Gorton and Repatriation Commission [2003] AATA 89 (31 January 2003)

Last Updated: 31 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/41

VETERANS' APPEALS DIVISION	)
	Re	John Lester Gorton

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Ms S M Bullock, Senior Member Dr J D Campbell, Member Rear Admiral A Horton AO, Member

Date 31 January 2003

Place Sydney

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal decides that: (i) In relation to the condition of post traumatic stress disorder, the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Gorton's psychiatric condition is correctly diagnosed as post traumatic stress disorder and this condition is war-caused with effect from and including 20 February 1998. (ii) The assessment of the appropriate rate of Disability Pension is remitted to the Respondent. (iii) In relation to the decision under review concerning sebaceous cyst of the abdomen, back and head, the diagnosis is varied to sebaceous cyst of the scalp and fibrolipomata of the abdomen and back. The decision with the varied diagnosis is affirmed.

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

Ms S M Bullock

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Disability Pension - Diagnosis - Post Traumatic Stress Disorder - Anxiety - Adjustment Disorder - Sebaceous Cyst - Fibrolipomata - Reasonable Hypothesis - Reasonable Satisfaction

PRACTICE AND PROCEDURE - Concurrent Medical Evidence

LEGISLATION

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

AUTHORITIES

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Gorton v Repatriation Commission (2001) 63 ALD 723

Repatriation Commission v Williams [2001] FCA 1195

Benjamin v Repatriation Commission (2001) 64 ALD 411

Budworth v Repatriation Commission (2001) 116 FCR 200

Meehan v Repatriation Commission (2001) 64 ALD 366

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

East v Repatriation Commission (1987) 16 FCR 517

Re Repatriation Commission and Freeman (2000) 61 ALD 259

Bull v Repatriation Commission (2001) 66 ALD 271

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Dunlop v Repatriation Commission [2002] FCA 1400

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Gorton (2001) 110 FCR 321

REASONS FOR DECISION

January 2003

Ms S M Bullock, Senior Member Dr J D Campbell, Member Rear Admiral A Horton AO, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr John Lester Gorton, of a decision of the Veterans' Review Board (`the Board") dated 13 December 2000 (T20) which affirmed a decision of the Respondent, the Repatriation Commission ("the Commission"), dated 10 December 1998 (T2), which refused a claim for post traumatic stress disorder and for sebaceous cysts of the abdomen, back and head.

2. A Hearing was held before the Tribunal in Sydney on 22 November 2001 and resumed on 1 May 2002. The Applicant was represented by Mr D Price of Counsel, and the Respondent was represented by Mr J Marsh, Departmental Advocate. Mr Gorton provided oral evidence to the Tribunal. Evidence was also provided to the Tribunal concurrently by Dr A Dinnen, Consultant Psychiatrist and Dr R Delaforce, Forensic Psychiatrist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T26) and the following exhibits:

EXHIBIT	DESCRIPTION	DATE
A1	Report with attachment by Dr A Dinnen, Consultant Psychiatrist	9 May 2001
A2	Report by Dr C Macdonald, General Practitioner	19 April 2001
R1	Report by Commodore P M Mulcare, Writeway Research Services	24 September 2000
R2	Report by Dr R Delaforce, Forensic Psychiatrist	24 July 2001
R3	Supplementary Report by Commodore P M Mulcare, Writeway Research Services	8 November 2001
R4	Report by Dr E Lobel, Occupational Dermatologist	14 November 2001
R5	Supplementary Report by Dr E Lobel, Occupational Dermatologist	19 November 2001
R6	Report of Mr J Tilbrook, Writeway Research Services	4 September 2001
R7	Letters and Medical Report to Dr C Macdonald from Dr D M Townend, Consultant Surgeon	15 December 1998 16 February 1999 14 March 2001 4 April 2001
R8	Auscript Transcript of the Veterans' Review Board Hearing	13 December 2001
R9	Service Medical Documents	Various
R10	Clinical notes of Dr C Macdonald	Various
R11	Notes from Centrelink Office, Ballina	Various

SERVICE HISTORY

3. Mr Gorton served in the Royal Australian Navy ("the Navy") from 22 February 1957 until 1 May 1963 (T3). His eligible war service, which is operational service, was rendered in HMAS Melbourne during the following periods:

* 18 March 1959 - 28 April 1959

* 7 April 1960 - 28 April 1960

* 6 May 1960 - 16 June 1960

ISSUES

4. The issues in this matter are:

(i) Whether or not Mr Gorton suffers from a psychiatric condition and if so, what is the correct diagnosis of this condition;

(ii) Whether or not any psychiatric condition suffered by Mr Gorton is war-caused; and

(iii) Whether or not Mr Gorton's sebaceous cysts of the head, abdomen and back are war-caused.

LEGISLATION

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

6. Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:

"9 War-caused injuries or diseases

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

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

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

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

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

..."

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

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

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

" 120 Standard of proof

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

Note: This subsection is affected by section 120A.

...

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

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

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

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

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

Note: This subsection is affected by section 120A.

..."

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

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

Note: This subsection is affected by section 120B.

...."

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

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

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

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

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

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

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

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

Note2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

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

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

(b) has declared that it does not propose to make such a Statement of Principles.

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

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

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

that upholds the hypothesis.

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

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

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

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

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

as the case may be.

..."

STATEMENTS OF PRINCIPLES

12. The Statement of Principles considered relevant by the Tribunal and agreed by the parties is Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 concerning Post Traumatic Stress Disorder. The Tribunal notes that in the Full Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321 the current Statement of Principles is applied and if the Applicant cannot succeed under the current Statement of Principles then the Statement Principles in force at the time of the original decision is to be utilised.

EVIDENCE OF JOHN LESTER GORTON

13. Mr Gorton told the Tribunal that he lives with his wife. He has three daughters aged 29, 27 and 23 years. He has been married for 32 years. Mr Gorton stated that he ceased work in 1997 and then received a Disability Support Pension from Centrelink as it is now known. Mr Gorton stated that currently he is in receipt of a Service Pension and superannuation.

14. Mr Gorton joined the Royal Australian Navy on 22 February 1957 (T3), serving six years and three months, being discharged on 1 May 1963, at the expiration of his engagement. He was 17 years old on enlistment . Mr Gorton was an Ordinary Seaman at the time. Mr Gorton was posted to operational service in HMAS Melbourne during various periods in 1959 and 1960 and served in the Far East Strategic Reserve. The relevant period of operational service, which is the subject of this review, is from 18 March 1959 to 28 April 1959. Mr Gorton was 19 years old at that time and worked in the laundry.

15. In April 1959, Mr Gorton went ashore in Singapore on leave. He was drinking with approximately eight other Australian sailors who then swapped their uniforms for those of American sailors. The uniforms were typical United States ("US") sailors' uniforms with a cap. Mr Gorton stated that he only retained his own underwear and his socks. This act was mischievous and an act of "devilment" and fun, Mr Gorton told the Tribunal. Mr Gorton told the Tribunal that he was "merry" but not overly drunk. After some time drinking together, everyone then went their separate ways.

16. Mr Gorton then saw an US Navy Shore Patrol vehicle and three US personnel on foot. Mr Gorton stated that he knew that US patrols had on occasions taken Australian sailors back to their Royal Australian Navy vessel. Mr Gorton stated that his ship was quite a distance away and that if he did not obtain a ride with the US personnel, then he would have had to take a taxi or "hitched" a ride.

17. The US personnel asked Mr Gorton who he was. He told them his name was "John Gorton" from HMAS Melbourne. The US men laughed at him and said words to the effect that he wanted to be the "boss".. Mr Gorton explained that at that time, Senator John Gorton was the Minister for the Navy in the Australian Government and was known to have had a distinguished service record. Mr Gorton surmised for the Tribunal that perhaps the US personnel thought that he was pretending to be Senator John Gorton and they thought this was inappropriate. Mr Gorton could not recall whether he had his identity papers or his wallet on him, but believed he must have. He also could not recall whether he showed this to the US personnel. Describing the three men, Mr Gorton noted that one man was "bigger" than him, one man was about the same build and one of them was a black American. Mr Gorton believed that his accent would have readily identified him as an Australian, even though he was wearing a US Navy uniform.

18. For no apparent reason, the US personnel began beating Mr Gorton. He tried to defend himself from the initial blows to his stomach made with a baton. He was later hit in the head and throat, he told the Tribunal. Mr Gorton stated that he "went to ground" and tried to protect his head behind the wheel of the vehicle. Mr Gorton told the Tribunal that he thought he lapsed from consciousness. He further stated that he felt like he was dying. Mr Gorton was pulled to his feet by one of the men and the beating started again. Mr Gorton estimated that he was hit approximately 30 times in the stomach and repeatedly about his head, throat and his back.

19. Mr Gorton recalled that he was bleeding from the top left-hand side of his head and from his throat. During the beating, he was repeatedly asked who he was and where he was from. Mr Gorton stated that he did not know whether one or all three of the men were beating him. Mr Gorton further stated that it was difficult for him to estimate the period over which he was beaten. It could have been several minutes or longer. He believed his head was split open, he had black eyes and bruising to his stomach and back - he was "black and blue", he stated.

20. After an indeterminate period, a contingent of British Military Police, the "British Red Caps", arrived and Mr Gorton was handed over to them by the US personnel. He was taken to a caged vehicle. The British Red Caps asked who he was and what he thought he was doing. He was still wearing the US Navy uniform. Again, Mr Gorton told the British Military Police his name and that he was from HMAS Melbourne. Mr Gorton believed that it would have also been obvious to these military personnel that he was not American or British, but an Australian, particularly given his broad Australian accent. Mr Gorton told the Tribunal that the British Military Police started beating him, just as the US personnel had done. Mr Gorton asked these men not to do this, but they continued to hit him with batons on the stomach and back while he was standing. He collapsed to the ground and was then kicked to the point where he again believed that he was rendered unconscious. Mr Gorton told the Tribunal that he awoke finding himself on the floor of the moving van.

21. Mr Gorton did not know how long he was in the vehicle before arriving at what appeared to be police headquarters in Singapore. He was dragged inside and put in a small cell with two other men "from the street". Mr Gorton was continually asked who he was. He was unable to recall whether these men questioning him were US or British personnel. Mr Gorton repeated that he did not know if his identity was checked. He again was unable to recall whether he had his wallet with him at this time, but believed that he did have his identity papers when he was eventually returned to HMAS Melbourne.

22. Whilst in the cell, Mr Gorton stated that his head was held between the cell bars. Other personnel then hit him until he fell down. At that point, Mr Gorton was repeatedly kicked. During this time, Mr Gorton told the Tribunal that he was thinking of his family and everyday life. Eventually, Mr Gorton was left alone and someone later came and cleaned him up with water and a towel. There was no medical examination at any point, either when he was with the US personnel or when he was handed over to the British Red Caps. Mr Gorton was not provided with any medication for pain. Mr Gorton stated that he was later taken by car to a gaol which he believed was off the island and on the mainland. He thought the journey took between 30 minutes and one hour. It was hard for him to estimate the period because he was in constant pain.

23. Mr Gorton told the Tribunal that in this new gaol, which he described as having a long corridor and an open square, he was taken to a cell where he was alone. The cell had bars and inside contained a wooden bench and a bucket in the right-hand corner. Mr Gorton believed that he arrived at the new gaol late at night or in the early hours of the morning. He had no idea what day it was or the date. He recalled that during this period he spent his time lying on the bench, trying to rest and to forget what had just happened to him. Mr Gorton told the Tribunal that he received water and was fed twice per day. He also was allowed to exercise twice per day. There was no medical treatment. He could not recall whether he was incarcerated for one or two days. While incarcerated, he asked a British Sergeant about his ship, HMAS Melbourne. Mr Gorton was told that she had sailed. Mr Gorton recalled that his leave had commenced on a Sunday. He believed that HMAS Melbourne sailed on 14 April 1959, returning on 15 April 1959.

24. Mr Gorton was questioned about a letter dated 30 January 1998 to the British Ministry of Defence, in which he noted that his interrogation by an US Navy Shore Patrol was "reasonable" (T4, p39). Mr Gorton explained that he was attempting to find out information about this incident and did not wish to alienate those from whom he was seeking such information. Mr Gorton told the Tribunal that he wanted to obtain evidence so he could verify that this incident in Singapore did occur and hopefully, put to rest the problems that this incident has caused him many years later.

