Anderson and Repatriation Commission
[2003] AATA 292
•28 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 292
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/495
VETERANS' APPEALS DIVISION ) Re WAYNE ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date28 March 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Wayne MacArthur Anderson suffers from war-caused PTSD. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable to the applicant on and from 12 September 2000. (Sgd) I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – PTSD – whether applicant’s PTSD is related to his war service – whether applicant has experienced a severe stressor – whether reasonable hypothesis established connecting PTSD with war-service
Veterans’ Entitlements Act 1986 ss 6, 9, 119, 120, 120A, 196
Repatriation Commission v Deledio (1998) 49 ALD 193
Dunlop v Repatriation Commission [2002] FCA 1400
Repatriation Commission v Bey (1997) 79 FCR 364Re Horton and Repatriation Commission [2003] AATA 84
REASONS FOR DECISION
28 March 2003 Mr I R Way, Member 1. This is an application by Wayne MacArthur Anderson for review of a decision of the Repatriation Commission dated 23 April 2001, affirmed by the Veterans’ Review Board on 15 April 2002, which refused the applicant’s claim for war-caused post traumatic stress disorder.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documentary evidence:
§ Exhibit A1 Affidavit of Mr De Jong dated 4 January 2003
§ Exhibit A2 Report of Dr Rosser dated 3 July 2002
§ Exhibit A3 Report of Dr Rosser dated 18 September 2002
§ Exhibit A4 Affidavit Mr Dickson dated 20 January 2003
§ Exhibit A5 Photograph with letter dated 21 January 2003
§ Exhibit A6 Report of Dr Freed dated 13 January 2003
§ Exhibit A7 Statement of Wayne Anderson dated 17 July 2002
§ Exhibit A8 Press cutting British newspaper
§ Exhibit A9 Typed notes to Dr Rosser
§ Exhibit R1 Writeway Research Report dated 19 September 2002
§ Exhibit R2 Writeway Research Report dated 5 October 2002
§ Exhibit R3 Curriculum vitae of Colonel John Church
3. The applicant, Dr Rosser and Colonel JM Church gave oral evidence. Mr AJ Dickson gave evidence by telephone. Mr M Smith appeared for the respondent and Mr J Griffiths represented the applicant.
4. The applicant was born on 5 June 1944 and served in the Australian Army from 17 January 1962 until his discharge on 14 February 1968. During this period he served in Malaysia and Borneo with 102 Field Battery, Royal Australian Artillery, from 17 August 1964 to 19 October 1965; this being operational service as defined in section 6 of the Veterans’ Entitlements Act 1986 (the Act).
5. The applicant has the following accepted service related disabilities:
§ Bilateral sensorineural hearing loss with tinnitus
§ Non-melanotic malignant neoplasm of the skin
§ Gastro-oesophageal reflux disease
His non-service related disabilities are:
§ Osteoarthrosis of the left ankle and foot
§ Osteoarthrosis of the right ankle and foot
§ Osteoarthrosis of the right knee
§ Osteoarthrosis of the right hip
§ Post traumatic stress disorder
6. He is also accepted as eligible for treatment of the following (not service related) disabilities:
§ Malignant conditions
§ Post traumatic stress disorder
7. The issue in this matter is whether the applicant’s post traumatic stress disorder (PTSD) is war-caused within the meaning of the Act.
8. The applicant says he suffers from war-caused PTSD. The hypothesis put forward by the applicant is that he suffered severe stressors while serving in Malaysia and Borneo and that these stressors were the cause of his PTSD.
Legislative Framework
9. The relevant provisions of the Act are as follows:
“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. “
10. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“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.
…
(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.
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.
(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.
(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.”
11. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
12. The RMA has, pursuant to section 196B(2) of the Act, determined a SoP in respect of PTSD. It is common ground between the parties and the Tribunal accepts that the relevant SoP in this matter is Instrument No 3 of 1999 (as amended by No 54 of 1999).
13. The SoP relevantly provides:
“Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
…
8. For the purposes of this Statement of Principles: …
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
14. Section 119 relevantly provides as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to.
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the defence Force or of a Peacekeeping force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
15. Subsection 120(6) of the Act provides that no onus of proof lies upon either party to this review.
Applicant’s Evidence
16. The applicant told the Tribunal about a number of stressful events that he said had occurred during his Army service in Malaysia/Borneo.
17. The first event he recounted occurred during his participation in Operation FLOWER.
18. On 29 October 1964 a party of some fifty-four Indonesian insurgents and Malayan terrorists landed in a mangrove swamp at the mouth of the Kesang River on the border between the Straits of Malacca and Johore. In response to the incursion, 28 COMWELL Infantry Brigade deployed a force comprising infantry, armour and artillery to cordon the area of the landing and to capture the insurgents. The artillery troops deployed were from 102 Field Battery (part of 45 Lt Fd Regt RA) and included the applicant.
19. It was the applicant’s evidence that the troops from 102 Field Battery were deployed initially in an infantry role as part of the inner cordon. He said that the battery was divided into several sections, and the section he was allotted to comprised approximately eight soldiers under the command of a Bombardier. He said that each soldier was armed with a self loading rifle except he was armed with a Bren machine gun. He said that his normal role within the battery was as a gun number/equipment repairer and that his personal weapon was the Bren gun.
20. It was the applicant’s evidence that as part of Operational FLOWER his unit arrived in the Merlimau area about midday and that each section was told to enter different areas of the mangrove swamp. Later in the day he said his section was returning to their base area (some five to six kilometres away) from where they had been deployed into the swamp and that his section had come under fire from the insurgents. He said he and the rest of his section went to ground but did not return fire as they could not see any enemy nor could they pinpoint the enemy. He told the Tribunal that he heard bullets coming at him, that he could hear the fire coming from automatic weapons to his immediate right and that the firing lasted for ten to fifteen seconds and that “it was pretty full on”. He said he was face down in the mangroves, thought that at any moment an enemy round would hit him and he feared for his life. He said he was “shit scared”.
