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Pink and Repatriation Commission [2010] AATA 46 (22 January 2010)

Last Updated: 27 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5525

VETERANS' APPEALS DIVISION
)

Re
DARRYL KEITH PINK

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member L Hastwell
Mr S J Ellis AM (Member)

Date 22 January 2010

Place Adelaide

Decision
The Tribunal affirms the decision under review.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that generalised anxiety disorder and alcohol dependence were war-caused – consideration of Statements of Principles – three individual stressors claimed – consideration of what amounts to a life threatening event – the Deledio principles considered – applicant an unreliable witness – decision under review affirmed

Veterans’ Entitlements Act 1986, ss 6C, 6D, 6E, 7(1), 9(1), 13(1), 120(1), 120(3), 120A(3)
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 6 ALD 271
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473
Repatriation Commission v Stoddart [2003] FCAFC 300
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 17 of 2008
Statement of Principles Instrument No 1 of 2009


REASONS FOR DECISION


22 January 2010
Senior Member L Hastwell
Mr S J Ellis AM (Member)

  1. Darryl Keith Pink served in the Royal Australian Navy (the Navy) from 11 July 1966 to 31 December 1973. During that period he had operational service from 22 February 1970 to 1 March 1970, from 22 February 1971 to 1 March 1971 and from 21 November 1972 to 26 November 1972.
  2. Mr Pink has the following accepted disabilities:
  1. Mr Pink has been in receipt of a veteran’s pension at 100 percent of the disability rate since 8 March 2007.
  2. On 29 August 2007, Mr Pink lodged an application for the conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse to be accepted as service related conditions (T3/16-28).
  3. On 7 December 2007, a delegate of the Repatriation Commission (the Commission) rejected Mr Pink’s claim that these particular conditions were related to his service within the meaning of the Veterans’ Entitlements Act 1986 (the VE Act) (T4/29-37).
  4. Mr Pink sought a review of the delegate’s decision from the Veterans’ Review Board (the VRB). On 28 October 2008 the VRB affirmed the decision insofar as it related to the conditions that are the subject of this review. Mr Pink has sought a review of the VRB decision to this Tribunal.
  5. The Commission does not dispute that Mr Pink has been diagnosed with the conditions of generalised anxiety disorder and alcohol abuse or alcohol dependence. The Commission contends that the conditions are not related to his service.
  6. It is common ground that if Mr Pink is successful in his application for review to this Tribunal, then the earliest date of effect of that decision will be 29 May 2007.

ISSUES FOR DETERMINATION BY THE TRIBUNAL

  1. The issues for determination by the Tribunal are whether any of the claimed conditions are war-caused as defined in the VE Act.
  2. It is not asserted by the applicant that the conditions are defence-caused.

LEGISLATIVE BACKGROUND

  1. Sections 6C, 6D and 6E of the VE Act refer to operational service since World War II and Schedule 2 of the VE Act sets out various operational areas.
  2. Section 7(1)(a) provides that a person who has rendered operational service is taken to have been rendering war service during that period.
  3. Section 9(1) of the VE Act provides for when an injury or disease is taken to be war-caused as follows:
“9 War-caused injuries or diseases
(1) Subject to this section and section 9A, 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;
...”

  1. Section 13(1) of the VE Act provides that where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to that person.
  2. As the applicant has performed operational service, as defined in s 6 of the VE Act and as it is asserted that the asserted conditions arose as a result of that operational service, then the determination of whether the conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act . Those sections are in the following terms:
“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.”
  1. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”

Section 120A(4) excludes the operation of s 120A(3) in certain circumstances which are not relevant to the present proceedings.

THE RELEVANT STATEMENTS OF PRINCIPLE IN THIS CASE

  1. In this particular case, there are SoPs with respect to generalised anxiety disorder, alcohol dependence and alcohol abuse.
  2. The relevant SoP to consider for generalised anxiety disorder is the current SoP for anxiety disorder, being Instrument No 101 of 2007. The current SoP for alcohol dependence or alcohol abuse is Instrument No 1 of 2009.
  3. Mr Pink has an accrued right to have the SoP in force at the time of the original Commission decision applied if the Tribunal finds that it is more beneficial to him. At the time of the original decision, the SoP for alcohol dependence and alcohol abuse was Instrument No 76 of 1998.

