Bean and Repatriation Commission
[2007] AATA 1193
•30 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1193
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600258
VETERANS' APPEALS DIVISION ) Re MAXWELL BEAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Dr G Maynard, Member Date30 March 2007
PlaceBrisbane
Decision The Tribunal:
(a) sets aside the decision of the respondent made on 27 May 2005 that post traumatic stress disorder was not related to the applicant’s operational service;
(b) substitutes a decision, with a date of effect of 7 March 2004, that the applicant’s post traumatic stress disorder is war-caused;
(c) with the consent of the parties, remits to the respondent for reconsideration that part of the decision of 27 May 2005 that refused the claim for pension at the special rate and the intermediate rate.
...............Signed...........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability support pension – post traumatic stress disorder – alcohol abuse – no diagnosis of alcohol abuse – exposed to traumatic event required for diagnosis of post traumatic stress disorder – hypothesis connecting post traumatic stress disorder with operational service – hypothesis is reasonable – bus trip equates to experiencing a severe stressor – anticipation of enemy action not actuality of it – risk or threat of death or serious injury reasonable not fanciful – not satisfied beyond reasonable doubt that post traumatic stress disorder was not war caused – post traumatic stress disorder is a war caused condition – decision set aside with regards to post traumatic stress disorder as war caused – matter remitted to respondent to reconsider claim for disability support pension at special rate or intermediate rate.
Veterans’ Entitlements Act 1986 - s 120(4)
Administrative Appeals Tribunal Act 1975 – s42D
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission. (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 134 FCR 392
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
30 March 2007 Deputy President P E Hack SC and Dr G Maynard, Member Introduction
1.The applicant, Mr Maxwell Bean, joined the Royal Australian Navy in January 1958 when he was 18 years of age. He served in the Navy thereafter for 22 years. His service in the Navy included a number of periods of “operational service”, as that term is used in the Veterans’ Entitlements Act 1986 (“the VEA”).
2.The issues that we must decide are whether the applicant suffers from post traumatic stress disorder and/or alcohol abuse and, if he suffers from either or both of these conditions, whether the conditions are “war-caused”, again, as that term is used in the VEA.
3.Part of the decision that was the subject matter of these proceedings concerned the applicant’s entitlement to a disability pension at the special rate or the intermediate rate. However the parties agreed, in the course of the hearing, that we should not decide that issue but that that part of the respondent’s decision should be remitted to the respondent for reconsideration in accordance with s 42D of the Administrative Appeals Tribunal Act 1975.
The Proper Diagnosis
4.The first issue is that of diagnosis. In considering that issue we are obliged to apply the standard of proof prescribed by s 120(4) of the VEA, that is, to decide the matter to our reasonable satisfaction[1]. We have the benefit of reports and evidence from two psychiatrists – Dr Ashim Majumdar and Dr Peter Mulholland.
[1] See Repatriation Commission v Budworth (2001) 116 FCR 200, 204-5 at par [15].
5.Dr Majumdar first saw the applicant in July 2004. He has seen the applicant for the purposes of treatment on some 18 occasions since then. Dr Majumdar’s opinion was that the applicant suffered from post traumatic stress disorder due to the effects of six stressors as follows:-
(a)an incident in June/July 1960 when the applicant was serving on HMAS VENDETTA when it became involved in an incident in the Formosa Straits where fishermen’s bodies were brought aboard HMAS VENDETTA;
(b)an incident in late January 1963, whilst a crew member of HMAS QUIBERON, described in the evidence as “the bus trip”;
(c)an incident shortly thereafter where the applicant believed he came under fire as HMAS QUIBERON sailed up the Mekong River;
(d)the threatening conditions on arrival at the wharf at Saigon at the conclusion of the journey in paragraph (c);
(e)an event in 1964, whilst aboard HMAS SYDNEY, where the applicant claimed to have believed that the vessel might be attacked by Indonesian patrol boats; and
(f)the collision in 1969 between HMAS MELBOURNE and the US vessel FRANK E EVANS.
It is common ground that the first and last of these incidents did not occur during any period of operational service but that the remaining incidents did.
6.No diagnosis of alcohol abuse was made by Dr Majumdar.
7.The applicant was seen by Dr Mulholland on 11 October 2006 for the purpose of providing a report to the respondent. Dr Mulholland was of the view that the applicant had the symptoms of post traumatic stress disorder but had some reservations about making a clinical diagnosis because of concerns that he had regarding the severity of the “traumatic event” which the applicant claims to have experienced.
8.In that regard we observe that, unusually for psychiatric disorders, post traumatic stress disorder requires that there be an event of a particular significance. According to paragraph 309.81 of the Diagnosis and Statistical Manual of Mental Disorders (Fourth Edition) published by the American Psychiatric Association, what is required by way of the “event” is that:
“The person has been exposed to a traumatic event in which both of the following were present:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others;
(ii)the person’s response involved intense fear, helplessness or horror …”
9.Dr Mulholland’s reservations are expressed in this passage from his report:
“The main incident is the so called ‘bus trip’ incident in 1963 in which nothing actually happened however rightly or wrongly he described himself as being under threat and was intensely fearful.”