21. The applicant told the Tribunal that he and the rest of his section remained spreadeagled in the mud for fifteen to twenty minutes and then gingerly got out of the area and returned to their start point, had an evening meal and undertook picket duty during the night.
22. When asked whether the incident of the section taking enemy fire had been reported, the applicant said he was only a gunner, did as he was told and did not know what had been reported. He said that the section he was in during the cordon operation did not have any radio communication equipment. He was unable to give details about the extent of the cordon nor the location and communication arrangements between the various sections in the cordon.
23. He was able to recall that John Dickson and Leonard De Jong were gunners in 102 Field Battery and members of the same section he was in during the cordon operation. He said he had seen both of these men recently but prior to that had not seen them for 38 years or so.
24. On cross-examination the applicant was taken to T4/27 (Dr Rosser’s report of 21 February 2001) where Dr Rosser recorded the applicant’s history and where Dr Rosser made no specific mention of Operation FLOWER and the applicant coming under enemy fire. He said that at that time he was more depressed by his more recent experiences in Asia however he had mentioned the Merlimau incident to the Doctor. Furthermore, when referred to T4/76 and T4/108 of the T documents, where he had not mentioned coming under enemy fire and Operation FLOWER, the applicant said he could not deny that nor could he say why he had not mentioned the enemy fire at that time. However, on re-examination he said that the documents referred to had been drafted in an attempt to give Dr Rosser (his psychiatrist) an indication of his military background rather than a recounting of specific events. In the applicant’s typed statement given to Dr Rosser and dated 29 December 2000 (Exhibit A9) the applicant said he typed the statement to relate the reasons for the causes of the nightmares and flash-backs and that his statement touched on the overall cause but did “not go into infinite detail”. With respect to the Merlimau incident he stated:
“ In December of 1964 some 50 troops of the Indonesian Army (also Enemy) landed in Malaya at an area just south of the Kampong (village) of Merlimau, 102 Field Bty along with part of 3 RAR were sent there to stop the enemy, we served here firstly in an Infantry capacity, wading through swamp land up to our crutch in leech infested mud, searching for the enemy, once more I was scared shitless and in fear of losing my life.
We only captured three as the mangroves were so thick and impenetrable that they were hard to locate, subsequently we put our Artillery guns into action to help flush them out. This encounter, for 102 Field Bty was only a two day conflict, but it put the fear of death into me.”
25. The Tribunal notes that the photograph (Exhibit A5) which the applicant says he took in 102 Fd Bty area on the afternoon of the first day of the operation shows three captured Indonesians insurgents.
26. The second event he recounted related to his service as part of a 102 Field Battery Artillery group of approximately twelve soldiers supporting the British 2nd Parachute Battalion at Gunan Gajak (GG) in Sarawak, Borneo.
27. He said that the artillery group at GG comprised one 105mm mountain gun with its associated gun numbers, support members and that this group was deployed in Borneo during the period 3 May to 18 July 1965.
28. He said that on one occasion he was attached to a 2 Para Patrol (of about six soldiers) which was tasked to provide backup protection to a party of Ghurkha troops cutting a helicopter LZ/DZ some distance away from GG. He said he was the only Australian attached to the patrol and described his role on patrol as machine gunner (Bren gun). He could not recall when this event occurred. He said the para group was choppered into the LZ and, while there, made contact with and exchanged fire with Indonesian troops. He said this contact resulted in three or four enemy dead and one Ghurkha soldier injured. During this operation he described seeing a Ghurkha soldier decapitate an Indonesian soldier who he said was a live prisoner at the time. He said this incident shook him up badly and that he went numb, just switched off and vomited. In his written statement dated 4 June 2001 (T4/75) the applicant stated that the 2 PARA ambush on 14 June 1965 referred to in 102 Fd Bty’s war diaries was highly likely to be the patrol he was referring to.
29. He said that on return to GG he explained what had happened to his senior NCO (WO Peter Ovenden) and requested not to go on any more patrols.
30. In his statement dated 29 December 2000 the applicant said:
“Next came Borneo, 1965, approx. April to July (or May to August) I know I had my 21st birthday there which was in June.
102 Field Bty had their guns spread out along a vast section of the border of Sarawak, which is Malaysian held and Kalimantan which is Indonesian held.
The gun crew that I was a part of was situated at a Kampong called Goonan Gudja together with a section of the 2nd Parachute Regt., being a British Army unit employed in an Infantry come S.A.S. capacity. On several occasions I went on patrol with the ‘2nd Paras’ once more in an Infantry capacity, the first time was at the request of my Gun Commander, a Warrant Officer Percy Overton, the reason as I understood it was something to do with the fact that the ‘2nd Paras’ were down a Machine Gunner and I was the (Bren) Machine Gunner for our gun crew.
The job we had to do was to observe Kampongs along the Sarawak/Kalimantan border, to be undetected by the natives of the Kampong and to find out, through observation, whether they we (sic) harbouring the enemy, (for the village people it was a ‘catch 22’ situation, which ever ‘side’ they helped they were doomed by the ‘other side’, I felt sorry for them because they were in a ‘no win’ situation, because they still had to live and survive).
If the situation with the Kampong was confirmed to be ‘harbouring’ we were to ‘seek and destroy’ if not confirmed but suspicious, we were to enter the village and search each hut, which I found an awkward task because there would be adults and children objecting strongly, (and rightly so) so we would push them aside to do the check, keeping in mind that if the enemy were inside the hut then we were ‘Dead Meat’ by ambush, it was extremely nerve racking to say the least I was very much in fear of my life.