THE HEARING

  1. Mr Pink gave evidence and his statement filed with the Tribunal was received into evidence as Exhibit A1. Various other exhibits were received into evidence, including the documents filed under s 37 of Administrative Appeals Tribunal Act 1975 (the T documents). The Commission did not call any witnesses to give evidence.
  2. Mr Pink originally signed on for 12 years in the Navy, but he elected to leave Naval service in 1973 because, on his account, of his drinking and his anxiety issues.
  3. In his statement Mr Pink claims to have suffered three stressors during operational service that have lead to the claimed conditions.
  4. He told the Tribunal that he is now confident that the first incident occurred on board the HMAS Yarra (the Yarra) which was the escort ship for HMAS Sydney (the Sydney) on his first trip to Vietnam. The Yarra was in Vung Tau Harbour in Vietnamese waters at the time.
  5. He heard a loud explosion while on duty in the sonar control room listening for divers. In his evidence to the Tribunal he acknowledged that this room was 14 or 15 feet above deck. Every now and then he would operate the sonar. There was no PA system in the sonar control room and messages would be conveyed from the deck by the leading hand, who wore head phones and was in contact with the deck. He claims that there was no warning of this explosion and it momentarily led him to believe the ship was under attack. He was one of two operators wearing head phones at the time and operating the underwater sonar and listening for divers. After 30 seconds he was told by the leading hand that the sound was a scare charge.
  6. His recall is that this incident occurred while he was on his first of three separate trips to Vietnam during operational service. He claims now to recall quite specific detail of the incident, including the number of people in the sonar control room with him at the time of the explosion and the feelings he had during the 30 seconds it took for them to be advised that the explosion was a scare charge being let off.
  7. In that instant he said that he feared for his life and for the lives of those around him. His stomach churned and he wanted to get out of the sonar control room. The 30 second incident “totally affected” him.
  8. He acknowledged in his evidence that usual practice was that if scare charges were to be let off, then a warning would be given to take off head phones. He did not claim to have suffered any acoustic trauma as a result of this incident.
  9. He recalls that some 45 minutes after the incident he went from the sonar control room to the quarter deck, where he was on duty as a lookout for some four hours before returning to sonar control room duties. Shortly thereafter the Yarra sailed for Singapore. He thought that it was between this first period on operational duties and the next that he increased his consumption of alcohol. He found that it helped him sleep.
  10. An earlier witness statement dated 10 January 2003 was put to Mr Pink in cross-examination (T19/130-138). His evidence to the Tribunal on this occasion was about a singular scare charge incident. In the earlier statement he did not refer at all to a specific scare charge incident. Mr Pink explained this apparent omission in the earlier statement by saying that he must have been “guessing” when he made the earlier statement.
  11. The second incident involved the sighting of explosions over the hills at Vung Tau. He told the Tribunal that he was on watch in the afternoon and the Yarra was at anchor. In his statement (Exhibit A1), he said that he could not recall which tour of duty he was on when the incident occurred. In his evidence to the Tribunal, he thought that perhaps it was his first tour of duty in Vietnamese waters.
  12. He was on watch on the side of the ship. It was daylight. He saw flashes over the hills some 30 kilometres or so away. He felt in danger as he was in a war zone. He felt worried about what was happening on the ground and who was getting hurt. He thought about the possibility of the Yarra coming under attack. He wondered if it was napalm bombs being dropped. He felt tired and anxious at the time.
  13. The third incident occurred when the Yarra was steaming along the coast of Vietnam and came up behind an unidentified ship. He was on watch on the Bridge at the time. In his statement he said that the incident occurred around dusk and that the ship did not identify itself for 5 to 10 minutes. There was concern as to whether it was an enemy vessel and the Yarra’s guns were loaded and trained on the ship. He was fearful that the ship was an enemy and that the Yarra would be fired upon. He felt the Yarra gain speed and there was a minor change in its course. He had his binoculars trained on the vessel at one stage. He described it as being a bit smaller than a frigate.
  14. He estimated that the unidentified ship was some 15 to 20 nautical miles away when sighted. He recalled that the Yarra closed down to action stations as it approached the unidentified ship.
  15. Mr Pink told the Tribunal that the individual stressors each caused him to feel anxious and that he began drinking more alcohol to help him cope with his feelings. He found that he was increasingly getting into fights on the ship and in 1972 and 1973 he was disciplined by Naval authorities for creating a disturbance, for being improperly dressed and for the improper use of a Naval vehicle (Exhibits A2, A3 and A4).
  16. On a number of occasions while giving his oral evidence to the Tribunal, Mr Pink said that he had a poor memory for events. He said that his memory was “a blur” and “he thought that his drinking became much worse in the year after his discharge”.