25. After some indeterminate time, Leading Seaman Alf Cox, from Mr Gorton's ship, accompanied by two other naval personnel, came to the gaol and then returned him to his ship. Mr Gorton told the Tribunal that Alf Cox had previously been a member of the Royal Navy, later joining the Royal Australian Navy. Mr Gorton had told the Board that he had tried to contact Mr Cox to verify his involvement with Mr Gorton but had been unable to do so.

26. Aboard HMAS Melbourne, the first person he saw was the person on watch, then the Executive Officer, and then the Captain. A Charge Sheet (T17, p94) recorded that on 12 April 1959, Mr Gorton was on shore improperly dressed at 4am, wearing a United States Naval Rating's uniform and was drunk. On 16 April 1959, Mr Gorton's punishment was reported as "5 x 9" and "1 x 12", which Mr Gorton thought meant five days in the cell and one day of his pay being "docked". The Officer witnessing this incident was recorded as Lieutenant John Graham McDermott of the Royal Australian Navy and was recorded on a Singapore Naval Patrol Report Number NPM/66/1/59, dated 12 April 1959. Mr Gorton told the Tribunal that he could not explain the date of 12 April 1959 nor had he any recollection of Lieutenant McDermott. All that Mr Gorton could recall was that when he returned to the ship, he saw Commander Stevens on the Quarterdeck with the Captain. Mr Gorton further recalled that the Captain stated to Mr Gorton that he looked as if he had been punished enough. Mr Gorton believed that he was given as a punishment extra duties for five days before and after his rostered duties and that his pay was docked. This punishment related, as he understood it, to his being drunk on shore and being outside the curfew.

27. Mr Gorton stated that the physical scars of his beatings were very evident. He was bruised and had scabs on his neck with further severe bruising on his back and stomach. He told the Tribunal that he did not attend the sick bay as he was just pleased to be alive and aboard the ship. Mr Gorton told the Tribunal he did not want to upset anyone. He recalled that mates told him that he looked like he had "copped a beauty". Contrary evidence to the Board was that he did attend the sick bay and was provided with iodine to dab on his wounds (T20, p106). Mr Gorton told the Board that the advice from the sick bay was that he had to persevere with the healing process which involved scabs forming and then cracking. It was difficult for the healing process to take place in the tropics, Mr Gorton recalled being told.

28. Mr Gorton's evidence to the Tribunal was that the sick bay attendant brought him iodine and cotton wool to treat his wounds. He could not explain why there were no entries in his medical records of his receiving treatment from the sick bay for his injuries arising out of the Singapore incident (Exhibit R9, p39-40). Mr Gorton agreed that his service medical records indicated regular visits to the sick bay for ailments such as a sore throat, bruising, a fall, a cut finger and influenza. Mr Gorton further agreed that he had a number of visits recorded during the 1958/1959 period attending sick bay approximately once per month for such minor ailments. Mr Marsh questioned Mr Gorton as to how it could be possible that such injuries of the severity described by Mr Gorton and causing him at the time of the beatings to feel he was near death, were not reported on his medical records. Furthermore, there was no record on Mr Gorton's discharge of any of the injuries he claimed to have suffered. Mr Gorton could not explain this apart from noting that he was very shaken, did not wish to cause any trouble, and wished to remain quiet and try to recover. On board ship, Mr Gorton described feeling very sore and being unable to squat or bend. To this day, Mr Gorton has cysts which are located on his back and his stomach and around the kidney. He also carries a scar on his chin which he stated is as a result of the incident in Singapore.

29. Mr Gorton told the Tribunal that he left the Navy partly because of the Singapore incident and that he had become disillusioned with the Navy. He also agreed that he had joined the Navy for a period of approximately six years and that when he was discharged, that was at the time his period of engagement was to cease.

30. Mr Marsh put to Mr Gorton that for the purposes of the granting of a Disability Pension, he needed to be able to show that he was ashore in Singapore on operational service during the period between 26 March 1959 and 14 April 1959. This was the purpose of a letter dated 18 May 1998, on Mr Gorton's behalf, from Mr R J McKibbin, Honorary Secretary of the Yamba Sub Branch of the Returned and Services League of Australia, to the Department of Defence Staff Officer Records section in Canberra (T4, p38). Mr Gorton agreed that this was the case but did not agree that he had not mentioned the Singapore incident before. In this regard, Mr Gorton told the Tribunal that he wrote a letter in 1986 to the Department of Veterans' Affairs describing the situation. He had also sought information in order to assist him with a war service loan, again with the assistance of the local RSL club.

31. Following naval service, Mr Gorton worked as a merchant seaman on a dredge, working out of Newcastle. He worked between Newcastle, Sydney and Wollongong.

32. Mr Gorton described his symptoms. He often woke up in a cold sweat and shaking. He did not talk about the Singapore incident but was aware that his mates knew about it. Mr Gorton told the Board that he had written a letter to his mother telling her of the trouble he had in Singapore. Mr Gorton further stated that he gradually got better after the incident in that he could sleep longer but he would often drink alcohol before bed as a sleeping tonic.

33. Mr Gorton married after he left the Navy and did not talk to his wife about his Singapore experience for some time. Mrs Gorton now knows of his beatings. Mr Gorton also stated that after he was first married, he seemed to be coping all right for a while but that in the last two years, it has been harder to cope and he has been more emotional. Mr Gorton described having mood swings. By that he meant that he becomes argumentative, angry and often withdraws. At such times, he may get on his pushbike and rides until he feels better. Mr Gorton described sleeping difficulties, waking up after two or three hours. He dreams about the Singapore incident once or twice per month. A couple of times, he has "swung at his wife" in his sleep. When Mr Gorton has sleep difficulties, he will try to return to sleep by having a cup of tea, a cup of coffee or alcohol. At home, even though his wife is a strong person and supportive, there have been many arguments. Mr Gorton described being in "a turmoil" and knew he had to do something about his symptoms. This is when he sought medical attention.

34. Mr Gorton told the Tribunal that there are times where he may go for some days without any apparent problems and then he finds he again has difficulty with sleeping, his mood swings and temper. Mr Gorton stated that he saw his then General Practitioner, Dr McQueen in the 1970's. Dr McQueen is himself a returned servicemen and Mr Gorton believed that the doctor understood his problems. Dr McQueen encouraged Mr Gorton to make inquiries for assistance through the local RSL Club Sub Branch.

35. Mr Gorton was later referred by his then General Practitioner, Dr C Macdonald of Ballina, to a counsellor, Ms R Harper, who reported on 8 July 1998 that Mr Gorton presented with complaints of symptoms of constant worry, stress and preoccupation with a trauma that occurred during his naval service (T11, p67). Mr Gorton recalled seeing Ms Harper but did not recall telling her about having "survivor guilt" from his service in HMAS Melbourne. Mr Gorton continued to see Ms Harper on a regular basis.

36. Mr Gorton stated that he had previously seen a psychiatrist, Dr Phillpot, in 1994 or 1995. (It is noted that there is reference in the material to a psychologist, Mr G Phillpot, who had treated Mr Gorton as part of a rehabilitation programme following a work injury in 1994). That was at a time he was working in the local RSL Club as a casual employee. He believed that he saw Mr Phillpot in connection to a work injury and its consequences following an incident when he jammed his right knee in a door. Mr Gorton stated that he had also found out that he was examined by a Navy psychiatrist, but had not known of this fact until recently. He believed that all sailors were examined by a psychiatrist as a routine matter.

37. In the mid-1990s, Dr Macdonald referred Mr Gorton to a psychiatrist, Dr I Hayes. Dr Hayes first reported to Dr Macdonald on 18 August 1998 (T5, p44-45). Initially, Dr Hayes saw Mr Gorton every two weeks, but now the consultations occur every six weeks. Dr Hayes has recommended that Mr Gorton take medication but Mr Gorton does not wish to do so.

38. Mr Gorton described for the Tribunal that he is a member of his local RSL Club. He had been asked to be an inaugural member to make up the numbers . He is just an ordinary member and has no special role. In relation to friendships, Mr Gorton told the Tribunal that he finds it hard to form intense friendships. He cannot settle enough to be someone's best friend and is very uncomfortable with this prospect. Mr Gorton did not deny however that he has some "good mates". If he feels stressed, Mr Gorton will often end up in a corner as an "emotional mess".

39. In terms of his alcohol consumption, Mr Gorton stated that he did not drink before joining the Navy as he was too young. When aboard ship, he would drink approximately one bottle of beer per day. When on shore leave, he told the Tribunal that he would often drink through the night. After naval service, Mr Gorton stated that he had more free time and accordingly consumed more alcohol, with ten schooners of beer per day a normal consumption. In more recent times, his wife has assisted him by staying with him when he drinks and then encourages him to not consume too much. On some days, he may only consume two schooners of beer. Mr Gorton told the Tribunal that he brews his own beer.

40. Mr Gorton was adamant in his evidence to the Tribunal that the incident in Singapore did happen. He denied raising this incident for the first time in order to bolster his claim for a service-related psychiatric condition. Mr Gorton told the Tribunal that discussing his service in Singapore with doctors and others makes it harder and harder for him to cope, not just because there is doubt as to whether or not the incident occurred, but because of the memories and reliving of the experiences that discussion about the incident evokes. Mr Gorton explained that he is preoccupied with the Singapore incident and often cannot stop thinking about it.

41. Mr Gorton has tried to find out about the incident in Singapore. In this regard he has attempted to find out where he was locked up and for how long. He believed that if he was able to verify this information, it might help him to get over his problems. He has written to the British and US Military Police but with little success. He also sought the assistance of the local RSL Club Sub Branch. He also sought assistance through his local Member of Parliament in the 1970's and 1990's.

CONCURRENT EVIDENCE OF DR A DINNEN, CONSULTANT PSYCHIATRIST AND DR R DELAFORCE, FORENSIC PSYCHIATRIST

42. Dr Dinnen and Dr Delaforce agreed to provide evidence concurrently. This was very useful for the Tribunal in its consideration of the correct diagnosis of Mr Gorton's psychiatric condition and its causation. The process involved each doctor being provided by the Tribunal with a written summary of Mr Gorton's oral evidence. Each doctor then provided a brief summary of his particular opinion followed by the opportunity for the doctors to question each other about their various views. The Tribunal then questioned Dr Dinnen and Dr Delaforce followed by the opportunity for questions by Mr Price and Mr Marsh. At the end of this process, each doctor provided a brief concluding summary of his opinion.

43. Dr Dinnen provided a summary of his opinion, having provided a report dated 9 May 2001 (Exhibit A1). Dr Dinnen noted that he had interviewed Mr Gorton once during which time Mr Gorton was very visibly upset. Dr Dinnen noted that Mr Gorton served in the Navy for six years. In his summary of opinion provided at the hearing, Dr Dinnen opined that Mr Gorton experienced a traumatic event in Singapore in 1959 when he was beaten at the hands of the American and British shore patrols. Dr Dinnen opined that Mr Gorton suffers from post traumatic stress disorder and exhibits ongoing symptoms of psychological stress. He reacts to reminders of the event, he has an avoidance of memories to do with that event and has the classic features of avoidance and re-experiencing including "heightened arousal".. Dr Dinnen stated that he would find it difficult to substantiate any diagnosis if it was his view that the account was false or embellished. It would signify a significant fraud and cause Dr Dinnen to wonder about all aspects of the patient's circumstances and character over the years.

44. Dr Dinnen noted that he spent one hour with Mr Gorton whereas Dr Delaforce spent three hours. Dr Dinnen noted his experience over many years in the assessment of traumatised individuals. Dr Dinnen noted that he is always careful in such interviews not to go into traumatic memories in too much detail and will stop once he is satisfied there is enough material for him to form an opinion. Dr Dinnen did not agree that the fact that his examination took less time than Dr Delaforce's, indicated that it was any less probing. Dr Dinnen noted that he always worked on that basis, that one should be able to quickly formulate a diagnosis of a condition and that during the interview the psychiatrist would also forensically establish the full circumstances around which to hang the framework of the diagnosis and the reasoning to justify that diagnosis. Dr Dinnen noted that one of the problems in spending three hours with a patient who is suffering from post traumatic stress disorder is that the examination may make the patient worse. Dr Dinnen noted that in medicine there is a principal "Primum non nocera" which means that the first responsibility of the physician is not to harm. Dr Dinnen stated that if he restricts his assessment to an hour, it is because he can do the job in an hour. If there is need for longer time then he would take it.