On the last patrol that I did with the ‘2nd Paras’ we went out into the jungle by helicopter to meet up with some Ghurkha soldiers who were already out there cutting ‘LZ’s’ and ‘DZ’s’, we were there to safe guard them, the next day we walked into an ambush, all hell broke loose, there were rounds flying in all directions, I think the attack only lasted about 10 minutes, I do not know how many enemy there were but I think we got about four, they wounded one of the Ghurkhas, but what I do vividly recall after the assault was a Ghurkha soldier with a Ghurkha knife going up to one of the enemy soldiers lifting his head up off the ground by the hair and cutting his head off. He (the enemy solder) must still have been alive because his neck spurted blood everywhere, seeing it made me vomit my guts up”
31. In cross-examination the applicant said he could not recall what the Ghurkha used to cut off the Indonesian’s head and that he could not recall anyone trying to stop the Ghurkha; he had no idea what was done with the head; and could not remember what was done with the dead enemy bodies.
32. The applicant was referred to the Writeway Report (T4/31 and 38) where the official records showed no evidence of any Australian artillery members being involved in any direct enemy contacts or ambushes with 2 Para or any other unit in Borneo in 1965; or any records that support his claim about a Ghurkha cutting off an Indonesian’s head. He said he had tried to relate his experiences to the enemy contacts referred to in the T documents but had been unable to do so. The Tribunal notes that the British MOD (T4/105) records D Company 2 Para being involved in a number of ambush operations during June 1965 but none of these operations involved Ghurkha troops. And that on 29 May 1965 (T4/40) a 1/6 Ghurkha Regiment patrol ambushed a party of Indonesians in the vicinity of Tevadu resulting in four enemy KIA and one enemy WIA, at which the time the applicant was deployed at GG.
33. The Tribunal notes that BJ Froben, a member of 102 Fd Bty, served with the applicant at GG and in a written statement dated 6 June 2001 said that the applicant did at least two patrols with 2 Para (T4/82). And that R Gann, also a member of 102 Fd Bty who served with the applicant at GG, in a written statement dated 27 April 2001, recalled that the applicant was involved in some patrolling with 2 Para (T4/85). Mr Froben and Mr Gann provided their statements at the request of the applicant.
34. The applicant said he had seen Dr Rosser, on referral by his GP. It was the applicant’s evidence that he had seen his GP a couple of years ago because he had become concerned about getting progressively more violent, aggressive, bad tempered and anti-social and wanting to hurt others. He said Dr Rosser had diagnosed him as suffering from PTSD and that he had been and was still in Dr Rosser’s care, having seen him weekly for the first twelve months after his initial consultation and now fortnightly. He said that he had told Dr Rosser about the incident at Merlimau and the incidents while on patrol with 2 Para.
35. In cross-examination the applicant was taken to T4/28 where Dr Rosser records the applicant stating that several days after the Ghurkha incident he “tried to blow off his own head with his Bren gun when he was alone in his bunker but apparently his head moved off the end of the barrel as he bent to pull the trigger and as no one else was witness to the event he stated that he had had an ‘accidental discharge’ and stated that he was charged for this”. He said this account of what had happened was correct, that he could not recall when it happened but it had been a single shot from his Bren gun.
36. The Tribunal notes that the only charge recorded for an offence committed by the applicant in Sarawak occurred on 14 May 1965, (soon after the applicant first deployed to GG) as follows (T4/40):
16581 GNR W Mc. Anderson – 102 FD BTY RAA (Attached to 45 LT FD REGT RA). Whilst on Active Service.Acted to the prejudice of good order and military discipline, contrary to Section 69 of the Army Act in that he, at GUNAN GAJAK in SARAWAK, on 14 May 65 did discharge his rifle through careless handing, thereby endangering the lives of his comrades. Witness listed as 2224 WO2 P.J. Ovenden of 102 FD BTY. Found guilty and forfeited 14 days from pay.”
The Tribunal notes that the above charge relates to a discharge from a rifle and not from a Bren machine gun. And that BJ Froben stated (T1/P) that he was present at GG in the latter part of June 1965 when the applicant discharged his Bren gun, the round narrowly missing him and WO Ovenden.
AJ Dickson’s Evidence
37. Mr AJ Dickson provided a written statement (Exhibit A4) and gave evidence by telephone.
38. He told the Tribunal he could recall Mr Anderson and the incident in the Merlimau area and that he was in the same section as Mr Anderson at the time. He said that he had recently been in contact with Mr Anderson but this had been the first contact for 30 years or so.
39. In his written statement he said:
“1.During 1963 to 1965, I served as a gunner with 102 Field Battery, Royal Australian Artillery.
2.The Battery was posted to Malaya in support of the 3rd Battalion, The Royal Australian Regiment (“3RAR”) as part of the British Forces 28th Commonwealth Brigade.
…
4.At midday on the 29th, the Battery was deployed to a new position at Merlimau, which was on the Malay peninsular.
5.We were informed that Indonesian insurgents, opposed to the formation of Malaysia and independence from the British Commonwealth, had landed and were located in a mangrove swamp.
6.On arrival at Merlimau, the Battery was formed into infantry patrols comprising one NCO and about six Other Ranks.
7.We were ordered to search the mangroves.
8.I recall Gunner WAYNE MacARTHUR ANDERSON being the machine gunner of our patrol.
…
10.We searched our sector of the mangrove swamp without contact.
11.At dusk, as we were returning through the mangroves to our starting position, our patrol came under heavy automatic fire from within the mangroves.
12.We went to ground as rounds were flying all around us. It was two or three bursts of machine gun fire and we were in fear of our lives.’