OTHER RELEVANT EVIDENCE

  1. The Commission tendered some evidence which included a research report by Writeway Research Service Pty Ltd dated 6 November 2009 (Exhibit R2). This report provided some general background.
  2. It confirmed that on 27 February 1971, the Yarra was detached at 1641 hours “to investigate an unidentified contact 12 miles ahead”. The ship increased speed and went to action stations while the ship closed and identified the vessel some 11 minutes later as being a USN ship, the USS Energy.
  3. The report went on to comment that although on this occasion the likelihood of a surface threat was “remote”, it was probably the first time that most members of the ship’s company had closed at action stations “for real”. The report acknowledged that ship’s personnel may have been surprised and concerned at this unexpected event.
  4. The report also commented that usual procedure would be for personnel to be briefed before arrival about the possible use of scare charges and it was also the practice to broadcast a warning before scare charges were thrown from the vessel.
  5. The same report included a photograph of the Yarra and indentified the location of the sonar control room. It was well above the deck and Mr Pink acknowledged this in his evidence. The report commented as follows with respect to the sonar room incident:
“The scare charge used in 1970 was either a one [and] a quarter pound or a one pound charge fitted with a percussion fuse which was to be thrown well clear of the ship or boat. Thrown from the upper deck of a frigate such as YARRA the average firing depth was six metres, compared with ship’s nominal draught of 5.3 metres. When heard in compartments below the waterline, such as the engine rooms, a scare charge explosion near the ship’s side presents as a short, sharp ‘thud’ or ‘crump’, startling when unexpected but not a large explosion that might be construed as ordnance impacting on the ship or a mine exploding underneath the hull; such more severe impacts would send heavy physical shocks through the ship’s hull. The explosion would be heard in other compartments in the ship but to a lesser degree. Scare charge explosions some distance from the ship eg those thrown from a boat 150-200 yards away, were heard as heard [sic] as a muffled thud, again more pronounced in compartments below the water line.”

  1. The report also commented that Mr Pink would have been exposed to the sound of a scare charge before leaving for the Far East and so would have some familiarity with the sound. The Yarra’s company would have been briefed about the use of scare charges prior to arrival in Vietnamese waters.
  2. The same report considered the allegation about explosions over the hills. It noted that there were no enemy aircraft in Southern Vietnam between 1965 and 1973, so the assertion previously made by Mr Pink that he had spent the day looking out for enemy planes could not be correct.