45. In terms of the difference in an approach that Mr Gorton may have towards Dr Dinnen, as Dr Dinnen was the psychiatrist reporting for the Applicant as compared with his reaction to Dr Delaforce whose services had been engaged by the Respondent, Dr Dinnen noted that one had to be realistic about such matters. There may well be some subconscious prejudice which neither Dr Dinnen nor Dr Delaforce could do anything about. But Dr Dinnen noted that coming to a Tribunal or a Court, an expert must ensure that he or she is objective, as accurate as possible and not being swayed by whoever is paying for the expert opinion. Dr Dinnen opined that for the patient concerned, the harrowing aspect of the whole experience is not necessarily who they were being examined by but the fact that they have to see yet another person and provide yet another history and answer questions.

46. Specifically in relation to Mr Gorton, Dr Dinnen noted that he had not seen a more graphic account of a traumatic event or a clear description of ongoing symptoms as was seen with Mr Gorton. It is a "classic story". On the information that Dr Dinnen had, Mr Gorton's circumstances as he described them could not be knocked out or shown to be fabricated. Dr Dinnen noted that there is a report that Mr Gorton was punished and he also had been on shore and had been charged wearing an American naval sailor's uniform. He had told his mother by writing to her and had told his mates about what had happened. Mr Gorton noted that his name is John Gorton and Dr Dinnen could well understand that if he did something wrong ashore and was questioned by the military police, giving his name as John Gorton, that that fact may have been a relevant factor in what he said subsequently happened to him. Considering the documents and other evidence in combination with Dr Dinnen's examination of Mr Gorton, Dr Dinnen concluded that what Mr Gorton said had a ring of truth to it. Mr Gorton gave an account which was spontaneous and the emotion he expressed was appropriate, indicating he had very traumatic experiences and memories. His demeanour was dignified and credible, Dr Dinnen opined.

47. There was no previous history that suggested any anti-social or dysfunctional behaviour through the years in terms of his relationship with authority. Dr Dinnen noted that the way that Mr Gorton attempted to regain his composure and to control his emotions was consistent with a genuine account. On the other hand, people who are fabricating tend to "lay it on, either a bit too thick or a bit too shallow".. Mr Gorton exhibited the right balance at interview of a man who has been emotionally effected by an experience. The second time that he was tearful during Dr Dinnen's examination was very significant because he was talking about his reaction in the sense of the assault to his pride and sense of dignity. It is very common, Dr Dinnen opined, in those who are emotionally effected by traumatic events to sometime afterwards express this view. It annoyed Mr Gorton that he would break down and became emotional. People who are making up stories do not usually express that view, Dr Dinnen commented. The overall pattern of his behaviour and his evidence was consistent with the documentation.

48. Dr Dinnen assured the Tribunal that he always had in his mind whether or not the patient is making up a story, but in Mr Gorton's case, he did not think there was any such embellishment. Dr Dinnen acknowledged there were inconsistencies or gaps in the evidence but he did not think this exposed any serious credibility issues. It did not disturb Dr Dinnen's opinion of Mr Gorton's credibility that when trying to ascertain details from various authorities about what happened to him in April 1959, Mr Gorton had referred to his alleged interrogation as "reasonable" (T4, p39). From the Tribunal's summary of Mr Gorton's evidence, he noted Mr Gorton's statement that talking about his Singapore experiences makes it harder and harder for him to cope - not just because there is doubt as to whether or not the incident occurred, but because of the memories and reliving experiences that discussing the incident evokes. To Dr Dinnen, this indicated very strong evidence supporting the diagnosis of post traumatic stress disorder. Dr Dinnen noted that one of the biggest traps with a story such as Mr Gorton's, which is so dramatic, is that everyone focuses on that in great detail and that causes great emotion. The difficulty as a psychiatrist in dealing with such a colourful story is that it may take up the whole consultation and then other matters may be covered up by that story. Dr Dinnen stated that he tries as much as possible to get a balanced account about the person's life history as well. The history taken by the Tribunal was about the incident and its consequent effect. The history that Dr Dinnen took, he considered, was reasonably adequate in terms of Mr Gorton's life history.

49. Dr Dinnen noted that when someone has something nasty happening to them, it is clinically a very common experience that the person's perception of time changes. Thus, what might be a very short event may seem to have occurred over an hour. In terms of Mr Gorton's recollection of the time he was away from the ship, his perception of that time is possibly entirely different from reality. He may have been in gaol on the mainland for two days or he may have been in the gaol in Singapore and on the mainland for four or five days. All that is known is that he went ashore and he came back. His recollection was that this occurred over a period of days. Dr Dinnen did not think that anything particularly hung on that perception. The more important question is to ask the person not how many days they were away from the ship but did it seem like a long time. Dr Dinnen noted that in the evidence Mr Gorton gave in 2001, he indicated that he was in the cells for one or two days. Whether a person can remember specific elements of a traumatic experience is well understood. A great deal of this knowledge came from evidence arising out of war crimes trials based on events 30 or 40 years ago in which people gave clear testimony because the events are traumatic and so emotionally charged, that they remembered them for years. It is the events occurring around a traumatic incident which are often not so well remembered.

50. In relation to Dr Delaforce's concerns that Mr Gorton could not remember if he had lost his watch or wallet following the incident, Dr Dinnen noted that most people who have been in a nasty situation having been beaten up would not take much account of their personal possessions. Dr Dinnen used the example of a person going into hospital for surgery. The hospital authorities ensure that the patient's personal possessions are taken from the person for safe keeping because otherwise the patient forgets about them in their concern about impending surgery. Thus, when concerned about being beaten to a pulp one might not be concerned with the whereabouts of a watch or a wallet. Dr Dinnen also stated that account must be taken of these events occurring 40 years ago.

51. The fact that Mr Gorton was placed on extra duties when his evidence had been that he had been beaten very severely could also be explained, Dr Dinnen believed. The evidence indicated to Dr Dinnen that Mr Gorton was not beaten within an inch of his life, but that he felt or perceived that he was. He thought he was going to be killed. The reality was that back on board HMAS Melbourne, he was not suffering from any treatable injury in that he had no broken bones or wounds which required attention. Dr Dinnen considered that Mr Gorton had a significant beating. It seems that he was in some cells somewhere for a period of time which then made him more apprehensive about the consequences. When back in HMAS Melbourne, Dr Dinnen concluded that Mr Gorton's injuries were severe enough for him to find it difficult to function for a few days but not to the extent that he required medical attention. The fine detail of what actually happened is lost in time, Dr Dinnen emphasised and it is not possible to obtain any corroborative evidence. Whether Mr Gorton was locked up for one, two or three days must be taken in the context of his great apprehension at the time that he was going to be incarcerated indefinitely. He knew that HMAS Melbourne had sailed. It is not unreasonable, Dr Dinnen opined, to conclude that what Mr Gorton experienced as a 19 year old was very much a traumatic experience and had a traumatic impact on him emotionally as well as physically.

52. Dr Dinnen opined that the concerns raised by Dr Delaforce (which are detailed later in this decision) are explicable. For example, looking at the lack of detail of the bashings in the psychologist, Mr Phillpot's report, Dr Dinnen noted that psychologists are not medically trained and do not understand illness. That someone would present with a sore knee and who was also reporting anxiety, requires considerable forensic skill and expert inquiry. Dr Dinnen agreed with Dr Delaforce that there may be an element of double dipping in Mr Gorton's approach, but stated this is not uncommon when one considers the importance of accumulative stresses. In this regard, a soldier who has post traumatic stress disorder from being a prisoner of war in Japan, for example, going through the course of his life, in a general sense, is going to be more vulnerable to other stresses. Thus, in Mr Gorton's experience, incidents which may not be related to his experience in Singapore are going to have greater impact because he has already a certain level of anxiety and dysfunction. A person, such as Mr Gorton, who has some physical injury and who reports anxiety may well have a pre-existing psychiatric condition.

53. In terms of the diagnosis of post traumatic stress disorder, which Dr Dinnen continued to espouse, he did not consider that the alcohol dependence or abuse was a separate condition, but rather a subsidiary to post traumatic stress disorder. Dr Dinnen noted that Mr Gorton had been able to adjust his drinking pattern over the years and at times alcohol consumption gave him solace. The primary diagnosis however is post traumatic stress disorder. Mr Gorton was noted by Dr Dinnen to be abstinent from alcohol at the time of the hearing but there may have been occasions in the past sufficient to justify a diagnosis of psychoactive substance abuse.

54. Dr Dinnen opined that the onset of the post traumatic stress disorder occurred at the time of the assault. The actual clinical onset was clearly from the time it was first diagnosed and that would have been when Mr Gorton came to the attention of his General Practitioner, Dr Macdonald, who subsequently referred Mr Gorton to Dr Hayes, Psychiatrist. Dr Dinnen later stated that post traumatic stress disorder could well have been sub-clinical or latent up until 1998.

55. Dr Dinnen was asked to consider a possible diagnosis in the hypothetical situation of there being no beating in 1959. In those circumstances, Dr Dinnen opined that an appropriate diagnosis could be generalised anxiety disorder. Relevant to that diagnosis could be other stressors such as the knee injury. Dr Dinnen noted that there were other symptoms of sleeplessness, drinking heavily, bursts of anger, mood disturbance and the emotional problems exhibited at interview. Mr Phillpot, Psychologist, had expressed a similar diagnosis but Dr Dinnen stated that there could well have been an underlying post traumatic stress disorder present. At the time Mr Phillpot examined Mr Gorton he opined a history with anxiety symptoms apparently relevant to a knee injury.

56. Dr Dinnen noted that it was common to have a diagnosis of anxiety disorder in terms of one compensation forum, yet in another forum, Disability Pension area, there could be another diagnosis, in Mr Gorton's case, of post traumatic stress disorder. In any event, the psychologist's diagnosis of anxiety disorder was not a psychiatric evaluation. There had been no proper assessment undertaken. What the psychologist was referring to were symptoms of loss and grief associated with Mr Gorton's employment options, his lack of life direction, anger and resultant disruption to relationships, frustration at his physical inabilities and lack of income. All these symptoms lead to a high level of anxiety, Dr Dinnen opined. But Dr Dinnen's view was that underlying these symptoms was the post traumatic stress disorder.

57. Dr Delaforce had interviewed Mr Gorton over a period of three hours and provided a report dated 24 July 2001 (Exhibit R2). In preparation for providing concurrent evidence to the Tribunal, Dr Delaforce had read the transcript of the first day's hearing and had also been provided with a copy of a summation of the evidence provided by Mr Gorton on 22 November 2001. Dr Delaforce also had available to him the relevant Statement of Principles and a report from Psychologist, Mr G Phillpot (Exhibit R11). When Dr Delaforce interviewed Mr Gorton, he was surprised with the force of the distress exhibited by Mr Gorton and noted that it was in the "top ten" in terms of level of distress that he had seen in his 30 years of psychiatric practice.

58. Dr Delaforce noted in relation to Mr Gorton's level of distress:

"Now, I was surprised about that but I accepted that as genuine and in fact that was conclusive to me to indicate that if he presents so much distress to me it adds to the genuine nature of his claim, putting it another way, if somebody claims that they were traumatised, claims that they get distressed when they think about the trauma, claims that they have bad dreams about it and then they are sitting comfortably in your room and they are talking to you about it and there's no or little emotion about the trauma, well, that is-that is of concern. It was because he expressed so much that I thought that must be genuine." (Transcript, 1 May 2002, p12)

59. Dr Delaforce then considered other evidence provided by Mr Gorton such as evidence that he was not aware whether or not he had lost his wallet or watch. Dr Delaforce stated:

"Now, I count my watch, and especially my wallet as- as, you know, its part of my body, it is absolutely essential and I know where it is at every moment, and that really struck me, especially for a man who could give such detailed accounts of the beatings, when with both the US and British Military Police." (Transcript, 1 May 2002, p13)

60. Dr Delaforce acknowledged that the event that Mr Gorton relied upon occurred some 40 years ago and that people may have difficulties remembering that far back and may embellish events, even unconsciously. What has occurred now however and must be considered is that Mr Gorton is so preoccupied with his claim. Of further concern to Dr Delaforce in terms of credibility was that Mr Gorton had not told his wife about the beatings although Dr Delaforce acknowledged that serviceman in combat would consistently not talk about these events to their wives but they do often tend to talk with their veteran colleagues. Dr Delaforce noted that he put himself in that situation, where, if he had been bashed, that he would tell his wife and in fact would tell everybody. (Transcript, 1 May 2002, p13) Dr Delaforce also noted Mr Gorton's evidence that after the beatings he was injured, so that he could not squat, lift or bend for a long time. This evidence seemed inconsistent with Mr Gorton being provided with increased duties for punishment. Mr Gorton also avoided seeking medical attention.