13.The patrol did not return fire because we could not locate the enemy due to the density of the mangroves.
14.After about 15 to 20 minutes without further firing, we moved to our night location where we stood to for the remainder of the night. …”
40. In oral evidence, Mr Dickson said that the enemy automatic fire had been heavy but had been over very rapidly. He could not recall the section having any communication equipment or attempting to contact others for support; nor could he recall the direction from where the enemy fire had come or the section returning enemy fire; or the distances involved between the enemy and his troops; and he did not know if the incident had been reported to superiors.
41. Mr LW De Jong served with the applicant in 102 Fd Bty and in an affidavit dated 4 January stated, with respect to Operation FLOWER (Exhibit A1):
“To reach our designated patrol area, we had to wade through chest high water in drainage ditches as well as thigh high water through rice paddies. We arrived just after mid-afternoon at our patrol sector, the edge of the mangrove swamp came right up to the base of the levee banks around the rice paddies.
…
We were heading back to our start point on our return leg of the patrol. It was just going on dusk, when without warning we were fired upon by at least three automatic weapons. Fearing for our lives, we hit the deck and went to ground. We heard rounds whizzing past us and hitting the levee bank, we were shocked, it was the first time that we had been under enemy fire. We were covered in mud and ooze, by the time we got our wits back we could not locate the insurgents. The mangroves were just too thick to penetrate, we did not return fire.”
Colonel JM Church
42. Colonel Church is employed by Writeway Research to undertake historical research of military operations and with respect to this case, as a result of his research, he provided three written reports (T4/101-105, Exhibit R1 and Exhibit R2). It should be noted that Colonel Church was Brigade Major of 28 COMWEL Inf Brigade during the relevant period and in this capacity had some first hand knowledge of Operation FLOWER. As can be seen from Colonel Church’s CV (Exhibit R3) he is a very experienced Australian Army Infantry Officer.
43. In summary his written report about Operation FLOWER is as follows:
“5. In the early hours of the morning of 30 October, three boats containing 47 members of an Indonesian commando unit and five Malaysian traitors landed on either side of the mouth of the Kesang River near the border between the Malaysian states of Malacca and Johore. Early warning had been received some 10 days earlier of this projected operation and a member of the local vigilante corps, who was manning an observation post near the river, detected the landing at 3:00am. At first light, the Commander 28 COMWEL Inf Bde Gp issued orders for a rifle company from the Australian battalion, 3 RAR, a rifle company from the New Zealand battalion, 102 Fd Bty and armoured cars of the 4th Battalion The Royal Tank Regiment (4RTR) to move to and cordon the area under the command of then LTCOL (now MAJ GEN) BA McDonald, now deceased. By midday about 20 of the enemy had been rounded up without them firing any shots, mainly due to the thick mangrove mud, which encased them and their weapons. That night the remainder tried to break out of the cordon but were prevented by the cordon troops firing towards them. The next morning, 3 RAR mortars and the guns of 102 Fd Bty fired into the swampy areas where it was thought the remaining Indonesians might be holed up. This proved successful and 29 further enemy soldiers surrendered to 3 RAR. The remaining two surrendered to villagers about two weeks later, both weak and one wounded1. This operation was known by the codeword FLOWER and was commanded from a headquarters set up in the Police Station at MERLIMAU.
6. The area was contained by the troops who cordoned the landing area in two lines. D Company 3 RAR, B Company 1 RNZIR and troops of the Australian field battery acting as infantry, manned the inner cordon; and the armoured cars of 4 RTR, which manned the outer cordon2.. The inner cordon was occupied by the troops who took up positions on the paddy bunds. The armoured cars in the second cordon maintained their line by patrolling the road that ran parallel to the coast.
7. The only small arms firing that took place during this confrontation was by members of the Australian rifle company, who fired into the swamp. … [A]t no time was enemy fire directed at any of the troops.”
1 Horner, 1990 page 157
2 Horner, ibid
44. In his oral evidence Colonel Church explained to the Tribunal how an Infantry Company (of approximately 120 men) would be deployed in the cordon group, using infantry sections of approximately ten men, generally in a “two up” formation and that these troops would have been part of the inner cordon. He said he was not sure how the artillery battery (of approximately 100 men) would do such an operation.
45. It was his recollection that the inner cordon was deployed on open ground surrounding the swamp, that there was good visibility between sections, and sections were capable of giving covering fire to other sections. He said he did not think our own troops went into the mangroves at all. However, he said that although he had been with the Brigade Commander when he was briefed by the Commander of Operation FLOWER at Merlimau on the morning of 31 October, he had not personally been in the area of the cordon.
46. Colonel Church said that, as best he could recall, no own-troops fire had been brought to bear on the enemy infiltrators in the swamp during the daylight hours of the first day. However, subsequent rifle, machine gun, mortar and artillery harassing fire had been applied to the suspected enemy locations. It was also his evidence that he would have expected any enemy fire on 102 Field Battery troops to be reported.
47. With respect to the incident in Sarawak, recounted by the applicant, Colonel Church, on advice from the British MOD, said that he could find no record of enemy action where 2 Para had been involved with Ghurkha troops as described by the applicant. He said that the records showed that 2 Para had ambushed a large party of Indonesians (approximately 100) on 24 June resulting in a number of enemy KIA; and on 14 June 1965 when a 2 Para ambush was accidentally sprung resulting in one enemy WIA or KIA, there being no artillery fire called for.