PRIOR STATEMENTS AND EVIDENCE GIVEN BY MR PINK WITH RESPECT TO THE THREE INCIDENTS

  1. In 2000, at the request of the Department of Veterans’ Affairs, and in response to a claim for (inter alia) alcohol abuse lodged by Mr Pink in March 2000 (T7/48-60), Dr Marty Ewer, a psychiatrist, provided a medical report on Mr Pink dated 19 April 2000 (T9/62-69).
  2. In that report, Dr Ewer reports Mr Pink’s account as given to him of stressful incidents that occurred during operational service. The stressors were expressed in that report in generalised terms. There was no reference to any specific sonar control room incident, nor was there any reference to the unidentified ship incident. There is a reference to enemy divers attempting to place bombs on the ship, ie the Yarra.
  3. This last reference to enemy divers was subsequently acknowledged by Mr Pink to be incorrect in any event.
  4. The reference to observations of enemy aircraft in that report bore no resemblance to the account now given to the Tribunal. It referred to Mr Pink being distressed when he saw jets engaging in air to ground fire and that he was distressed when he “saw planes dropping various bombs over Vietnam. ... some of these were Napalm bombs and he could see them exploding into flames ...”.
  5. Dr Ewer diagnosed Mr Pink as suffering from generalised anxiety disorder, alcohol abuse and alcohol dependence.
  6. Late in 2000 Mr Pink lodged a further claim for generalised anxiety disorder (T12/76-77).
  7. Dr Ewer saw Mr Pink and prepared a second report dated 11 July 2001 (T14/81-85). This report elaborated upon his original diagnosis. In that report Dr Ewer continues to report the same stressors as being those described in his previous report and made no correction to his prior report.
  8. Mr Pink’s claim was rejected. He sought review to the VRB and when unsuccessful before the VRB, he sought review to this Tribunal. The VRB's reasons for decision and the transcript of Mr Pink’s evidence to the VRB in 2001 are contained within the T documents in this matter.
  9. In his evidence to the VRB, Mr Pink corrects an aspect of Dr Ewer’s report and says that there were no divers trying to place bombs on the vessel (T16/103). He made no reference in his evidence to the sonar control room incident. He refers to having duty as a lookout when in Vung Tau and he commented as follows “Well, the only thing we were looking at was to see if anything was floating around” (T16/103).
  10. He was asked about the statement contained in Dr Ewer’s first report where he had recorded that Mr Pink experienced considerable anxiety when he was below decks and he could hear explosions nearby.
  11. Mr Pink’s response was that when he was below deck in a confined space, the sound of depth charges could be frightening because he did not know what was going on. He did not elaborate further and he did not refer to a specific incident in the sonar control room.
  12. In the same transcript, his evidence with respect to the second incident was vague. He could not recall on what trip he saw planes. He saw spotter planes, a couple of jets and he was confident he did not see either at night. Then he recalled that on one trip, he had no idea which, he was on deck and he saw planes about 10 miles away. He saw bombs being dropped and then he recounted an incident where “a jet pulled up right - right alongside of us doing about 80 knots ... about two hundred feet away roughly”. He was not sure where this had occurred.
  13. With respect to the unidentified ship incident, he first made a brief reference to this event in response to a question about whether his ship had ever been called to action stations. He recalled that they had been called to action stations when they came upon an unidentified ship. This was the first mention of the ship incident, which had not previously been described to Dr Ewer and was not one of the stressors that he had based his claim on at that point in time. The relevant piece of the VRB transcript is as follows:
“MS PHILLIPS: Was – on any of your trips, was the ship ever called to action stations or - - -
MR PINK: Well, we chased a – I think it was a – I don’t know whether it was the Vampire or the Yarra, we came up behind a – a ship and they were going to fire on it. They didn’t signal us back and in the end they actually did signal us back but it was after about 10 minutes. We were going to - - -
MS PHILLIPS: And what was the vessel?
MR PINK: It was another Yankee ship”

  1. Mr Pink was unsuccessful before the VRB and sought review from this Tribunal. His witness statement for the purposes of that earlier AAT hearing is in the T documents at T19/130-138.
  2. In that witness statement there is no mention of a specific sonar control room incident. He refers to the general experience of being locked up in the sonar control room and the noise of the depth charges being frightening. He acknowledged that the crew were aware that depth charges were being used as a scare tactic, but that sometimes they would not be given notice of a scare charge about to go off. He said it was painful to have depth charges go off if you had headphones on. He found the pressure of “not knowing” difficult.
  3. In that statement he recounts the incident where he saw planes at a distance. He saw flashes and thought that perhaps napalm was being released. He was distressed to think of those on the ground. He felt that the ship may be at risk of retaliation.
  4. He includes the unidentified ship incident in that statement.
  5. The evidence regarding his asserted condition and the date of onset of generalised anxiety disorder, alcohol abuse and alcohol dependence was outlined in Dr Ewer’s report. There is no earlier medical evidence with respect to the conditions.
  6. Dr Ewer relied on the history given to him by Mr Pink in concluding that generalised anxiety disorder was directly related to his war service. He concluded that he had suffered from alcohol abuse and alcohol dependence since he first went to Vietnam. In his second report (T14/81-85), Dr Ewer concluded that Mr Pink was suffering from anxiety disorder when he returned to Australia. The only basis for these conclusions was the historical account of his symptoms provided to him by Mr Pink.