61. Dr Delaforce referred the Tribunal to the report prepared by Mr Phillpot (Exhibit R11). Mr Phillpot had reported to Centrelink about Mr Gorton's rehabilitation program to assist with a knee condition and its consequences. Dr Delaforce noted that Mr Phillpot is a very capable psychologist and it surprised Dr Delaforce that Mr Phillpot made no reference to Mr Gorton's bashing while in the Navy in Singapore. Having said this, Dr Delaforce acknowledged that Mr Gorton was specifically seeing Mr Phillpot in relation to his rehabilitation program for his knee which had been injured at work. The lack of detail about such a significant past history raised a further issue for Dr Delaforce about Mr Gorton's credibility and as to whether or not Mr Gorton may be double dipping, in that he was seeking compensation via a Disability Support Pension from Centrelink for a knee condition and also seeking compensation from the Repatriation Commission for symptoms related to a psychiatric condition. The symptoms reported by Mr Gorton for both conditions seemed similar. Dr Delaforce noted that since preparing his report, his doubts about Mr Gorton's credibility have increased considerably encompassing the areas from diagnosis to causation and meeting the requirements of the Statement of Principles.

62. Because Dr Delaforce was not satisfied as to the veracity of Mr Gorton's evidence including about the beating, it made it impossible for him to make a diagnosis. Dr Delaforce noted he has considerable experience and interest in forensic psychiatry. Dr Delaforce noted that when he sees a patient for medico- legal purposes, he is not only interested in what the patient says, but he also investigates what documents are available. Dr Delaforce stated that he did not contact either the psychologist, Mr Phillpot or Dr I Hayes, Psychiatrist, to confirm or disprove his views about Mr Gorton's credibility. The Tribunal notes, nor did Dr Dinnen. This was not possible given the confidentiality issues associated with both those practitioners seeing Mr Gorton.

63. Dr Delaforce noted that initially he had given Mr Gorton the benefit of the doubt but it had become more difficult to do that. Dr Delaforce stated that he was not saying that Mr Gorton is a liar or a malingerer. Further in evidence, Dr Delaforce stated that he raised as a possibility that there may be difficulties with the veracity of Mr Gorton's evidence but stated that he did not have the evidence to say that Mr Gorton was malingering (Transcript, 1 May 2002, p36). Dr Delaforce was raising the difficulties with the veracity of the evidence as a possibility. He was not saying that everything was a total fabrication, but noting that malingering does include a deliberate exaggeration and furthermore that that could include noting symptoms which arose out of Mr Gorton's knee condition which in fact seemed transferable to the bashing.

64. What Dr Delaforce was doing was to raise possible doubts. and it was then up to the Tribunal to make findings of fact. Dr Delaforce did what he considered to be appropriate in raising matters that are of concern to him. Dr Delaforce expanded on his view that with the evidence provided by Mr Gorton, it was in the area of speculation for example as to what happened ashore and how Mr Gorton became separated from the other people. If one accepted everything that Mr Gorton said, then Dr Delaforce stated that that could:

"...lead us to a diagnosis of post traumatic stress disorder, adjustment disorder or anxiety disorder not otherwise specified. I accept the diagnosis, one of them, some type of mental disorder and I would go further and say the claim is successful...but this still on the assumption that what he is telling us - all that happened...I could emphasise though that in that scenario where we just accept everything, there is a mental disorder...I could only attempt a diagnosis if I was asked to assume the certain facts, but to finalise, if we assume all that he says is correct, we interpret all the inconsistencies, etcetera, in his favour, he has a mental disorder and it satisfied the SOPs". (Transcript, 1 May 2002, p31)

65. The problem for Dr Delaforce, is that a diagnosis should be based on reasonably correct information which is coherent and consistent and this is certainly not the case with Mr Gorton's evidence. There are thus doubts, suspicions and inconsistencies in the evidence which included the problems of: not telling Mr Phillpot of the "bashings" in Singapore; not telling anyone what had happened to him, not even Mr Cox when he came to pick him up from gaol and return him to HMAS Melbourne; not telling his wife or his mates that he had been beaten; the severity of Mr Gorton's reported injuries in the context of no medical attention being provided and Mr Gorton being provided with extra duties as part of the punishment for his misdemeanours. Later, on the issue of diagnosis, Dr Delaforce noted that under DSM-1V (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association) there is a category, "diagnosis deferred, insufficient information" (Transcript, 1 May 2002, p42). That diagnosis can be made in circumstances where there is uncertainty and that fitted the circumstances in Mr Gorton's case where there was doubt as to the veracity of his evidence. Dr Delaforce stated that as an expert witness, he considered it appropriate to be cautious about such matters.

66. In the context of his appearance before the Tribunal, Dr Delaforce stated that he appeared to assist the Tribunal in making its decision. What he had undertaken was an assessment or an investigation. He was not there to harm Mr Gorton but to provide, as he believed he did, an extremely comprehensive report. It rarely happened, in Dr Delaforce's years of forensic psychiatry, that he found that people were not credible. Dr Delaforce stated that he did look for inconsistencies, it is an essential part of forensic psychiatry. Dr Delaforce considered himself however to be absolutely fair and it was not common at all that he would raise credibility as an issue. Dr Delaforce has a reputation for thoroughness and prided himself on this.

67. Referred to his diagnosis of alcohol abuse, Dr Delaforce again noted that that diagnosis was only based upon Mr Gorton telling him that he increased his alcohol consumption after the bashing on shore. Again there was inconsistency because in evidence Mr Gorton had also stated that there was no increase in alcohol consumption. If that evidence was correct, then alcohol abuse would not be present because the drinking had started before the Navy and had continued, on Mr Gorton's evidence, at the same level. Later in the evidence in relation to alcohol abuse, Dr Delaforce confirmed that the diagnosis of alcohol abuse remained but that the issue of causation related to service was not made out.

68. In relation to the diagnosis made in his report of adjustment disorder, Dr Delaforce noted that there was a problem once again, in the evidence and what was considered to be the stressor. If there is so much doubt about the stressor, which Dr Delaforce opined was the case, then there has to be doubt about a diagnosis of adjustment disorder as with the other possible diagnoses.

69. If Dr Delaforce were to take out of his consideration the 1959 event, he stated that the diagnosis would probably be adjustment disorder with the stressor being the fire that Mr Gorton had experienced or the tremendous loss of money he had faced and the knee injury. Any one of those could be a significant stressor causing psychiatric disorder. Dr Delaforce agreed with the proposition that Mr Gorton has a mental disorder of some type but it is not able to be related on the information back to the 1959 incident. Thus, in summary, with the inclusion of consideration of the 1959 event, Dr Delaforce saw that there was no psychiatric diagnosis able to be made because of the lack of consistent clear reliable information. In the absence of the 1959 event, then Dr Delaforce opined there is a cluster of psychiatric symptoms that could be diagnosed as adjustment disorder. Dr Delaforce agreed that there was common ground between the symptoms reported by Mr Phillpot and the symptoms reported by Mr Gorton and Dr Delaforce.

70. The fact that Dr I Hayes, Mr Gorton's treating psychiatrist since 1998, has diagnosed and treated Mr Gorton for post traumatic stress disorder did not cause Dr Delaforce to change his view because he saw the treating role as different from the medico-legal role. As a treating doctor, one tends to accept what people say whereas this is not the role of the medico-legal expert. Dr Delaforce noted that he had no problems with Dr Hayes' report, but doubted that anyone had assessed Mr Gorton in such detail and in a comprehensive manner as he had done. If Dr Delaforce had seen Mr Gorton as a patient and not in the sense of examining him for medico-legal purposes or a forensic investigation, that would be an entirely different scenario. Dr Delaforce stated that in those circumstances, he might be more likely to accept the version of events as described by Mr Gorton with the view then to treatment.. The treating psychiatrist is there to help and treat patients and make him or her well.

71. In his final comments to the Tribunal about diagnosis, Dr Delaforce noted that as a result of his forensic examination and consideration of all of the material available, he must change his diagnosis from adjustment disorder to now preferring to leave it in the words of DSM-IV, that the diagnosis had to be deferred because of insufficient information. Absent the 1959 incident, Dr Delaforce concluded that Mr Gorton has some mental disorder related to subsequent stress.

72. Dr Delaforce wanted to emphasise that he takes his time to undertake such assessments as he did with Mr Gorton but he does not traumatise people and covered a great deal of material in the three hour interview. Dr Delaforce noted that as experienced as he is and with his training, he does not have the ability, which Dr Dinnen claimed, of being able to sum up a person within five minutes of them walking through his door. Dr Delaforce concluded that he assesses people as long as necessary, citing the example of having assessed people for eight hours in a Supreme Court murder matter or in other matters for one hour.

EVIDENCE OF MR G PHILLPOT, CONSULTING PSYCHOLOGIST

73. Mr Phillpot provided a report dated 31 October 1997 to Centrelink, Ballina, having been asked to report on Mr Gorton's psychological incapacity as a result of his right knee injury whilst working as a doorman at the Balina, RSL Club (Exhibit R11, p11). Mr Phillpot had previously treated Mr Gorton as part of a rehabilitation program teaching him relaxation techniques and strategies for minimising stress and anxiety. Mr Phillpot reported on the type of work Mr Gorton undertook at the Balina, RSL Club. Mr Phillpot concluded that Mr Gorton suffered from anxiety compounded by his experience of pain. He had symptoms of loss and grief associated with his employment options, anger, teariness, frustration at his physical inability and lack of income (Exhibit R11). Mr Phillpot assessed Mr Gorton as having a ten per cent impairment from Table 7: Psychiatric Impairment, contained within Schedule 1B to the Social Security Act 1991.

EVIDENCE OF DR I HAYES, PSYCHIATRIST

74. Dr Hayes provided reports dated 18 August 1998 (T5, p44) and 13 October 1998 (T8, p56).

75. In his report of 18 August 1998, Dr Hayes noted that while serving in the Navy, Mr Gorton was arrested following a prank in which he dressed in an American naval uniform. Dr Hayes noted a history of Mr Gorton then being assaulted by military police in addition to being imprisoned in Malaya whilst serving in the ship HMAS Melbourne which left port without him. Dr Hayes further noted that Mr Gorton was rescued by a crew member once HMAS Melbourne returned to port.

76. It is Dr Hayes' opinion that the physical trauma and the misunderstanding of that incident acted as stressors for post traumatic stress disorder which has effected Mr Gorton ever since. Dr Hayes noted symptoms of flashbacks and hypervigilance. Mr Gorton is overly worried about his family, avoided RSL events and is relatively isolated. Furthermore, Dr Hayes reported that Mr Gorton is over aroused, irritable and sleeps poorly. He is easily distracted and finds numerous events trigger off memories of his assault. Dr Hayes noted that Mr Gorton has attempted to obtain recognition for these events, but on each occasion when this has been rejected, the rejection has sparked off further symptoms. In addition to the symptoms of post traumatic stress disorder, Dr Hayes opined that Mr Gorton is alcohol dependent. At the time of reporting, Mr Gorton was consuming an average of six units of alcohol daily but following discharge from the Navy and during the early 1970s in the Merchant Navy he was drinking very heavily.

77. Dr Hayes noted a knee crush injury in 1994 which has limited Mr Gorton's mobility and possibly heightened his symptoms, adding to his sense of helplessness. In addition to his psychological symptoms, Mr Gorton also experiences abdominal pains, has numerous cysts on his scalp, the site of the assault by the military police. Dr Hayes concluded that Mr Gorton has post traumatic stress disorder and substance abuse, both being related to his experience in the Navy, particularly his assault and subsequent imprisonment in Malaya.