48. Counsel for the applicant took Colonel Church to his two reports (Exhibits R1 and R2) and in answer to questions about discrepancies between the two reports Colonel Church said he has been reading David Horner’s book “Duty First; The Royal Australian Regiment in War and Peace” and came across information which was relevant to the incident at Merlimau and he had, as a result of this information, revised his report. The Tribunal notes that the essential differences between the two reports are:
(a)the first report talks about three cordon lines whereas the second report refers to only two cordon lines;
(b)the first report did not refer to the deployment of a Rifle Company from the New Zealand Battalion; and
(c)the first report recorded the capture of all but two of the enemy on the first day whereas the second report states that twenty enemy had been captured by midday on day one, the remainder (less two) surrendering on day two.
49. The Tribunal notes that Major Tilbrook, the author of the Writeway report dated 22 April 2001 (T4/31-41) has extensively researched the applicant’s claimed stressful events in Borneo, and could find no evidence in official records or from discussions with former members of the applicant’s unit to substantiate the applicant’s claims.
50. The Tribunal notes that the VRB, in its Reasons for Decision dated 27 November 2001 (T5/116), stated with respect to the Merlimau incident:
“At today’s hearing, the veteran introduced a description of another incident not previously raised. This incident related to his service in Malaya, before he left for Borneo. It concerned an operation to deal with an infiltration of Indonesian forces at Merlimau. The Merlimau incident is described in the extract referred to as exhibit 1 and there are a number of other written accounts describing it. Essentially, a number of infiltrators landed from fishing boats in the early hours of 29 October 1964 but were soon detected and later, most were rounded up.
The veteran told the Board that when he went to the area in question with his unit (102 Field Battery), it was discovered that 3 RAR had no ammunition and so he and the others were divided into groups of three to search the mangroves for infiltrators. He said he had been in the mangroves for about an hour when he was fired upon, whereupon he hit the ground, staying still for about 20 minutes. He said the firing went on for a few minutes, although he could not see where it was coming from. He said his group did not return fire but waited before leaving the mangroves. According to his account, about two hours later, they deployed their artillery in bombardments on the area.”
51. With respect to the 2 Para patrol, the VRB recorded the applicant giving the following evidence (T4/96):
“The Board sought further details from the veteran about this patrol during the course of the hearing. He said that he went out by helicopter to join up with Ghurkha soldiers who had already been out some time, clearing a landing zone, explaining that the group was acting in support of a Ghurkha Battalion.
The veteran told the Board that the patrol consisted of six Ghurkhas and six men from his own unit. He said that after breaking camp at approximately 0830 hours, they began walking out through the jungle in single file with the Ghurkhas travelling in front. The veteran said that they were ambushed from a right forward, higher position. He said they suddenly began receiving enemy fire and that everybody hit the ground and attempted to return fire.
The veteran said that ultimately, they repulsed the attack and then began the cleaning up phase before calling in helicopters to take them out. The veteran said that as far as he could recall, one of the Ghurkhas was shot in the leg but there were no other casualties on their side. The veteran said that they had managed to kill a number of enemy soldiers during the ambush (he thought that about four enemy were killed).”
And furthermore, the applicant told the VRB that the CARO record of his charge for accidentally discharging his weapon had wrongly recorded the date as 14 May 1965.
Medical evidence
52. Dr Rosser, Consultant Psychiatrist, provided three written reports as follows:
§ Report dated 21 February 2001 (T4/27)
§ Report dated 30 July 2002 (Exhibit A2)
§ Report dated 18 September 2002 (Exhibit A3)
53. In his written report of 21 February 2001, Dr Rosser recorded a history from the applicant, including the following:
“He described a number of incidents where again he was sent on patrol in an infantry capacity and again described himself as being extremely fearful and in fear of losing his life.
He described another conflict in Borneo in 1965 and an occasion when he had to go on patrol with the second parachute regiment (a British Army unit) and again was extremely fearful for his life.
On this last patrol he stated that they walked into an ambush and he believes that about four enemy were killed and there were injuries to their own troops, but he states that he vividly recalls that after the assault a Ghurkha soldier with a Ghurkha knife going up to one of the enemy soldiers, lifting his head off the ground by the hair and cutting off his head. The enemy soldier was still alive at the time and following the beheading Mr Anderson stated that he was physically ill and had little memory of the return trip back to base.
He stated that several days later he tried to blow off his own head with his brengun when he was alone in his bunker but apparently his head moved off the end of the barrel as he bent to pull the trigger and as no one else was witness to the event he stated that he had had an ‘accidental discharge’ and stated that he was charged for this.”
54. In his report of 30 July 2002 (Exhibit A2), Dr Rosser stated:
“The Merlimau incident clearly acted as a severe stressor (within the terms of Paragraph A of the Statement of Principles) and undoubtedly would have been directly implicated in the subsequent development of the post traumatic stress disorder experienced by the veteran.”
55. In his oral evidence Dr Rosser reinforced the opinions he had expressed in his written reports.
56. He confirmed that he had used the incidents suffered by the applicant at Merlimau and at GG in the preparation of his report of 21 February 2001 and that he had received the applicant’s typewritten notes (Exhibit A9) in early January 2001 (some four to five weeks after he had first seen the applicant) and that these notes touched on the causes of the applicant’s problems in general and not in detail. He further explained that subsequent to receiving the typed notes (Exhibit A9) he had become aware of the shooting incident on Operation FLOWER. He was not sure when but thought it would have been prior to 30 July 2002. He said he was in no doubt that the incident at Merlimau, as described by the applicant, was a severe stressor and directly implicated in the applicant’s PTSD. Furthermore, he said he was not at all surprised that the applicant had not mentioned this incident in detail until sometime after his first consultation with him.
57. Dr Rosser said that he had prescribed tricyclic antidepressant medication for the applicant, that he was still taking such medication, namely Dothep (100 mg per day) as well as undergoing psychotherapy. He said that the applicant’s sleep had now improved with less nightmares but he was still agitated, tremulous and unsettled. In cross-examination, Dr Rosser said that in arriving at his opinions of the applicant’s condition he had relied on the applicant’s own statements of the events he had suffered and the feelings he said he had experienced as a result of these events.