DISCUSSION OF THE EVIDENCE

  1. Mr Pink was not a good historian when giving evidence to this Tribunal. His accounts of the various stressors that may have given rise to his condition have varied over time. For the purposes of this hearing, he relies on memories of very particular events, namely the sonar control room incident and the unidentified ship incident. These accounts were not put forward by Mr Pink when his pursuit of compensation for his generalised anxiety disorder and alcohol dependence began some nine years ago.
  2. Mr Pink has been noted by Dr Ewer, as long ago as 2000, to have reported poor memory (T9/64). In Mr Pink’s evidence to this Tribunal he claimed to have a poor memory on a number of occasions when unable to give specific answers to questions. However, he then claims to have very specific memories of, for example, the sonar control room incident that has appeared for the first time in any detail in the context of this latest round of proceedings and the incident involving the unidentified ship.
  3. The Tribunal found that Mr Pink was an unreliable witness.

CONSIDERATION AND APPLICATION OF THE LAW

  1. The claimed condition of generalised anxiety disorder is subject to a SoP, being Instrument No 101 of 2007. The claimed condition of alcohol abuse is subject to Instrument No 1 of 2009. The Tribunal must also have regard to the SoP that was in force at the time of the original Commission decision, in this case being the SoP for alcohol abuse that was in force at the time of the original decision, namely Instrument No 76 of 1998.
  2. When a SoP exists, the Tribunal must apply the test prescribed by s 120A(3) of the VE Act and follow the steps outlined in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97. Those steps can be summarised as follows:
  3. In considering whether there is an hypothesis connecting Mr Pink’s conditions with his war service, and in applying the relevant Deledio steps, the Tribunal must consider all of the material before it and whether or not that material supports the hypothesis.
  4. An hypothesis that (once again, after taking into account all of the material before the Tribunal) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull v Repatriation Commission (2001) 6 ALD 271 at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517). The Tribunal refers also to Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
  5. As regards the first step in Deledio, the Tribunal is satisfied that the material before it points to a hypothesis connecting both of the claimed conditions of generalised anxiety disorder and alcohol dependence with his operational service.
  6. There are SoPs in existence with respect to each condition. The Tribunal has already referred to the relevant SoPs.
  7. With respect to his anxiety disorder, the applicant’s counsel relies on factor 6(a)(ii) of Instrument No 101 of 2007 and asserts that Mr Pink suffered one or more category 1A stressors within five years before the onset of his anxiety disorder.
  8. A category 1A stressor is defined in that particular SoP in the following terms:
“ ...
“a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;”
  1. At the outset, counsel for the Mr Pink asserted that Mr Pink also suffered a category 2 stressor as defined in the same SoP. However, counsel did not pursue that argument in closing. As the evidence unfolded it was clear that there was not sufficient evidence to support any reliance on that particular provision.
  2. Counsel for Mr Pink submitted that alcohol abuse was a sequela to the onset of the anxiety disorder. Counsel relied on factors 6(a) and/or (b) of Instrument No 1 of 2009 with respect to alcohol dependence and alcohol abuse namely:
“(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or”

  1. The Tribunal now turns to the third step as enunciated in Deledio. Whether there is a reasonable hypothesis must be assessed by reference to the template in the relevant SoP and by reference to all the material before the Tribunal. The SoP must uphold the hypothesis before it can be regarded as being reasonable.
  2. The Tribunal is not entitled to make any findings of fact when considering the third step of Deledio.
  3. The incidents reported by the applicant, namely the sonar control room incident, the unidentified ship incident and the sighting of aircraft incident, are in a broad sense all events that could possibly fit into the definition of a level 1 stressor as defined in the generalised anxiety disorder SoP depending on the factual detail of those particular events.
  4. The only evidence given with respect to these events is the applicant’s evidence and his report to Dr Ewer some 30 years after the events. There is no other direct supporting material with respect to two of the three events upon which he relies. There is evidence in the Writeway Research Service report of the unidentified ship incident (paragraph 36 supra).
  5. If the applicant’s version of these events is accepted as per the account he now gives to the Tribunal, can any of these incidents fit the template in the SoPs?
  6. Factor 6(a)(ii) of the anxiety disorder SoP and factor 6(b) of the alcohol abuse SoPs require that the condition in each case arise within five years of experiencing a category 1A stressor. Dr Ewer’s report is material that supports the contention that the condition had arisen within five years of the incidents as described by Mr Pink.
  7. The Tribunal is not satisfied that the material before it can support the contention that either the sonar control room incident or the observation of aircraft incident can come within the definition of category 1A stressors.
  8. In the case of Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366 and in the subsequent case of Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473, the Federal Court considered the definition of “experiencing a severe stressor” within the meaning of the 1998 SoP with respect to alcohol abuse and the 1999 SoP with respect to post-traumatic stress disorder.
  9. Justice Mansfield, in a definition that was subsequently endorsed by the Full Court, commented as follows (at paragraph 50):
“50. In my judgment, the meaning of the word "threat" as used in the definition of "experiencing a severe stressor" does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause "that involved actual or threat of death or serious injury ..." explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word "threat" a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of "sound medical-scientific evidence" in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.”

