Baker and Repatriation Commission

[2000] AATA 1085

DECISION AND REASONS FOR DECISION [2000] AATA 1085

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/85

VETERANS' APPEALS DIVISION        )          
           Re      JOHN ALEXANDER BAKER      
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE,  Member Captain E.T. Keane, RAN Rtd, Member           

Date15 November 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  ..............(Signed)................................
  D.W. MULLER
  SENIOR MEMBER
CATCHWORDS
 VETERANS' APPEALS – whether injuries are war-caused injuries 

REASONS FOR DECISION

15 November 2000 Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE,  Member Captain E.T. Keane, RAN Rtd, Member               

1. This is an application to review a decision that various head and orthopaedic injuries suffered by John Alexander Baker, the applicant, were not war-caused.

2. The applicant was injured on the morning of 6 August 1996, whilst riding his bicycle when he came into collision with a utility.  The applicant had been travelling along Endeavour Road, Bribie Island, and then made a right hand turn into Bank Street.  The utility had been travelling in the opposite direction to the applicant along Endeavour Street.  The applicant rode into the path of the utility, the driver of which had no chance of avoiding the collision with the applicant.

3. The northbound lanes of Endeavour Street are separated from the south bound lanes by a nature strip which is about 15 metres wide and filled with trees and shrubs.

4. Mr. Baker suffered serious head injuries and other orthopaedic injuries as a result of the collision.

5. From the evidence given by witnesses to the collision, the Tribunal is satisfied that at the time of the collision there were no cars other than the utility on the road in the vicinity of the intersection of Endeavour Street and Bank Street and that the weather was clear.

6. The applicant suffers from post traumatic stress disorder (PTSD) which has been accepted as war-caused due to his service in Korea in the 1950s.  An hypothesis was submitted on behalf of the applicant that on the morning in question, the applicant heard the engine of a car, which noise precipitated a "flash back" which caused him to believe that he was being chased by a tank.  It is claimed that he rode his bicycle in a panic around the corner to his right to get away from the tank and thereupon collided with the utility.  It is claimed that he lost his sense of judgment and control due to his PTSD.  Thus, it is claimed that the applicant's injuries are war-caused.

7. The applicant's wife gave evidence that her husband often suffered from "flash backs".  She said that they usually took the form of the applicant thinking that a tank from his Army days in Korea was trying to run him down.  The "flash backs" were triggered by large trucks.  She said that on the occasions when her husband had been so affected, she had seen him stop walking and assume a trance-like state until the moment passed.  If he was riding his bicycle or driving his car, he would pull over to the side of the road until the truck was well away from him.

8. The applicant gave evidence to the Tribunal that on the day in question, whilst riding his bike in Endeavour Road, he heard an engine.  He could not tell where it was coming from; he became confused.  He may have thought it was a tank but he remembers no more.  The applicant also gave evidence that he rode his bike every day of the week for about 50 kilometres and that the path that he took on the day of the collision was his normal daily path.  That is, that it was his normal pattern to ride along Endeavour Road and turn into Bank Street at that intersection.

9. The Tribunal had the benefit of hearing from two eye witnesses.  One who was a pedestrian at the time walking along Endeavour Street and the other the driver of the utility.  The pedestrian gave evidence that Mr. Baker passed him along Endeavour Street, looked back over his shoulder, moved to the right-hand side of the lane that he was travelling in, then looked straight ahead, went around the corner to his right and ran into the utility coming the other way.  The driver of the utility gave evidence that he was travelling at about 50 to 60 kilometres per hour along Endeavour Road approaching the intersection with Bank Street when the cyclist appeared in front of him.  He had no chance of avoiding him and ran into the cyclist, who was, of course, Mr. Baker.

10. The applicant was seen by Dr. Varghese in October 1996, that is about two months after the collision.  Dr. Varghese reported that Mr. Baker had no memory of the events 24 hours prior to the collision and for seven weeks after the collision.

11. The material placed before the Tribunal also shows that Mr. Baker had a serious hearing problem, so serious in fact that he could not hear a telephone in the same room as himself and that he had trouble hearing vehicles approaching him from behind when he was riding his bicycle.  That serious hearing problem was accepted as war-caused in 1990.

12. The Tribunal does not accept that Mr. Baker has any recollection of the accident nor of the events leading up to it.  The Tribunal doubts very much whether Mr. Baker would have heard a utility coming in the opposite direction on the other side of a nature strip and on the other side of an intersection, even if he had normal hearing, even less so with his limited capacity for hearing.  The Tribunal does not accept that Mr. Baker heard the utility coming in the opposite direction on the other side of the nature strip.

13. The applicant's PTSD attacks were usually triggered by the sound of large vehicles passing close by.  The Tribunal does not accept that Mr. Baker had a PTSD attack on the day in question.  There was no trigger for it.  It was really a case of an unfortunate accident.  He simply turned the corner as was his usual path.  He had been doing it for many mornings on many years and he simply did not see the utility coming the other way and they collided.

14. The Tribunal is satisfied beyond reasonable doubt that the collision and injuries suffered therefrom, were not related to the applicant's PTSD and that therefore, they were not war-caused.

15. The Tribunal affirms the decision under review.

    I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member;  Dr. K.P. Kennedy, OBE,  Member;  Captain E.T. Keane, RAN Rtd, Member.

    Signed:         .....................................................................................
               R. Hayes, Associate

    Date/s of Hearing  15 November 2000
    Date of Decision  15 November 2000
    Counsel for the Applicant        Mr. A. Harding
    Solicitor for the Applicant         Gilshenan and Luton
    Respondent  Mr. J. Kelly, Departmental Advocate