going off, and that he first contracted GAD at that time or at least within the period of 2 years after experiencing those incidents, and that he has continued to suffer from GAD from that time and presently suffers from GAD.
85. As previously mentioned, a relevant SoP determined by the RMA under s196B(2) of the Act is currently in force, namely, the 2000 SoP. The 1994 SoP, which was revoked by the 2000 SoP, was in force at the time of the respondent's decision in this matter.
86. The Tribunal is next required to form an opinion regarding whether the raised hypothesis is a reasonable one - that is, whether that hypothesis is consistent with the "template" to be found in the relevant SoP. The Tribunal will, for this purpose, first consider the 2000 SoP. Clause 5 of the 2000 SoP sets out various alternative "factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting", relevantly, GAD "with the circumstances of a person's relevant service" (including "operational service"). In the present case the only relevant factor is that specified in subpara (a)(ii) of clause 5, namely:
"experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder".
For the purposes of the 2000 SoP, "anxiety disorder" includes, inter alia, GAD: see clause 2(b). Clause 8 of the 2000 SoP contains definitions of various phrases including, relevantly, "severe psychosocial stressor", "generalised anxiety disorder" and "clinically significant": see paragraph 69 above.
87. The Tribunal is satisfied, having regard to the material before it - including the applicant's evidence and the various abovementioned psychiatric reports which contain the relevant history as recounted by the applicant to the psychiatrists - that that material points to:
* the applicant's having experienced a "severe psychosocial stressor" (as defined in clause 8 of the 2000 SoP) during his service on HMAS Yarra when anchored in Vung Tau Harbour, Vietnam in 1966, in particular, at the time when he was on board a small patrol boat circling the ship in the darkness of night for the purpose of dropping "scare charges", and thereby was caused to have feelings of substantial distress;
* the "clinical onset" of "generalised anxiety disorder" (as defined in clause 8 of the 2000 SoP) in the applicant at that time or shortly thereafter (and certainly within 2 years thereafter) in that:
- he then suffered, and has thereafter continued to suffer, anxiety and worry on a daily basis about a number of events;
- he then found, and has thereafter continued to find, it difficult to control that worry;
- his anxiety and worry were then, and continue to be, associated with at least the following 3 symptoms which he has continued to experience on a daily basis since the abovementioned patrol boat incident, namely, restlessness and feeling keyed up, irritability, and difficulty falling and staying asleep;
- the focus of his anxiety and worry was then, and continues to be, not confined to features of any other Axis I disorder;
- his anxiety, worry or abovementioned physical symptoms have caused, and continue to cause, him "clinically significant" ( as defined in clause 8 of the 2000 SoP) distress, and impairment at least in his social functioning; and
- his anxiety and worry were then, and continue to be, not due to the direct physiological effects of any substance (including alcohol) or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
* the applicant's condition of GAD, which he contracted during his operational service (as mentioned above), has persisted and the applicant continues to suffer from GAD at the present time.
Accordingly, the Tribunal is satisfied that the material before it points to, or raises, a hypothesis which is consistent with the relevant "template" found in clause 5 of the 2000 SoP, and which connects the applicant's GAD with his operational service, and it is therefore of the opinion that that raised hypothesis is a reasonable one.
88. Finally, the Tribunal must consider, pursuant to s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the applicant's condition of GAD is not a "war-caused disease" within the meaning of s9 of the Act. The Tribunal will be so satisfied if it is satisfied beyond reasonable doubt that the factual basis upon which the abovementioned reasonable hypothesis depends does not exist - that is, if it is satisfied beyond reasonable doubt either that one or more of the facts necessary to support that hypothesis does, or do, not exist, or that a fact which is inconsistent with that hypothesis does exist: Deledio v Repartition Commission (1997) 47 ALD 261 at 275; Repatriation Commission v Hill (2002) 69 ALD 581 at 595.
89. The Tribunal accepts the applicant's evidence regarding the relevant incidents which occurred while he was serving on HMAS Yarra when it was anchored in Vung Tau Harbour, Vietnam in 1966, and the feelings of distress and the symptoms which he suffered as a result thereof. In particular, the Tribunal accepts the applicant's evidence regarding the patrol boat incident and that he found that incident "absolutely terrifying" and "very frightening". The Tribunal finds, therefore, that that incident itself constituted a "severe psychosocial stressor", as defined in clause 8 of the 2000 SoP, in that it was an "identifiable occurrence that evoke(d) feelings of substantial distress" in the applicant. The Tribunal also accepts the applicant's evidence that, by reason of the incidents that occurred during his service on HMAS Yarra in Vung Tau Harbour in 1966 - in particular, the patrol boat incident - he immediately became very anxious and was worried, had trouble sleeping, felt uptight and on edge, and became aggressive and moody, and that he continued to experience these feelings and symptoms thereafter.