58. He also said that it was not at all unusual for symptoms of PTSD to emerge many years after incidents occurred as was the case with Mr Anderson. As to the applicant’s ability to deal with the stress of appearing as a witness at the Tribunal, Dr Rosser expressed the view that he would have expected the applicant to be reasonably well prepared for his day in court and the need to control his feelings.
59. The Tribunal notes that Dr Rosser in his report of 21 February 2001 assessed the applicant as suffering from PTSD based on DSM IV diagnostic criteria A,B,C,D,E and F. And in his report dated 18 September 2002 (Exhibit A3) said:
‘It was clear from his history, the history from his wife and from his mental state examination that he was suffering from Post Traumatic Stress Disorder and that this illness had its origin in war related experiences.”
These conclusions are consistent with the comments made by Dr Rosser on 30 January in the medical impairment worksheets he completed (T4/24-25).
60. Dr Norman Rose, consultant psychiatrist, saw the applicant on 27 June 2001 and provided a written report dated 30 June 2001 (T4/55-62). Dr Rose recorded a history of the applicant being involved in patrols in Southern Malaya and becoming “involved in a confrontation with shooting between his forces and a group of Indonesians”. And being on patrol with a British unit in Sarawak when several enemy were killed and a Ghurkha soldier committed an atrocity against the enemy. Dr Rose diagnosed the applicant as suffering from severe PTSD which he considered was caused by witnessing atrocities while he was serving in Borneo.
Submissions
61. Mr J Griffiths, for the applicant, submitted that the applicant had responded to questions put to him frankly and to the best of his recollection of events. And that his evidence was supported by other members of his unit who were serving with him at the relevant times. Mr Griffiths drew to the Tribunal’s attention the difficulty of dealing with issues where there was a lack of records and where events relied upon had occurred some 38 years ago. In this regard Mr Griffiths in his written submissions stated:
“The Tribunal, in Gorton v Repatriation Commission [2003] AATA 89 (31 January, 2003) correctly noted, as did Ryan J in Dunlop v Repatriation Commission [2002] FCA 1400, that the Full Court of the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 decided that when dealing with issues where there was some difficulty with the records:
‘…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 s119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with the law:..
In the decision of Gorton (supra), there were gaps present in the material. However, the Tribunal concluded that ‘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.’ Indeed, it is noteworthy that the report of Colonel Church of 19th September, 2002 (exhibit R1) was revisited and revised due to glaring errors not three weeks later, 5th October, 2002 (exhibit R2).
The applicant submits with respect, that with all resources open to Writeway Research Services, the initial report of Colonel Church was materially incorrect and flawed. It was all but conceded by Colonel Church during cross examination that incidents ‘could’ occur as they are recounted, but through no fault of the Veteran, not recorded correctly or indeed at all.”
62. It was submitted that on all of the evidence before it, the Tribunal would have little difficulty in being not satisfied beyond reasonable doubt that the Merlimau incident and the GG incident, as described by the applicant, did not take place and that these events resulted in the applicant experiencing a severe stressor within the meaning of that term in the relevant SoP.
63. Furthermore, it was submitted that on the evidence before it, the Tribunal would be reasonably satisfied that the applicant meets all of the criteria for a diagnosis of PTSD and that the applicant’s PTSD was war-caused.
64. Mr Smith for the respondent submitted that the applicant did not experience a severe stressor during his service in Malaysia/Borneo. It was submitted, with respect to the Merlimau incident, and to the Borneo incidents, that while individual aspects of the applicant’s accounts were plausible, collectively they did not add up to a plausible story.
65. In support of this contention Mr Smith highlighted what he saw as significant inconsistencies and contradictions in the key elements of the applicant’s accounts of the alleged stressful events. And in conclusion stated:
“There are considerable contradictions in the applicant’s account, and inconsistencies with the records, and these are not trivial, but involve key elements of the contention. Individual elements, while unlikely, are not impossible.. However, in a sequence of unlikely elements, the individual low probabilities are compounded until eventually they become tenuous. As pointed out in paragraph 1, the overall contention is implausible. Nor can a reasonable hypothesis be salvaged by determining that a particular item cannot be ruled out. There is a broad pattern of unreliability, which undermines the entire contention.
Finally, Dr Rosser, in his oral evidence, reported that, although the applicant’s mental state has improved, he still has a long way to go. As late as September 2002 he was reported to be still unable to work (exhibit A3). Yet, at hearing, he was in the dock for a long time, describing combat and atrocity in a relatively calm manner. This is not consistent with a man traumatised by the events in question.”
Consideration
66. In Repatriation Commission v Deledio (1998) 49 ALD 193, the Federal Court of Australia summarised the approach to be taken by the Tribunal in cases such as the present in which section 120A applies:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” [Emphasis added]
67. In this case it is common ground that the applicant suffers from PTSD and, in view of this and on the material before it, the Tribunal so finds.
68. After consideration of all of the material before it, the Tribunal is satisfied that the material points to an hypothesis as contended by the applicant and as set out in paragraph 8 above. As has already been indicated there is no dispute between the parties and the Tribunal accepts that there is in force a relevant SoP determined by the RMA, namely Instrument No 3 of 1999 (as amended by Instrument 54 of 1999).
69. Turning then to the third step as set out in Deledio’s case.
70. Assuming that either or both of the two events relied upon by the applicant occurred, namely the applicant coming under enemy fire during Operation FLOWER and the applicant witnessing a Ghurkha cut off the head of a captured Indonesian, and assuming that the applicant’s reaction to the events were as he stated, the Tribunal is of the opinion that the raised hypothesis is consistent with the template to be found in the relevant SoP with respect to a diagnosis of PTSD and satisfying factor 5(a), namely the applicant experiencing a service related severe stressor prior to the clinical onset of PTSD. The crucial question then is whether the Tribunal is not satisfied, beyond reasonable doubt, that either one or both of the two events referred to above did not occur.