78. In his report of 13 October 1998, Dr Hayes confirmed his opinion that Mr Gorton has a clear post traumatic stress disorder directly related to traumatic experiences in 1959 when he was beaten and imprisoned in gaol in Malaya. This condition has been perpetuated partly by Mr Gorton's perseverant personality style, Dr Hayes opined, but more particularly by the consequences of physical symptoms which resulted from this beating and by the lack of recognition and inability to obtain acknowledgment of these service experiences. Dr Hayes noted that Mr Gorton was about to embark on a process of psychotherapy and that Dr Hayes would be seeing him on a regular basis (T8).

EVIDENCE OF DR C MACDONALD

79. Dr Macdonald provided a report dated 19 April 2001 (Exhibit A2). Dr Macdonald noted that Mr Gorton was contesting that the "physical trauma he received in Singapore on the 11th and 12th April 1959, at the hands of US Navy shore patrol and British army military police resulted in lumps on his head, abdomen and back".

80. Dr Macdonald distinguished the lumps on the scalp and those on Mr Gorton's trunk. He opined that the lumps on the scalp were dermoid implantation cysts and that it was a very reasonable hypothesis that these implantation dermoid cysts were caused by trauma on 11 and 12 April 1959. The lumps on the trunk were considered by Dr Macdonald to be "lipomas or fibro-lipomas or possibly old areas of fat necrosis".. It was difficult to be precise about the nature of the trunk lumps without removing the lump to analyse it. Dr Macdonald opined that fat necrosis and fibrous tissue under the skin can result from trauma.

81. Dr Macdonald concluded that he agreed with the opinion of Consultant Surgeon, Dr D M Townend, that given the history of service-related trauma, it is a very reasonable hypothesis that the lumps are a direct result of that trauma.

EVIDENCE OF DR D M TOWNEND, CONSULTANT SURGEON

82. Dr Townend provided a number of reports, dated: 15 December 1998; 16 February 1999; 14 March 2001 and 4 April 2001 (Exhibit R7). Mr Gorton had been referred to Dr Townend by his General Practitioner, Dr Macdonald.

83. Dr Townend noted that he first examined Mr Gorton on 12 June 1992 at which point he was noted to have cysts on his scalp which looked like simple sebaceous cysts. Dr Townend next saw Mr Gorton on 6 December 1998 at which point the cysts on his scalp had grown in size and Mr Gorton also pointed out lumps on his lower back on the left side and on the abdominal wall and at that time, Dr Townend considered these were probably lipomas. An ultra sound performed on 20 November 1998 showed lipomas with a fibrous element measuring between 6 and 15 mm in diameter. Dr Townend removed the cysts from his scalp. Mr Gorton next consulted Dr Townend on 17 March 2001 at which point the lump in his left lower back was worrying him and causing tenderness if he was sitting for any length of time. The lump on the anterior abdominal wall on the right side was not causing any obvious discomfort at that point. At that time, Mr Gorton mentioned that he believed the lumps had been present since he suffered an assault many years ago when in the defence services and the question arose, including concerning the cysts, as to whether or not they could have been related to that assault.

84. In relation to the lumps on Mr Gorton's scalp, Dr Townend opined that these are different from the ones on his trunk. Initially Dr Townend had thought that the scalp lumps were simple sebaceous cysts, however he opined that it is conceivable that they could be implantation dermoid cysts which can arise as a result of trauma where elements of the skin become buried beneath the skin's surface and start to form lumps which gradually grow inside as years go by.

85. Mr Gorton had noted to Dr Townend that he did have lacerations or cuts to his scalp which were not sutured at the time of an assault in the Navy. The lumps on Mr Gorton's trunk are different. They are most likely lipomas or fibrolipomas or possibly old areas of fat necrosis. Trauma can result in areas of fat necrosis and fibrous tissue under the skin and without removing one of the lumps, one could not be sure whether it is a fat necrosis or a simple lipoma which are very common and probably not related to trauma.

EVIDENCE OF DR E LOBEL, OCCUPATIONAL DERMATOLOGIST

86. Dr Lobel provided reports dated 14 November 2001 (Exhibit R4) and 19 November 2001 (Exhibit R5). Dr Lobel noted that he had not examined Mr Gorton and his reports were based entirely on information provided in reports from General Practitioner, Dr Macdonald and Dr Townend, Consultant Surgeon.

87. Dr Lobel noted that Dr Macdonald carried out a biopsy of one of the two scalp lumps and the biopsy report confirmed the clinical diagnosis of sebaceous cyst. Implantation dermoid, as noted by Dr Townend, has a specific recognisable histopathology as has a sebaceous cysts. Dr Townend had removed both the scalp cysts and the pathology report of the excised cysts was not included in the notes but a letter from Dr Townend to Dr MacDonald dated 16 February 1999, stated that the two sebaceous cysts were exercised. Dr Lobel assumed from that letter, that the histopathology of the excised lesions was reported as sebaceous cysts and not implantation dermoids.

88. A report of an ultra sound of the abdominal wall and back, dated 20 November 1998, indicated that the lesions on the abdominal wall and back were "consistent with lipomata with a fibrous component". Dr Lobel noted that lipomata always have a variable degree of fibrous tissue and when the amount of fibrous tissue is significant, they are called fibrolipomata and when the fat tissue dominates and fibrous tissue is relatively insignificant, they are called lipomata. The indications from the ultra sound were that these were normal fibrolipomata. Fat necrosis due to trauma would leave scar tissue and not fibrolipomata or lipomata. On the evidence in the reports from Dr Macdonald and Dr Townend, Dr Lobel opined that he would be unable to relate the cysts on Mr Gorton's scalp, abdomen and back to any trauma in the past.

89. In his second report dated 19 November 2001, Dr Lobel further opined in relation to the differential diagnosis of Mr Gorton's cysts, that there are two conditions which can be clinically very similar or virtually indistinguishable from sebaceous cysts. Once of these is an epidermic cyst which can only be distinguished on pathological examination. The other differential diagnosis as stated in Dr Townend's report is that of an implantation dermoid. This type of cyst is caused by trauma, specifically penetrating trauma which implants a piece of skin in the deep layers of the skin and subcutaneous tissues and cells of that little piece of embedded skin continue to divide and multiply and form themselves into a dermoid cyst. The histopathology of a dermoid cyst is quite distinct from that of a sebaceaous cyst. The cause of sebaceaous cysts is unknown. The lumps on Mr Gorton's abdomen and back, either lipomata or fibrolipomata occur in two different types, Dr Lobel noted. One is a genetic variety and can be painful, the other is an idiopathic form which means a form for which the cause is unknown. Like sebaceous cysts, it is a very common finding on routine examination of the skin or body. They are benign and of an unknown cause. Dr Lobel had not seen any scientific evidence that true sebaceous cysts or fibrolipomata can result from trauma. Dr Lobel had never seen any sebaceous cysts or lipomata/fibrolipomata ever having been caused by trauma.

EVIDENCE OF COMMODORE P M MULCARE, WRITEWAY RESEARCH

90. Commodore Mulcare provided two reports dated, 24 September 2000 (R1) 8 November 2001 (R3). Commodore Mulcare noted the known facts of this matter that on 0040, Sunday, 12 April 1959, Mr Gorton was apprehended in Singapore by a shore patrol. On 0740, Tuesday, 14 April 1959, HMAS Melbourne sailed from Singapore. On 1700, Wednesday, 15 April 1959 HMAS Melbourne berthed in Singapore Naval Base. On Thursday, 16 April 1959, Mr Gorton appeared before the Executive Officer of HMAS Melbourne and was found guilty on two charges of being improperly dressed on shore on 12 April 1959, namely wearing a United States Naval ratings uniform and also being drunk on shore at 0040. Commodore Mulcare reported that there was no reason to doubt Mr Gorton's claim that a United States Shore Patrol apprehended him, probably because he was drunk, as leave for United States Junior Sailors in Asiatic ports usually expired at 0100. Commodore Mulcare opined that it would not have taken long to establish that Mr Gorton was not an American and he would have been handed over to the British Commonwealth Patrol, possibly the British Army Red Caps, as Mr Gorton claimed.

91. Consideration of HMAS Melbourne's ship log for April 1959 showed that for the period 8 to 14 April 1959, shore patrols returned on board at about 0130-0230 each morning except for the morning of 12 April 1959. Mr Gorton's charge sheet lists as witnesses Lieutenant J G McDermott who has no recollection of the case and a Singapore Naval Patrol Report, dated 12 April 1999, which was probably destroyed after Mr Gorton was posted out of HMAS Melbourne. The date of the report indicated that the Royal Naval Shore Patrol Authorities were aware of the case on the day it occurred, 12 April 1959. On the particular night, there may have been some delay because of the large numbers of sailors ashore but there should not have been any difficulty in establishing that Mr Gorton was an Australian sailor. HMAS Melbourne probably heard on 12 April 1959 that Mr Gorton had been picked up by shore patrol and if not, they almost certainly knew on 13 April 1959. Mr Gorton should have been returned to the ship on 12 April 1959 but if resources were stretched his return might have been delayed until 13 April 1959.

92. Commodore Mulcare reported that in 1959, the trip from the city of Singapore on the south side of the island to the Singapore Naval Base on the northern side took approximately 50 minutes. Commodore Mulcare noted that Mr Gorton in an undated letter to the officer in charge of records, Ministry of Defence, stated that he was placed in protective custody on the mainland perhaps some 40-60 minutes out of Singapore. Commodore Mulcare opined that Mr Gorton may have been detained at Nee Soon Barracks after he was apprehended in the early hours of 12 April 1959. It is unlikely, Commodore Mulcare opined, that Mr Gorton was detained at an army camp on the mainland of Malaya. Commodore Mulcare noted the details of short leave granted to HMAS Melbourne sailors is not known, but it would have expired, he opined, by 0730 on Monday, 13 April. Mr Gorton was not charged with being absent without leave but if he had been in the custody of service authorities, he would not have been charged with an absence.

93. In attempting to establish when Mr Gorton returned on board HMAS Melbourne, Commodore Mulcare examined the ship's log and also with the Defence Pay Records to ascertain if there was a reported absence on sailing on 14 April 1959. There is no such record although it was not mandatory to record this information, therefore, Commodore Mulcare opined that no conclusions can be drawn from the fact that his pay account was unmarked.

94. Commodore Mulcare concluded that Mr Gorton was apprehended in the early hours of Sunday, 12 April 1959 and then appeared before the Commander of HMAS Melbourne on Thursday, 16 April 1959 when he was punished with five days extra work and drill and fined one days pay. There are a number of possible explanations for the delay in coming before the Commander. The delay between 12 April and 16 April could indicate that Mr Gorton was detained somewhere on shore until HMAS Melbourne returned to Singapore on 15 April, 1959, Commodore Mulcare opined. Equally, it could indicate that Mr Gorton was returned on board on 12 or 13 April, was seen by the officer of the watch on 13 April or 14 April but was not seen by the Commander until the delayed Singapore Patrol Report was received on board when the ship returned to harbour on 15 April 1959. Commodore Mulcare did not think it likely that Mr Gorton was held in custody on shore. If he was returned to the ship on 13 April 1959, this might explain why Mr Gorton believes he was left behind. Commodore Mulcare acknowledged that there is no hard evidence to indicate a particular explanation. There is no record of any medical treatment between 12 -16 April 1959.