90. The Tribunal, furthermore, accepts the expert opinion evidence of the applicant's present treating psychiatrist, Dr Kay, and of Dr Burvill that, on the basis of the history that was given to them by the applicant, he, at the time of the abovementioned incidents in Vietnam or shortly thereafter, developed symptoms that were consistent with a diagnosis of GAD in accordance with the diagnostic criteria specified in DSM-IV and in accordance with the definition of "generalised anxiety disorder" in the 1994 SoP (which is in substantially the same terms as the corresponding definition in the 2000 SoP). The Tribunal notes that the applicant's former treating psychiatrist, Dr Woodall, is of the same opinion. The Tribunal prefers the considered and unequivocally-expressed opinions of the abovementioned psychiatrists to the somewhat equivocal views of Dr Terace and the sole contrary opinion of Dr Mustac. As regards Dr Hester, his only examination of the applicant occurred in 1998 and was for the sole purpose of determining the applicant's fitness to continue to serve in the police force (in which he had then served for 25 years) and he was not given any history of the applicant's Vietnam experience. Little, if any, assistance can therefore be derived from Dr Hester's evidence.
91. Having regard to the whole of the medical evidence before it, the Tribunal is satisfied, primarily on the basis of the expert evidence of Drs Kay, Burvill and Woodall, that the applicant commenced to suffer from GAD - in other words, that the "clinical onset" of GAD occurred in the applicant's case - at the time of, or shortly after - and certainly within the period of 2 years after - he experienced the abovementioned "psychosocial stressor", namely the patrol boat incident, while serving on HMAS Yarra when it was anchored in Vung Tau Harbour, Vietnam in 1966. At the very least, the Tribunal, having regard to the expert evidence of Drs Kay, Burvill and Woodall, cannot be satisfied beyond reasonable doubt that the clinical onset of GAD did not occur within 2 years of the applicant's experiencing the abovementioned "psychosocial stressor".
92. The Tribunal also accepts the considered and unequivocally-expressed opinion of each of Dr Woodall, Dr Kay and Dr Burvill that the applicant's present condition of GAD commenced at the time of his operational service on HMAS Yarra in Vietnamese waters in 1966 and has thereafter continued to, and is continuing at, the present time. The Tribunal accepts, in particular, Dr Burvill's evidence that his assessment of the "longitudinal history" of the applicant's present condition of GAD is that it commenced during his operational service on HMAS Yarra in Vung Tau Harbour, Vietnam and can be traced longitudinally from that time to the present, with exacerbations and remissions during that period. The Tribunal notes that Dr Terace was prepared to acknowledge the possibility (but not the probability) that the applicant's present psychiatric condition, however diagnosed, is related to his operational service in Vietnam.
93. Having regard to the whole of the medical evidence before it, the Tribunal is satisfied, primarily on the basis of the expert evidence of Drs Woodall, Kay and Burvill, that the applicant's present condition of GAD is causally related, or connected, to his operational service on HMAS Yarra in Vietnamese waters in 1966. Again, at the very least, the Tribunal, having regard to the evidence of Drs Woodall, Kay and Burvill, cannot be satisfied beyond reasonable doubt that the applicant's present condition of GAD is not causally related, or connected, to that operational service.
CONCLUSION
94. It follows from the foregoing discussion and findings that the Tribunal, for the purposes of s120(1) of the Act, is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's present condition of GAD is war-caused. Accordingly, the Tribunal, in accordance with s120(1) of the Act, determines that the applicant's present condition of GAD is a "war-caused disease", within the meaning of s9 of the Act. It is common ground that the date of effect of that determination is 16 August 1998 (being 3 months prior to the lodgment of the applicant's Claim for Disability Pension in respect of, inter alia, "stress/depression": see ss20(1) and 177(2) of the Act).
DECISION
95. For the above reasons, the Tribunal sets aside the decision of the VRB, dated 29 November 1999, and, in substitution therefor, decides that the applicant presently suffers from GAD and that the applicant's GAD is a "war-caused disease", within the meaning of s9 of the Act, with effect from, and including, 16 August 1998.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Deputy President
Signed: .......(sgd V Wong).............................................
Associate
Date/s of Hearing 30 October, 3, 4, 10 December 2002
Date of Decision 4 July 2003
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Christie & Strbac
Counsel for the Respondent Dr J T Schoombee
Solicitor for the Respondent Australian Government Solicitor
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