71. Turning first to the Borneo incidents.
72. The applicant is quite clear that he did undertake some patrolling with 2 Para in the capacity of Bren gunner and two of his fellow gunners who served with him in Borneo have stated that this was so.
73. Major Tilbrook, Writeway Research Service, is of the view that the applicant did not undertake patrols with 2 Para and in so concluding relied on official records and to some extent the opinion of then Captain Quinn and then Sergeant Button. Captain Quinn was one of the Battery’s forward observation officers deployed at Kuching and Sergeant Button was only in GG for a relatively short period (WO 2 Ovenden (now deceased) being in charge at GG) and as such their opinions about what took place at GG are of limited assistance.
74. The Tribunal notes that the records relied upon do not record any 102 Fd Bty soldiers being on patrol with 2 Para and in so noting the Tribunal also is mindful that the records are not free of inconsistencies (as demonstrated by the 102 Fd Bty reporting of the 2 Para ambush on 14 June 1965 being materially different to that of the reporting of 2 Para). Nor can it be assumed that all events would have been officially recorded.
75. On all of the material before it, the Tribunal is not satisfied, beyond reasonable doubt, that the applicant did not engage in patrolling duties with 2 Para.
76. That being so, the next question is whether the applicant experienced an event while on patrol with 2 Para as he has described.
77. There is no corroborating evidence to support the applicant’s account of events and the Tribunal is troubled by the significant inconsistencies in his evidence.
78. The event described so vividly by the applicant cannot be found in the official records. The applicant says he cannot remember the date and that he has been unable to connect his experiences to any of the recorded events. Initially, having read the records, he suggested that the recorded 2 Para ambush on 14 June 1965 was relevant, however he has subsequently withdrawn this suggestion.
79. A further inconsistency arises in the applicant’s description of the enemy action. He initially described it as an enemy ambush which he subsequently retracted saying he really meant an enemy contact. He also told the Tribunal that the patrol centred around protecting a force of Ghurkhas cutting a helicopter LZ/DZ, that the patrol was inserted by helicopter and that on conclusion of the contact the Para element (including himself) was extracted by helicopter. Yet, in one of his descriptions of the action, he records “walking into an ambush” and he apparently told the VRB that the patrol began walking out through the jungle with the Ghurkhas travelling in front when they were ambushed from a right forward higher position.
80. The Tribunal is satisfied that the only recorded 2 Para actions relevant to the applicant’s tour of duty in Borneo are as follows:
(a)14 June 1965 – a 2 Para ambush accidentally sprung and resulting in one enemy WIA (KIA?) with no evidence of artillery support being called for and with one 2 Para casualty from an accidental discharge at the forward base area. (The Tribunal notes that the 102 Fd Bty War Diary records five enemy KIA and that this is an incorrect report).
(b)24 June 1965 – 2 Para ambush of 100 enemy with twelve enemy KIA, no 2 Para casualties and artillery fire called for.
(The Tribunal notes that Major Tilbrook records patrols from 1/6 Ghurka Regiment ambushing a party of Indonesians in the vicinity of TEBADU on 29 May 1965 resulting in four enemy KIA and one WIA; and that 2 Para was involved with 3 RAR in ambush action on 12 and 15 June 1965 with large numbers of enemy KIA. However, none of these actions involved any of the members of 102 Fd Bty).
81. The Tribunal accepts the respondent’s submission that in every recorded case the action resulted from an ambush set up by Commonwealth Forces not from Commonwealth Forces unintentionally running into Indonesian Forces and that it is improbable that members of 2 Para and 1/6 Ghurkha Regiment would join up as claimed by the applicant given the dispersed nature of the two units.
82. The applicant’s account of the 2 Para patrol is further called into question by his own evidence that it was after seeing the claimed atrocity that he tried to commit suicide by shooting himself with a Bren gun, ultimately being charged and found guilty of accidental discharge of his rifle on the 14 May 1965. Further, it was the applicant’s evidence that he was only charged once for an accidental discharge and this is supported by the other material before the Tribunal. The Tribunal does not accept the applicant’s submission that Central Army Records have wrongly recorded the date of this event.
83. On all of the material before it, the Tribunal has concluded that the applicant was only involved in one accidental discharge of a weapon on 14 May 1965 as recorded by Caro, and that Mr Froben’s memory of such an event in the latter part of June is not correct. Furthermore, the Tribunal is mindful that the applicant has claimed he attempted to take his own life after being upset by the events that occurred during the 2 Para patrol action and that the records show no relevant action, such an action having had to occur within the period after the applicant deplaned in Kuching on 3 May 1965, then deployed to GG, and accidentally discharged his rifle on the 14 May 1965.
84. Turning then to the claimed atrocity. In his written statement dated 29 December 2000 the applicant claimed that the Ghurkha decapitated the Indonesian prisoner using a Ghurkha knife (Kukri). Both Captain Quinn and Colonel Church, based on their experience serving with Ghurkha troops at the time said that the Ghurkha Kukri was a ceremonial weapon and was not carried by Ghurka troops on operations, rather they carried machettes (bush knives), principally for clearing jungle and vegetation. In his oral evidence, however, the applicant said he could not remember the type of knife used nor could he remember what was done with the body, the head, or any of the enemy KIA.