EVIDENCE OF MS R HARPER, COUNSELLOR

95. Ms Harper, Counsellor with the Vietnam Veterans Counselling Service provided a report to Dr Macdonald dated 8 July 1998 (T11, p67). Ms Harper administered the "Clinician Administered PTSD Scale" which resulted in an indication of the presence of post traumatic stress disorder. The traumatic incident required for this diagnosis related to HMAS Melbourne being docked in Singapore and Mr Gorton, drinking on shore, then changing uniforms with a US sailor as a lark. Ms Harper noted that Mr Gorton was picked up by US military and was then beaten because he told them he was "John Gorton", a name also associated with the then Australian Minister for the Navy. Ms Harper noted that Mr Gorton was nearly dead after this assault. He was then handed by the Americans over to the British Military who in turned questioned him at their headquarters. Mr Gorton reported that he was again beaten and detained in gaol when his ship sailed. Mr Gorton was finally saved when a crew member of HMAS Melbourne made enquiries and eventually found him. Ms Harper opined that all of the criteria for the diagnosis of post traumatic stress disorder are met. Going through the criteria A, B, C, and D, he had suffered a trauma which had threatened his life and engendered a reaction of helplessness and horror. He had re-experiencing trauma, daily intrusive distressing recollections, flashbacks to the gaol cell and he hurts around his stomach and eyes. Mr Gorton experienced distressing dreams of the event weekly and awakes screaming. He has persistent avoidance of stimuli associated with the trauma, avoidant behaviour of other veterans or anything to do with the war and has a pattern of heavy drinking. Furthermore, Ms Harper reported that Mr Gorton has a distinct loss of interest in activities, a feeling of estrangement from others, preferring to be alone a lot of the time and a problem with loving relationships. The symptoms of increased arousal were not present before the trauma. Mr Gorton has some sleep onset problems, irritability, anger outbursts, moderate loss of concentration, moderate hypervigilence and a noticeable startle response. Mr Gorton's inability to work at the time of reporting had, in Ms Harper's opinion, worsened his post traumatic stress disorder.

EVIDENCE OF MR J A MITCHELL

96. Mr Mitchell provided an undated statutory declaration (T11, p74). Mr Mitchell knew Mr Gorton from Ballina and served in HMAS Melbourne during the time relevant to Mr Gorton's application for review. Mr Mitchell remembered Mr Gorton being left ashore in Singapore when HMAS Melbourne sailed in March / April 1959 for a sea exercise. Mr Mitchell recorded that HMAS Melbourne was at sea for approximately one or two weeks and then sailed back to Singapore whereupon Mr Gorton rejoined the ship.

97. Mr Gorton had told him that while ashore, he had changed his uniform with an American sailor, was later picked up by an American shore patrol which interrogated him and physically abused him when he used the name of John Gorton, who was at that time the Minister for the Royal Australian Navy. Mr Gorton was then handed by the American patrol to the English Red Caps and was again physically abused. Mr Gorton told Mr Mitchell that he was detained on the mainland by the Red Caps until HMAS Melbourne arrived back in port.

EVIDENCE OF MR G E IVES

98. Mr Ives provided a Statutory Declaration dated 4 May 1998 (T11, p74). Mr Ives noted that he has known Mr Gorton since 1953 and had himself served 20 years in the Navy in various ships and establishments. Mr Ives noted that it was common knowledge in the ships which were present in the Far East Station that Mr Gorton was detained in Malaya by the British Military Police while his ship HMAS Melbourne participated in exercises and then returned to port.

EVIDENCE OF MR R P MOSS

99. Mr Moss provided a Statutory Declaration dated 4 May 1998 (T11, p75). Mr Moss served in HMAS Melbourne in 1959. Mr Moss noted that he vividly remembered being on shore leave between March and April 1959 when he, another friend and Mr Gorton exchanged uniforms with some American sailors. He noted that American sailor's leave expired at approximately midnight, whereas Australian sailor's leave expired at 07.30. During the course of events they dodged various naval police patrols as they were fully dressed in US uniforms. Mr Gorton was separated from Mr Moss and his other friend. Mr Moss got back to HMAS Melbourne without incident. Mr Gorton was subsequently picked up by the American Naval Police and handed over to the British Naval Police. As far as Mr Moss remembered, Mr Gorton was in custody for a number of days before he was escorted back to HMAS Melbourne.

EVIDENCE OF MR G E OFFORD

100. Mr Offord made a Statutory Declaration dated 29 November 2000 stating that he had met Mr Gorton in February 1957 on entry to the Navy (T20, p114). Mr Offord was not serving with Mr Gorton in March-April 1959, but "was well aware of what had happened to him."

EVIDENCE OF MR W E PAXMAN

101. Mr Paxman provided a written statement dated 30 November 2000, noting that in 1959 he did a tour of duty in Malaya and Singapore serving in HMAS Vendetta (T20, p116). During this time, he recalled a story concerning an Australian sailor from HMAS Melbourne, John Gorton, having been in trouble with the US and British shore patrols and that he had been "knocked around quite a bit."

EVIDENCE OF MR N C HEYHORN

102. Mr Heyhorn provided a Statutory Declaration dated 30 November 2000 (T20, p117-118). Mr Heyhorn noted that he had served in HMAS Melbourne in the Far East in 1959. Mr Heyhorn was aware at that time that Mr Gorton had not been accounted for when the ship sailed and was "A.W.O.L.". Some days later, Mr Gorton returned to HMAS Melbourne and "from his appearance he had sustained injuries & bruising during his absence from the ship ". Mr Heyhorn stated that he later became aware how the injuries and bruising occurred.

EVIDENCE OF MR K M WILKIE

103. Mr Wilkie provided a Statutory Declaration dated 1 December 2000 (T20, p119). Mr Wilkie served with Mr Gorton during the March/April 1959 exercises in the Far East. He noted that Mr Gorton and a few others exchanged uniforms with some American sailors and it was thought to be a great joke. Mr Wilkie reported that the ship sailed without Mr Gorton to undertake exercises. When HMAS Melbourne returned to port, Mr Gorton was brought on board, "looking a bit worse for wear, and it was obvious from the visible bruising that he'd been knocked about by somebody". Mr Wilkie was led to believe that the American shore patrol and the Red Caps did not take kindly to Mr Gorton stating over and over that his name was John Gorton, coincidently, the name of the Australian Minister for the Navy at that time.

SUBMISSIONS

104. Mr Price submitted that in relation to the sebaceous cyst conditions, there is no Statement of Principles. Accordingly, the principles laid down in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 lay down the principles to be applied when there are no Statement of Principles. Mr Prince submitted that the hypothesis as supported by Dr Macdonald and Dr Townend is that trauma caused the cysts. Mr Prince submitted that nothing was put forward to dispute this reasonable hypothesis beyond reasonable doubt. If it is accepted that the trauma occurred with Mr Gorton having been beaten by the US and British personnel, then there are no facts to disprove the reasonable hypothesis and hence the trauma occasioned on Mr Gorton during this beating caused the cysts and therefore they should be considered to be a war-caused condition.

105. In relation to the issue of the psychiatric condition, as a result of the concurrent medical evidence, Mr Price noted that now, Dr Delaforce, on reflection, had decided that there was a great difficulty with his accepting Mr Gorton's credibility. Accordingly, because Dr Delaforce could not accept the factual basis of the claimed causal connection between trauma and a psychiatric condition, he could not provide a diagnosis. This effectively meant that there was only one diagnosis, as proposed by Dr Dinnen, of post traumatic stress disorder. Mr Price submitted that the issue therefore comes down to credit and if the Tribunal accepted that Mr Gorton was not a liar nor a malingerer, then there was a trauma back in 1959. Mr Price's submission is that a trauma occasioned during 1959 when Mr Gorton was serving in the Navy on operational service, affected Mr Gorton's life and caused a mental illness.

106. In relation to the issue of alcohol abuse, Mr Price submitted that it was common ground that this condition was present. Dr Dinnen opined that alcohol abuse was a bi-product of post traumatic stress disorder.

107. On the issue of Mr Gorton's credit, Mr Price submitted that Mr Gorton provided his evidence and the Tribunal had the opportunity of assessing his credit and demeanour during that process. Mr Gorton has provided similar evidence to Dr Hayes, Dr Dinnen and Dr Delaforce. There has been consistency in the evidence provided to the Board. Mr Price submitted that there is a ring of truth or a golden thread of credibility running through Mr Gorton's evidence and it is a matter for the Tribunal whether or not the facts presented by Mr Gorton are believed or not.

108. In deciding the issue of the diagnosis, Mr Price submitted that the standard of proof to be applied is that of deciding matters on the balance of probabilities to the Tribunal's reasonable satisfaction. Mr Price further submitted that the Tribunal must, of necessity, when assessing the diagnostic criteria, make some assessment of fact.

109. Specifically dealing with the medical evidence, Mr Price submitted that during the course of Dr Delaforce's evidence he had changed his position several times. To Mr Price's understanding, Dr Delaforce seemed to agree with different propositions presented to him by different people. It seemed to Mr Price that Dr Delaforce's final opinion was that he could not diagnose mental illness when he took all of the evidence into consideration as he could not believe Mr Gorton's story.

110. Mr Price asked the Tribunal to consider that Mr Gorton was giving evidence about matters which occurred some 40 years ago. There are inconsistencies in Mr Gorton's evidence, but this is to be expected in those circumstances. Mr Price submitted that we know that Mr Gorton went ashore on leave. We know that he was in Singapore and on active service. It is also known that he had dressed in an American naval uniform. It is reasonable to assume, Mr Price submitted, that Mr Gorton was beaten and missed the ship. It is known from the available evidence, that Mr Gorton was punished. It is only the word of the Applicant as to how severe this was or how severe he perceived the beating to be. Dr Dinnen had opined that the response Mr Gorton had to the severity of the beating is a subjective matter. Mr Gorton may well have sustained a beating that did not break any bones, but this should not detract from Mr Gorton's perception that he was going to die or be severely injured. That is a common feeling and perception, as Dr Dinnen noted, when people are exposed to assault. It could not be proved either that this assault did happen or it did not happen or that Mr Gorton was beaten on two occasions, one in the street and one in the prison cell. The question is therefore not that the beating did not occur, but as to severity.

111. Mr Price contended that it cannot be disputed that Mr Gorton was on leave, that he was in an American naval uniform and that he was punished. There is nothing in the material before the Tribunal to disprove beyond reasonable doubt that he did not sustain a beating. This was the causal link between service and post traumatic stress disorder and alcohol abuse was merely a symptom of that post traumatic stress disorder. If the Tribunal concluded that Mr Gorton has a war-caused post traumatic stress disorder, then Mr Price submitted that the issue of assessment of the correct rate of Disability Pension should be remitted to the Respondent.

112. Mr Marsh submitted that the starting point in relation to which Statement of Principles is applicable has been outlined in the Full Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321. The single judge Federal Court decision in Gorton v Repatriation Commission (2001) 63 ALD 723 and in Repatriation Commission v Williams [2001] FCA 1195 are authority for the principle that the most recent Statement of Principles is the starting point and it is only after addressing that Statement of Principles and finding that the Applicant would be unsuccessful on that, that one would turn to the Statement of Principles in force at the time of the primary decision. The Respondent is happy for the Applicant to rely on the earlier Statement of Principles.

113. The next step in the process in this matter is to determine on the balance of probabilities what is the correct diagnosis. This position is now well accepted and applies the principles which were outlined in two Federal Court decisions Benjamin v Repatriation Commission (2001) 64 ALD 411 and Budworth v Repatriation Commission (2001) 116 FCR 200 and in the case of Meehan v Repatriation Commission (2001) 64 ALD 366.

114. The difficulty with the diagnosis of post traumatic stress disorder is that it is the only condition where the existence of an essential fact, that is the trauma, is tied up with the diagnostic criteria. If the Tribunal or decision-maker has to be reasonably satisfied as to the diagnosis, then it must also have to be reasonably satisfied as to the presence of the trauma that is relied on for that condition to be diagnosed. Mr Marsh strongly submitted that on a reasonable satisfaction test, there is simply not enough evidence, combined with Mr Gorton's poor credibility, to support the existence of the trauma. Mr Marsh contended that the credit issue cannot be avoided at the diagnostic stage, because credit is so inextricably linked to the diagnostic issue and that credit therefore must be determined on, Mr Marsh submitted, the balance of probabilities. Mr Marsh submitted that Dr Delaforce has great concerns about Mr Gorton's credit having seen the clinical notes from Centrelink and the report from Mr Phillpot, Psychologist. In this regard, Mr Marsh submitted that Mr Gorton wanted to have anxiety state accepted for the purposes of worker's compensation and his Disability Support Pension through Centrelink. On the other hand, in terms of the Repatriation Commission, Mr Gorton wanted his claim for post traumatic stress disorder accepted using a totally different set of facts to those given for the anxiety state. Mr Marsh believed that Dr Dinnen agreed that the compensation forum should not be the determinant of the diagnosis. It should be undertaken in an objective and independent process. An expert, be that a clinical psychologist or a psychiatrist, should be able to look at the history given by a patient and form a view as to the diagnosis in the absence of any compensation forum. Mr Marsh submitted that in Mr Gorton's case there had been provided two different histories. The claim for benefits through the Department of Veterans' Affairs had commenced as a claim for anxiety state and the diagnosis initially for post traumatic stress disorder seems to have been made by Dr Macdonald.