  1. On all the material before the Tribunal, neither the sonar control room incident nor the firing in the hills incident could reasonably objectively be termed a “life threatening event such that even if not an actual threat it could evoke the belief in an individual that it was a life threatening event”.
  2. The sonar control room incident, on Mr Pink’s own account, was a 30 second incident. The evidence contained in the Writeway Research Service report about the size of scare charges used at that time and the noise made by them, combined with the evidence about the location of the sonar control room, point to it being a relatively muffled noise even had Mr Pink had been below deck, which he was not. In the Tribunal’s view, the material does not support this incident being within the definition of a category 1A stressor.
  3. With respect to the firing in the hills incident, on Mr Pink’s own account, the material does not support the hypothesis. It was not a serious physical attack, nor was it a life threatening event. It was something observed at a significant distance at a time when there were no enemy planes in the area. The Writeway Research Service report states that there were no enemy aircraft in Southern Vietnam between 1965 and 1973. In the circumstances, the material before the Tribunal does not support the sighting of the planes by Mr Pink as being a category 1A stressor.
  4. The unidentified ship incident when Mr Pink’s ship went to action stations could possibly be interpreted as a life threatening event in that the call to action stations and the fact that the vessel did not immediately identify itself, may reasonably cause fear of “an indication of probable evil to come: something that gives indication of causing evil or harm” (Repatriation Commission v Stoddart [2003] FCAFC 300 at para 36).
  5. The Tribunal will therefore move to the fourth step of the Deledio analysis and make findings of fact with respect to that particular incident.
  6. The Tribunal has already stated that it found Mr Pink to be an unreliable witness with a poor memory. The Tribunal makes the following findings with respect to the incident in which Mr Pink claims that an unidentified ship was seen some distance ahead of his vessel when the ship was steaming along the coast of Vietnam.
  7. The Tribunal finds the following on the balance of probabilities:
  8. Based on these findings, the Tribunal is satisfied, beyond reasonable doubt, that Mr Pink did not experience a category 1A stressor as alleged when the sighting of the unidentified ship occurred.
  9. The Tribunal must also consider whether Mr Pink’s alcohol abuse was a sequelae to the onset of anxiety disorder. In that regard he relied on factors 6(a) and/or 6(b) of Instrument No 1 of 2009 with respect to alcohol dependence and alcohol abuse, namely
“(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a category 1A stressor within the five years of the clinical onset of alcohol dependence or alcohol abuse;”

  1. The Tribunal must have regard to whether he had a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence.
  2. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331. The Court noted the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”

  1. That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
  2. For a psychiatric condition to be clinically significant, it would mean that there must be proper diagnosis and ongoing management of that condition by a psychiatrist, counsellor or general practitioner. There is no history of any such treatment prior to Mr Pink seeking the assistance of Dr Ewer in the year 2000 when he retired from his employment.
  3. The Tribunal is satisfied, beyond reasonable doubt, that at the earliest, anxiety disorder presented as clinically significant in Mr Pink’s case in the late 1990s. There is no evidence at all that he developed an anxiety disorder in a clinically significant way in the years after he ceased his service.
  4. He therefore does not satisfy the requirements of the SoP with respect to alcohol abuse which it appeared well pre-dated the diagnosis of an anxiety disorder.
  5. In the circumstances the Tribunal affirms the decision under review.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Mr S J Ellis AM (Member)


Signed: .............J Coulthard.......................................

Associate


Date of Hearing 13 November 2009

Date of Decision 22 January 2010

Counsel for the Applicant Mr N Floreani

Solicitor for the Applicant Tindall Gask Bentley

Advocate for the Respondent Mr A Crowe

DVA


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