85. Furthermore the Tribunal is mindful that there has been no report or anecdotal recollections put before it to support the applicant’s account of the atrocity and the Tribunal finds this very difficult to accept if the atrocity actually took place, given the close nature of the contact activities, the presence of British troops with their own command structure, the professionalism and discipline normally displayed by Ghurkha troops and the fact that the applicant on his own evidence reported the matter to his detachment commander WO2 Ovenden.
86. Taking all of the above matters into consideration and on all of the material before it the Tribunal is not satisfied, beyond reasonable doubt, that the applicant was involved in an activity with 2 Para regiment and Ghurkha troops as he has claimed. The Tribunal places no weight on the press cutting from a British newspaper recording the death of Dr Harland Rees (Exhibit A8), in which it is stated that “he witnessed a Ghurkha slice the head off a Japanese POW who had been rash enough to spit at an officer”. The incident referred to is anecdotal at best and refers to World War II, some twenty years prior to the claimed incident.
87. Such a finding brings into question the credit of the applicant. The Tribunal accepts the applicant’s submission that the applicant’s responses to questions put to him were frank. However, the Tribunal has some difficulty in accepting the applicant’s submission that his answers appeared to accord with his best recollection of events canvassed in the evidence. Clearly the applicant’s recollection of events which he claims to have been extremely stressful is not supported or corroborated by official Army records or the recollections of Officers and Senior NCOs serving with the applicant at the time. The inconsistencies in his evidence, as indicated above, are such that it cannot be said the applicant is a good historian nor can it be said that the applicant, for whatever reason, has not changed his evidence as his case has progressed.
88. With respect to the Merlimau incident, again there are significant inconsistencies in the applicant’s evidence which are of concern to the Tribunal.
89. A major concern is that the applicant initially claimed he suffered war-caused PTSD based on constant contacts with enemy forces during his service in Malaysia/Borneo and fear of being killed or injured. In support of his claim the applicant initially said that the Merlimau incident (put the fear of death into me) but made no mention of personally coming under fire. It was not until the second hearing before the VRB that this became an issue. Prior to this the applicant had not specifically raised the Merlimau firing incident to his advocate. Given that the applicant has demonstrated no compunction in relating a number of other incidents which he considered were the cause of his problems, the Tribunal has some difficulty in accepting Dr Rosser’s opinion that he was not surprised that the applicant did not raise the firing incident with him until June 2001, some seven months after his initial consultation.
90. The Tribunal notes the respondent’s submission that the implications of this are that if the applicant did in fact come under fire, it was not something that had impressed itself deeply and deleteriously on to his mind.
91. The applicant in his oral evidence clearly recalled coming under fire and this was supported by two members of 102 Fd Bty who were in the same section as the applicant and one of whom gave evidence by telephone. These recollections are contrary to the recollections of a number of officers who were involved in Operation FLOWER and there is no official record of any nature which supports the applicant’s claim that his section came under enemy fire during Operation FLOWER.
92. The applicant did not know any details of the configuration of the overall cordon of which he was part, including any supporting sections or any command and control arrangements. Colonel Church was able to give the Tribunal a reasonable description of how infantry might be deployed in the cordon (but not artillery) and to offer expert opinion as to hearing the “sounds of battle” and the importance of overall reporting and reaction to any enemy fire in a cordon operation designed to contain and destroy or capture the enemy. Colonel Church accepted that it was possible that operational events might not be reported or might be reported and not recorded. However based on his wide military experience, his discussion with battery officers deployed on Operation FLOWER and his own knowledge of the operation (as Brigade Major), he expressed the opinion that any enemy fire would have been known about and acted on and that in Operation FLOWER no own troops took enemy fire.
93. The Tribunal is mindful of the application of section 119 of the Act and the submissions made by the applicant in this regard and with respect to the errors made by Colonel Church in his first report about the Merlimau incident. Clearly the errors were not insignificant. In making this comment the Tribunal is not criticising or discounting Colonel Church’s opinion, rather the Tribunal is highlighting the difficulties faced in accurately reporting events that occurred a long time ago and where there are difficulties in finding relevant records.
94. In this case the applicant has two witnesses who corroborated his account of being under enemy fire and while there are contrary views it cannot be said that the material before the Tribunal does not point to the possibility of such an event.
95. On all of the material before it and taking into account the Tribunal’s earlier comments about the credit of the applicant the Tribunal is not satisfied, beyond reasonable doubt, that the applicant did not come under enemy fire during Operation FLOWER.
96. This being so, the next question before the Tribunal is whether the applicant experienced a severe stressor within the meaning of that term and the relevant SoP.
97. The respondent has made much of the applicant not raising the matter of coming under enemy fire until well after he made his initial claim and initially saw Dr Rosser. The applicant had difficulty in explaining this apart from saying his more recent experiences in Borneo took precedence when he was recalling stressful events. Dr Rosser, when questioned about the delay, said he was not surprised there had been a delay, as was often the case in matters such as this, and he reinforced his opinion that the Merlimau incident, as described by the applicant, played a significant part in the applicant developing PTSD (within the terms of Criteria A of the relevant SoP).
98. In the light of Dr Rosser’s opinion and after consideration of all of the material before it, the Tribunal finds that the applicant suffered a service related severe stressor within the meaning of that term in Instrument 3 of 1999 (as amended by Instrument 54 of 1999).
99. On all of the material before it and for the reasons given above the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining the applicant’s suffers from war-caused PTSD.
100. The Tribunal therefore sets aside the decision under review and in substitution therefor determines that Wayne MacArthur Anderson suffers from war-cause PTSD and remits the matter to the respondent for assessment of the rate of pension payable to the applicant on and from 12 September 2000.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 24 January 2003
Date of Decision 28 March 2003
Counsel for the Applicant Mr Griffiths
Solicitor for the Applicant Sciacca’s Lawyers
For the Respondent Mr Smith, Departmental Advocate
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