115. Mr Marsh submitted that the Tribunal should take into account in the context of Mr Gorton's belief that he was beaten on service, his belief in an alleged cover up and the lack of honesty by the services and what he perceives to be broken promises in relation to a housing loan. Except for the controversial incident, none of the factors Mr Gorton mentioned related to service-related factors in relation to the Statement of Principles. That through into considerable doubt, Mr Marsh submitted, the occurrence of the assault. Mr Marsh submitted that Dr Dinnen could see problems with Mr Gorton's evidence in relation to the severity of the beating, having described it as being repeatedly beaten with batons, punched, kicked repeatedly in the face and head to the point where he was near death, as he had related to Dr Hayes and to the Counsellor, Ms Harper. Mr Marsh submitted that it beggars belief that the response by the Navy of giving him extra work as punishment would have occurred in the context in the extent of beating that Mr Gorton claims.

116. Mr Marsh noted that Dr Dinnen accepts the diagnosis of post traumatic stress disorder is predicated on the existence of the traumatic event. Absent the beating, or a beating that was nowhere near as severe, then Mr Gorton would not satisfy the diagnostic criteria in terms of the traumatic event on the balance of probabilities. Mr Marsh submitted that it is certainly open for the Tribunal to find at the very least that the beating was nowhere near as severe as Mr Gorton claims and it was a minor beating, not sufficient for the traumatic event part of the diagnosis, because the trauma is just not there.

117. Returning to Dr Delaforce's evidence, Mr Marsh submitted that he had concluded that if one accepted that the traumatic event occurred, he would have no difficulty with the diagnosis of post traumatic stress disorder. However, the diagnosis must be predicated on acceptance of the account as to the severity and occurrence of that event or stressor. If one were to put aside the 1959 incident, and look at more recent psychosocial stressors, such as Mr Gorton's knee injury, the loss of employment and financial loss, these were significant and sufficient to allow a diagnosis of an anxiety disorder.

118. If the Tribunal reached the stage of accepting a diagnosis of Mr Gorton's psychiatric disorder, which Mr Gorton has contended is post traumatic stress disorder, then at that stage it has to be determined whether or not a reasonable hypothesis has been raised linking that condition to service. It is then that the Tribunal would consider the four steps outlined in Repatriation Commission v Deledio (1998) 83 FCR 82. Mr Marsh contended however, that in this matter the Tribunal could not reach the reasonable hypothesis stage because there are so many problems with the diagnosis. Step three of the Deledio process, could not be met, Mr Marsh submitted because the hypothesis is not reasonable, related directly to the fact that there is doubt surrounding the existence of the trauma. Mr Marsh submitted that there is somewhat of a legal fiction surrounding step three of the Deledio process as outlined in Meehan v Repatriation Commission (supra). Mr Marsh submitted that that case and indeed the case before the Tribunal, highlight the legal gymnastics that decision-makers must go through in terms of determining a reasonable hypothesis. Mr Marsh submitted that most decision-makers in the jurisdiction have to grapple with an assessment in making a decision as to reasonableness and that, subconsciously at least, this must involve considerations of fact, although the courts have been painstakingly careful in emphasising the principle that one must not make a finding of fact. In the process of assessing the reasonableness, Mr Marsh submitted, one must inevitably consider facts and this was the issue confronting Senior Member Allen in Meehan v Repatriation Commission (supra). Furthermore, one must be very careful not to assume the existence of every fact necessary to make a hypothesis reasonable.

119. Mr Marsh submitted that certainly in Mr Gorton's case, it could not and should not be assumed as a fact that there was a beating because so much of the evidence casts doubt upon it. Mr Marsh referred the Tribunal to the Federal Court decisions of Repatriation Commission v Bey (1997) 79 FCR 364 which followed with approval East v Repatriation Commission (1987) 16 FCR 517. These cases strongly point to the requirement to look at the whole story when assessing reasonableness, that is considering the whole of the material.. These matters were further discussed in Bull v Repatriation Commission (2001) 66 ALD 271 which again dealt with whole of the material before a decision-maker and issues determining a question of fact.

120. The Tribunal was referred to Re Repatriation Commission and Freeman (2000) 61 ALD 259 in which the proposition was dealt with that the Tribunal's task is an administrative one, rather than clinical when approaching statutory tests laid down by Statements of Principles. The Tribunal must make an administrative decision based on clear statutory criteria. Furthermore, in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, it is noted that diagnostic criteria laid down in Statements of Principles have to be strictly adhered to. The Tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of a Statement of Principles.

121. Mr Marsh submitted that the only common ground was alcohol abuse. Dr Dinnen had stated that this diagnosis would be appropriate and he saw it as a sequelae of post traumatic stress disorder, a proposition with which Dr Delaforce also agreed. If such a diagnosis was made however, Mr Marsh submitted that it could not be related to service given Mr Gorton's account that his drinking was maintained at a fairly constant rate throughout his navy service. There is no relationship between drinking and eligible service as there has been a long standing pattern of heavy drinking. The fact that he was drunk on the night of the particular incident claimed as a trauma indicates the possibility of this being a long standing condition.

FINDINGS

122. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law. There are a number of issues to be determined in this matter. Does Mr Gorton have a mental disorder and if so, what is the diagnosis? If there is a diagnosable mental condition, is that then war-caused? In terms of the skin conditions, it must be determined whether or not the correct diagnosis is sebaceous cysts of the scalp, abdomen and back and is the correctly diagnosed skin condition war-caused.

123. From the medical evidence, both oral and documentary, the Tribunal is reasonably satisfied that Mr Gorton has a mental condition. In the concurrent evidence provided to the Tribunal both Dr Delaforce and Dr Dinnen agreed that without the 1959 incident in Singapore, there was a diagnosable mental condition. If that incident was factored into a consideration of diagnosis, then Dr Delaforce concluded that there was no diagnosis possible because of the issue he had with Mr Gorton's credit.

124. It is settled in the case law, that the determination of a condition must be made on the reasonable satisfaction standard of proof as outlined in the Federal Court cases of Budworth v Repatriation Commission (supra) and Benjamin v Repatriation Commission (supra). Dr Delaforce in his report initially considered that the correct diagnosis was adjustment disorder but in oral evidence, stated that he could not, on the evidence, advance a diagnosis at all because he was not satisfied that the evidence was credible, noting doubt as to whether on the other objective material, the 1959 incident occurred or if it had, that there was no evidence of an assault or severe assault. Further inconsistencies for Dr Delaforce include Mr Gorton not being aware of the loss of a watch or a wallet and not telling his wife and friends of his experiences, at least for some time. Dr Dinnen and Dr Hayes, the treating Psychiatrist, advance a diagnosis of post traumatic stress disorder with Dr Dinnen including as part of that condition, alcohol abuse. Dr Delaforce also agreed that Mr Gorton suffered from alcohol abuse or dependence but not causally related to service.

125. The Tribunal considers it must establish whether Mr Gorton has a diagnosable psychiatric condition and uses as a starting point the possible diagnosis of post traumatic stress disorder. Applying Repatriation Commission v Williams (supra) and the Full Federal Court decision in Repatriation Commission v Gorton (supra), the Tribunal finds that, having considered the current Statement of Principles concerning Post Traumatic Stress Disorder, that the applicable Statement of Principles is Instrument Number 15 of 1994 as amended by Instrument Number 225 of 1995 concerning Post Traumatic Stress Disorder.

126. For the purposes of the Statement of Principles, the diagnosis for post traumatic stress disorder is derived from the application of DSM-IV. Unique in establishing the diagnosis for post traumatic stress disorder, is that it requires that a person must suffer a traumatic event as defined. The diagnosis must be determined to the reasonable satisfaction standard of proof and requires that there be a factual determination for diagnostic purposes, to establish whether or not a traumatic event as detailed in diagnostic criteria 4(a) occurred. If a diagnosis of post traumatic stress disorder is established to the Tribunal's reasonable satisfaction, then in the process of determining causation, that is, whether there is a causal link between the diagnosed condition and war service, then the reasonable hypothesis standard of proof is applied. That process requires the consideration of one or more factors contained in paragraph 5 of the relevant Statement of Principles. The Tribunal then traverses the well worn ground of determining firstly whether or not a reasonable hypothesis is raised in line with one or more of the factors and then determining whether the facts required to support this raised reasonable hypothesis are sufficient to be proved beyond reasonable doubt. Of relevance in this process are the four steps as outlined in Repatriation Commission v Deledio (supra). At step four of the Deledio process, the Tribunal must determine if the raised facts fit the hypothesis to the Tribunal's satisfaction beyond reasonable doubt.

127. Returning to diagnosis, the diagnostic criteria for post traumatic stress disorder are set out within clause 4(a), (b), (c), (d), (e) and (f). Criterion 4(a) states:

"(a) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness or horror; and

...."

128. Mr Gorton claims that he experienced a traumatic event on 12 April 1959 when, having exchanged uniforms with an American sailor and having consumed alcohol, he later asked members of the American Naval Police for a ride back to HMAS Melbourne. Mr Gorton claimed that what followed was a severe beating, which then resulted in him being handed over to the British Red Caps and he was incarcerated, beaten again and missed the sailing of his ship. He was eventually returned to HMAS Melbourne when Seaman Alf Cox located him and took him back on board. On Mr Gorton's evidence, he was charged and given extra duties. Furthermore, Mr Gorton claimed to have been seriously injured, he thought he was going to die and he described having scabs on his head and torso.

129. The documentary material indicates that Mr Gorton was improperly dressed and was drunk on shore. The charges were proven and the date of punishment occurred on 16 April 1959 (T17, p94) some four days after the actual event. There is no record of Mr Gorton being missing from the ship or absent without leave. There is a Statutory Declaration from Mr W E Paxman (T20, p116) that, when serving in HMAS Vendetta in Singapore, he heard a story at that time of an Australian sailor, John Gorton, being in trouble with the US and British Shore Patrol and being kicked around. Mr N C Heyhorn noted on 30 November 2000, that when he was serving in HMAS Melbourne in 1959, that Mr Gorton had not been accounted for when the ship sailed and then some days later he was returned to the ship. Mr Heyhorn noted that Mr Gorton had injuries and bruising (T20, p117). A further Statutory Declaration from Mr K M Wilkie (T20, p119) who served with Mr Gorton in HMAS Melbourne, noted that he also had been involved in the exchange of uniforms and it was thought to be a great joke. Mr Wilkie and Mr Gorton were separated and went their separate ways. Mr Wilkie further noted that the ship sailed without Mr Gorton and when Mr Gorton returned to the ship, he was worse for wear with bruising apparent. The punishment for Mr Gorton's behaviour was five days loss of pay and extra duties.

130. There is some inconsistency noted in terms of the severity of injuries Mr Gorton reported. Mr Gorton was not medically treated, which is unusual in terms of the severity of his reported injuries. It would also be unusual for someone who was so severely injured to be given a punishment of extra duties so soon after he sustained such injuries. The Statutory Declarations do indicate some level of injury though not to the extent consistent with the severity reported by Mr Gorton. There is however a thread of truth in that there was the change of uniforms and men serving with him saw bruising and also noted that he did not return to HMAS Melbourne when it left to undertake exercises for a short period. Against this, there is no record of Mr Gorton attending sick bay and no record of him being absent without leave. There is an unexplained gap between the date of the offence on 12 April 1959 and the date of the hearing on 16 April 1959, at which Mr Gorton was charged. Commodore Mulcare has attempted to provide possible reasons for the delay however, as he concluded, none are conclusive. Against this, the Tribunal has the evidence of the veteran in addition to recollections of those who were either serving with Mr Gorton in HMAS Melbourne or were in Singapore at the same time.

131. In this difficult factual jigsaw, the Tribunal must look at the application of section 119 of the Act. In Dunlop v Repatriation Commission [2002] FCA 1400, Ryan J noted that subsection 119(1)(h) of the Act implies that the passage of time may adversely effect the comprehensiveness or availability of records. The Tribunal also notes, as did Ryan J in Dunlop v Repatriation Commission (supra), that the Full Court of the Federal Court in Repatriation Commission v Bey (supra) at 373, when dealing with issues where there was some difficulty with the records, concluded:

"...The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119 (1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law:... Paragraph (h) of s 119(1) is a provision of the same character as par (g):...Thus, like in par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions..."

