Bastion and Repatriation Commission

Case [2002] AATA 679

DECISION AND REASONS FOR DECISION [2002] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1845

VETERANS' APPEALS DIVISION          )          
           Re      William Leslie Bastion    
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date12 August 2002

PlaceSydney

Decision      The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Bastion has a war-caused condition of post traumatic stress disorder with major depression and is qualified for Disability Pension for this condition with effect from and including 12 May 1999. 2. The Disability Pension for all of Mr Bastion's war-caused conditions is assessed at 90 per cent of the General Rate with effect from and including 12 May 1999. ………………………… Ms S M Bullock Presiding Member

CATCHWORDS
 VETERANS' AFFAIRS – Disability Pension – Operational Service – Reasonable Hypothesis Diagnosis – Post Traumatic Stress Disorder – Assessment – Special Rate

LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 24, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Deledio (1998) 49 ALD 193
O'Neil v Repatriation Commission (2001) 34 AAR 290
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119
Re Mulvany and Repatriation Commission (2000) 59 ALD 602
Re Repatriation Commission and Freeman (2000) 61 ALD 259
Repatriation Commission v Binding [1999] FCA 974
Re O'Leary and Repatriation Commission [2000] AATA 836
Dixon v Repatriation Commission (1999) 59 ALD 315
Forbes v Repatriation Commission (2000) 58 ALD 394
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

12 August 2002      Ms S M Bullock, Senior Member Dr M E C Thorpe, Member             

  1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr William Leslie Bastion, the Applicant, of a decision of the Repatriation Commission ("the Commission") made on 15 November 1999 (T2), which on review by the Veterans' Review Board ("the Board") on 22 November 2000 was varied by amending the diagnosis of "nervous condition" to "post traumatic stress disorder with major depression", and then affirmed the decision as varied (T17). The Board consented to the withdrawal of the application for review in relation to the conditions of hypertension, seborrheic dermatitis and alcohol abuse pursuant to subsection 155(1) of the Veterans' Entitlements Act 1986.

  2. A hearing was held before the Tribunal in Sydney on 4 December 2001. Mr Bastion provided oral evidence to the Tribunal as did Consultant Psychiatrist, Dr A Dinnen. Mr Bastion was represented by Mr N Dawson of Counsel. The Respondent, the Commission, was represented by Mr J Marsh, Senior Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T21) and the following…

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AGLC
Bastion and Repatriation Commission [2002] AATA 679
Case
[2002] AATA 679
Decision Date

CaseChat Overview and Summary

Bastion and Repatriation Commission involved a claim for a disability pension by Mr William Leslie Bastion, who served in the Air Force from 1956 to 1979. The dispute centred on whether Mr Bastion was entitled to a disability pension for Post Traumatic Stress Disorder (PTSD) arising from his service, particularly an incident in 1962 in Ubon, Malaya, where he was awakened and ordered to dig a trench under the threat of an imminent attack. The case was heard in the Administrative Appeals Tribunal (AAT).

The legal issues before the court were whether the Tribunal could reasonably conclude that Mr Bastion's PTSD was caused by the traumatic incident in Ubon and whether this condition met the criteria for a special rate under the Veterans' Entitlements Act 1986. The court needed to consider the evidence provided by Mr Bastion, including his statement to the Tribunal, and the historical records of the incident.

The Tribunal found that the Tribunal had correctly concluded that the PTSD experienced by Mr Bastion was reasonably attributable to the traumatic incident in Ubon. The Tribunal considered Mr Bastion's account, which was consistent with the historical records, and the lack of any other plausible cause for the PTSD. The Tribunal also found that the PTSD met the criteria for a special rate under the Act, given the severity and impact on Mr Bastion's life.

The final orders of the court were to affirm the decision of the Tribunal, granting Mr Bastion a disability pension for PTSD at the special rate. The court found that the Tribunal had properly assessed the evidence and applied the relevant legal principles in reaching its decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Statement of Principles considered relevant by the Tribunal and agreed to by the parties is Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder.EVIDENCE OF MR WILLIAM LESLIE BASTION Mr Bastion was born on 12 May 1938 in Sydney. He left school and undertook an apprenticeship as a fitter and machinist. Mr Bastion did not complete the apprenticeship and worked as a labourer for approximately 12 months. Mr Bastion provided a statement to the Tribunal dated 11 April 2001 (Exhibit A1) which he declared was true and correct. In 1956, Mr Bastion joined the Air Force and had a period of approximately 23 years of service, with an approximately 12 to 18 month break after the first 12 years. In the interim period between the two periods of service in the Air Force, Mr Bastion stated that he worked as a computer technician at IBM. Mr Bastion's initial training was as a radio technician, requiring him to service the electronics in the aeroplanes. In 1961, Mr Bastion was allotted for overseas service at Butterworth in Malaya. From there he went in 1962 to Ubon. Mr Bastion related to the Tribunal an incident which occurred on 20 June 1962 in Ubon. Mr Bastion remembered being awakened in the dark at approximately 3am. He was told to go to the armoury tent which was lit by a halogen lamp where he was issued with a Bren Gun and ammunition and directed to dig a trench. He was told bluntly that the camp was under imminent threat of attack and he should prepare himself. Mr Bastion told the Tribunal that he remembered being asked whether he wanted a Bren Gun or a rifle. He chose the Bren Gun because it had a rapid rate of fire and it was easier to provide a field of fire ahead of where he would be operating. It was when lined up outside the armoury tent that he first heard that the base was under threat of attack and that there had been radar signals indicating this. Mr Bastion explained that he was ordered by an officer to dig a trench. He dug the trench with a "trenching tool" which is a short, small shovel and he supposed that he obtained this from the armoury tent. Mr Bastion could not remember how big the trench was, but recalled that it did not take long to dig because the ground was very soft. Mr Bastion told the Tribunal that he was 24 years old at that time. He could not recall the proximity of the other men. There was no talking between the men. Mr Bastion stated that he could remember checking the ammunition bag while in the trench and checking the magazine to make sure that the ammunition was loaded properly. Mr Bastion denied the possibility that he was not in a trench, providing the evidence that two days after the incident, there was heavy rain and all the trenches filled up with water. Mr Bastion told the Tribunal that in the trench he was by himself and he was terrified. He thought he was going to be attacked. When the sun came up, he and the other men were directed to go to the "flight line" to prepare the aircraft for flying. The aircraft at that time were already armed with missiles and guns loaded. These circumstances made Mr Bastion think that this was not an exercise and confirmed his belief that the base was under threat of attack. Mr Bastion agreed that apart from the omission of details concerning the issue of arms and the digging of trenches, the account recorded in Mr Tilbrook's report of 12 August 2001 (Exhibit R3) at pages 10 and 11, accorded with his memory of events as noted in the Unit History Sheet from the RAAF Contingent in Ubon for June 1962. The history recorded by Mr Coulthard-Clark in Chapter 1 of the official history of "The RAAF in Vietnam" accorded more closely with Mr Bastion's recollection of events.

Decision

Reasons for decision

DR J DR J

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Ratio Decidendi

Legal Principle Established

Established by: DR J, DR J

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