132. In this matter, there are gaps in the material. There is the evidence of Mr Gorton, Statutory Declarations from servicemen either serving with Mr Gorton or at the same time as Mr Gorton but in another ship and some objective records that Mr Gorton did wear an American sailor's uniform, that he was drunk and he was charged. There is a gap between the date of the incident on the 12 April 1959 and the charge on 16 April 1959. There are no documents to explain this gap. Mr Gorton says he was detained on shore while HMAS Melbourne sailed. There are possible explanations for the gap as explained by Commodore Mulcare, but the difficulty is that there is some evidence, apart from Mr Gorton's, that he did not make the ship on time and that he was treated harshly on the mainland. Mr Gorton's evidence was that he was beaten badly, yet there is other evidence that he did not report to sick bay and that he was also given extra work - an extremely unlikely punishment if he was beaten within a inch of his life. Despite these difficulties with the material, there has been consistency in Mr Gorton's evidence about the incident. Even if he were not so severely beaten as he perceived, and the Tribunal does consider that this is the case, the Tribunal finds that Mr Gorton was physically assaulted but not to the extent that he nearly died. Objectively, Mr Gorton faced a threat to his physical integrity and subjectively he was intensely afraid. Statutory Declarations support this, noting his bruising and also Mr Gorton's absence. That this is not recorded is not out of the realms of possibility.

133. In this jurisdiction, it is not unusual not to report to sick bay nor is it unusual not to have certain things recorded or information available, having been lost with the passage of time. The Tribunal accepts Mr Gorton's evidence that he did not wish to cause any further problems, he was happy just to be back aboard his ship and happy to accept iodine as treatment for his injuries. The Tribunal is on balance, reasonably satisfied on all of the material, that Mr Gorton was, after donning an American sailor's uniform, assaulted by the US Navy and detained by the British Red Caps and further treated harshly by them. Commodore Mulcare noted that the Red Caps were known for their tough approach. The Tribunal notes Dr Delaforce's concern about Mr Gorton's credibility and he is quite correct in his approach as an expert, to identify the gaps and point to issues concerning Mr Gorton's credibility. Such concerns expressed by experts such as Dr Delaforce ensure that decision-makers carefully and comprehensively examine those concerns in combination with other material to reach the correct and preferable decision. The Tribunal notes that Dr Dinnen also acknowledged some gaps in the evidence, but this did not trouble him on the basis that there was a ring of truth. Certainly Dr Hayes, the treating Psychiatrist appears to believe Mr Gorton. The Tribunal has to weigh up all of the evidence and the Tribunal had the benefit of not only hearing Mr Gorton's evidence and observing his demeanor, but also the documentary evidence.

134. On all of the material to the Tribunal, it is reasonably satisfied and so finds that in terms of diagnostic criteria 4(a)(i) and (ii), Mr Gorton was exposed to a traumatic event which involved actual or threatened serious injury to his physical integrity. Mr Gorton response to this involved intense fear and he thought he was going to die.

135. Turning to the remaining diagnostic criteria, in terms of 4(b) and the requirement that the traumatic event is persistently re-experienced, Mr Gorton has nightmares and flashbacks to that event, thus meeting the criteria 4(b)(ii) and (iii). Mr Gorton has avoided RSL events, is isolated, has poor communication with his family and fights with his wife (4(c)(ii), (iii), (iv) and (v)). Furthermore, Mr Gorton has outbursts of anger, and difficulty concentrating (4(d)(ii) and (iii)) and the disturbance has occurred for more than one month (4(e)). The condition has impacted on Mr Gorton's occupational and family relationships (4(f)). Hence the Tribunal finds that the correct diagnosis for Mr Gorton's mental health condition is post traumatic stress disorder as supported by Dr Dinnen and Dr Hayes. Noting Dr Dinnen's evidence, the Tribunal finds the condition was latent before 1998 but was clinically diagnosed by Dr Hayes in 1998. Dr Delaforce noted that if the event had occurred or was found to have occurred, then he would not dispute a diagnosis of post traumatic stress disorder. The Tribunal further finds that part of the symptom complex of post traumatic stress disorder is alcohol abuse. While it is possible that there were elements of this present prior to the onset of post traumatic stress disorder, the onset of this war-caused condition contributed to the worsening of alcohol abuse.

136. The Tribunal must next consider the causation of post traumatic stress disorder and whether or not a reasonable hypothesis is raised and if so, whether this is supported by the facts beyond reasonable doubt. The general hypothesis has been raised that the beating associated with contact with American Navy and British Army personnel caused Mr Gorton to suffer post traumatic stress disorder. The general hypothesis in itself is not fanciful nor beyond the realms of possibility. The Tribunal must, given there is a Statement of Principles in relation to post traumatic stress disorder, ascertain whether one or more of the factors within the Statement of Principles may be relevant and a reasonable hypothesis raised. Factor 1(a) requires that the veteran must experience a stressor prior to the clinical onset of post traumatic stress disorder. Experiencing a stressor means the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's or other people's physical integrity; and the person's response involved intense fear, helplessness or horror. Certainly on the material available to the Tribunal and as has previously been detailed to the Tribunal's reasonable satisfaction, the Tribunal accepted that Mr Gorton was involved in a situation where he was threatened with an event which involved actual threat of serious injury or to his physical integrity. On the material, there are circumstances in which Mr Gorton exchanged uniforms with an American sailor, he has provided evidence that he was beaten, incarcerated and returned late to his ship. The material points to this event occurring, though some gaps have been identified within the material. Mr Gorton reports feeling extremely afraid and fearing for his life. The Tribunal finds that pursuant to subsection 120(3) of the Act, that as the material points to the event and his response to it as described by Mr Gorton, though possibly less severe, but none the less threatening of actual physical harm, the Tribunal finds that a reasonable hypothesis has been raised.

137. Having found that a reasonable hypothesis has been raised pursuant to subsection 120(3) of the Act, the Tribunal must next consider pursuant to subsection 120(1) of the Act whether there are sufficient facts present to support the raised reasonable hypothesis. All those involved in this matter would seem to either overtly or subtly indicate that there are gaps and inconsistencies in the material available to decision-makers. The Tribunal acknowledges that this is correct. The inconsistencies relate to matters such as the level of injury reported by Mr Gorton as opposed to the lack of reporting or recording of care by the sick bay attendants or doctor. Furthermore, there is a gap in the documentary evidence and attempts to explain why there was no recording or charging, until four days after the actual event which occurred in Singapore, are inadequate. Dr Delaforce's concerns about Mr Gorton being unaware of where his watch and wallet were, in the context of his being extremely frightened, are not sufficient in light of all the other documentary and oral evidence, to displace Mr Gorton's assertions beyond the reasonable doubt of the Tribunal.

138. The Tribunal considers that the material contained within the Statutory Declarations, though not all statements refer to identical service or contact with Mr Gorton, indicate direct knowledge of the events reported by Mr Gorton. Dr Delaforce noted in his earlier evidence that the level of distress exhibited by Mr Gorton lends some air of credibility to the events he describes. Dr Delaforce was however unable to align this with the level of inconsistency or incompleteness he identified in the documentary and other evidence. The Tribunal must however make its decision based on all of the evidence available to it. Accordingly, while there are some doubts, as often is the case, the Tribunal considers that the raised reasonable hypothesis is not disproved beyond reasonable doubt as those facts having been raised are supportive of the reasonable hypothesis. Accordingly, the Tribunal finds that pursuant to subsection 120(1) of the Act, the Tribunal can find no reason to displace the raised reasonable hypothesis and accordingly determines that the condition of post traumatic stress disorder is war-caused. The Tribunal finds that there is no separate condition of alcohol abuse and that this is a symptom or part of the post traumatic stress disorder.

139. Post traumatic stress disorder is found to be war-caused and Disability Pension should be paid from and including 20 February 1998. In relation to the assessment of this condition, the matter should be remitted to the Repatriation Commission to assess up to date.

140. In relation to the claimed condition of sebaceous cysts of the abdomen, back and head, in line with the opinions of Dr Lobel, Occupational Dermatologist, and Dr Macdonald and Dr Townend, the Tribunal is reasonably satisfied that the correct diagnosis is sebaceous cysts of the scalp and fibrolipomata of the abdomen and back. The diagnosis of the claimed condition is therefore varied to reflect the correct diagnosis of sebaceous cysts on the scalp and fibrolipomata on the abdomen and back.

141. As there is no Statement of Principles in this matter, the Tribunal applies the reasoning laid out in two High Court decisions of Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra). The hypothesis put is that trauma caused by Mr Gorton's beating caused the development of the lumps on his scalp, abdomen and back. The material points to this hypothesis, particularly when noting the opinions of Dr Macdonald and the treating surgeon, Dr Townend. Thus, pursuant to subsection 120(3) of the Act, the Tribunal finds that a reasonable hypothesis has been raised on consideration of the material.

142. The Tribunal must next determine whether or not there are facts which support the raised reasonable hypothesis. Dr Townend in his report noted that it was possible that the cysts on Mr Gorton's back could conceivably be an implantation dermoid which can arise from trauma where elements of the skin get buried beneath the skin's surface and start to form lumps which grow in size. The lumps on the trunk are most likely fibrolipomata. Dr Townend noted that certainly trauma can result in areas of fibrous tissues under the skin, but without removing it, he was not able to say, apart from knowing that simple lipomas are very common and probably not related to trauma. Dr Lobel noted that Dr Macdonald carried out a biopsy of one of the two scalp cysts and the biopsy report confirmed a clinical diagnosis of sebaceous cysts. Implantation dermoids have a specific and recognisable histopathology different to that of a sebaceous cyst. Dr Townend subsequently removed both scalp cysts and while there was no pathology report, in a letter from Dr Townend to Dr Macdonald dated 16 February 1999, Dr Townend stated that the two sebaceous cysts were exercised. Dr Lobel assumed from this report that the histopathology of the exercised lesion was reported as sebaceous cysts and not implantation dermoids. An ultrasound taken of the abdominal wall and back, dated 20 November 1998, indicated that these lesions were "consistent with lipomata with a fibrous component".. The indications from the ultrasound were that these lumps were normal fibrolipomata. Fat necrosis due to trauma would leave scar tissue, not fibrolipomata. Therefore, on the evidence available to Dr Lobel, he could not relate the lumps on Mr Gorton's scalp, the sebaceous cysts, or the abdomen and back fibrolipomata to trauma.

143. The Tribunal considers that the objective evidence does indicate that on Mr Gorton's scalp, the cysts were sebaceous. This is confirmed by the biopsy and in Dr Townend's letter to Dr Macdonald. That type of cyst is not caused by trauma, the Tribunal accepts and so finds. Furthermore, in relation to the lumps on the abdomen and back, their characterisation of fibrolipomata would also indicate that they are not caused by trauma. Accordingly, pursuant to subsection 120(1) of the Act, the Tribunal cannot determine that a reasonable hypothesis has been met, as the facts necessary to support this are not proven beyond reasonable doubt. Thus the Tribunal finds that the diagnosed condition as varied, of sebaceous cysts of the scalp and fibrolipomata of the abdomen and back are not war-caused.

144. In all of the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides that:

(i) In relation to the condition of post traumatic stress disorder, the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Gorton's psychiatric condition is correctly diagnosed as post traumatic stress disorder and this condition is war-caused with effect from and including 20 February 1998.

(ii) The assessment of the appropriate rate of Disability Pension is remitted to the Respondent.

(iii) In relation to the decision under review concerning sebaceous cyst of the abdomen, back and head, the diagnosis is varied to sebaceous cyst of the scalp and fibrolipomata of the abdomen and back. The decision with the varied diagnosis is affirmed.

I certify that the 144 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member, Dr J D Campbell, Member and Rear Admiral A Horton. AO, Member

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

Associate

Dates of Hearing 22 November 2001

1 May 2002

Date of Decision 31 January 2003

Representative for the Applicant Mr D Price of Counsel

Solicitor for the Applicant R L Whyburn & Associates

Representative for the Respondent Mr J Marsh, Departmental Advocate