10.On the basis of the psychiatric evidence we are satisfied that the applicant suffers from post traumatic stress disorder. We reach that conclusion on the basis of the medical evidence and our own views, discussed below, about the severity of the “bus trip” as a traumatic event of the requisite character. In this regard we adopt the concession made by the respondent that the applicant was properly diagnosed as having post traumatic stress disorder.
11.We are, however, not satisfied that the applicant has the condition of alcohol abuse. As we have observed Dr Majumdar did not diagnose it and Dr Mulholland described the condition as
“chronic alcohol abuse which has been in remission for the past 3 years.”
It is also pertinent to note that the applicant has never claimed to be afflicted by alcohol abuse.
12.The matter of alcohol abuse was not the subject of any attention at the hearing however the evidence before us does not demonstrate any of the diagnostic criteria. We accept, of course, that it is not our task to undertake ourselves the task of diagnosis but the absence of evidence of the diagnostic criteria leads us to more readily accept the view of the treating psychiatrist, Dr Majumdar, who has not diagnosed any alcohol-related disorders.
A War Caused Condition
13.There is no dispute that the applicant rendered operational service and thus the question of whether his post traumatic stress disorder is war-caused is to be decided by reference to the four step process identified in Repatriation Commission v Deledio[2].
[2] (1998) 83 FCR 82 at 97-8.
14.The first step requires us to consider all of the material before us and to determine whether that material points to an hypothesis connecting the post traumatic stress disorder with the operational service rendered by the applicant. The hypothesis advanced on his behalf was as follows:
(a)the applicant had rendered operational service, and the period of service in Vietnam between 27 January 1963 to 3 February 1963 was particularly relied upon;
(b)during that period of operational service the applicant was in a hostile environment in which he experienced three potentially threatening events; the “bus trip”, the incident in the Mekong River and the threatening conditions of Saigon; and
(c)the applicant demonstrated an altered mental state upon his return to Australia after this trip.
15.In our view the material before us points to such an hypothesis.
16.There is a Statement of Principles for post traumatic stress disorder, Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999, and accordingly the second step as outlined in Deledio is satisfied.
17.The third Deledio step requires us to form an opinion whether the hypothesis relied upon by the applicant is a reasonable one; that is, whether the hypothesis fits, or is consistent with, the template found in the relevant Statement of Principles[3]. We are not required to find facts at this stage, merely to consider whether the material before us supports a reasonable hypothesis.
[3] Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999.
18.Paragraph 5 of the Statement of Principles for post traumatic stress disorder sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting that condition with the circumstances of service. Relevantly for present purposes the factor in paragraph (a) is:
“(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.”
19.The evidence here is that the applicant developed symptoms of post traumatic stress disorder for the first time after the January/February 1963 Vietnam voyage so the temporal element of paragraph (a) is satisfied.
20.The expression “experiencing a severe stressor” is defined by the Statement of Principles as meaning that 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. Various events are nominated as events that qualify as severe stressors in the setting of service in the Defence Forces. They include, relevantly, threat of serious injury or death.
21.We turn then to a consideration of the particular events relied upon by the applicant. On the view that we take of the matter it is sufficient for us to consider only the “bus trip” of January 1963.
22.According to the applicant this incident occurred on 30 January 1963 when HMAS QUIBERON was berthed off Nha Trang in South Vietnam. The applicant volunteered to go on what he understood was to be a trip by bus to visit a training camp of the Army of the Republic of Vietnam at Duc My, some 30 miles from Nha Trang. His expectation was of a pleasant trip, by bus, through the countryside followed by refreshments. There was, as it turned out, no bus. Instead the 20 volunteers (and another 20 from another vessel) were loaded into the backs of open trucks. In addition, each sailor was provided with a rifle with one bullet in the breach because, as it was explained to them, the vehicles involved were going to be traversing territory controlled by the Viet Cong. The trucks were escorted by ARVN soldiers in jeeps with mounted machine guns.
23.
According to the applicant he found the experience of driving through the jungle in these circumstances terrifying and he was even “more terrified”
on the return journey. He feared for his life, he said, because he kept imagining being fired upon from the nearby jungle as the trucks and escorts drove to and from Duc My.
24.The case advanced on behalf of the respondent was that the third Deledio step could not be satisfied as the hypothesis advanced by the applicant was not reasonable. That was so, it was said, because the incident did not involve actual or threat of death or serious injury or a threat to the person’s or other person’s physical integrity. Reliance was placed upon the decision of the Federal Court in Stoddart v Repatriation Commission[4] where Mansfield J said:
“In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
[4] (2003) 197 ALR 283 at par [55].
25.What his Honour said in that case on the point was endorsed by the Full Court in an appeal from his Honour’s decision[5] and in the earlier decision of Woodward v Repatriation Commission[6].
[5] Repatriation Commission v Stoddart (2003) 134 FCR 392.
[6] (2003) 131 FCR 473.
26.It may be accepted, as the respondent contends, that the applicant at this time had had some five years of service, that there was no contact with the enemy and no direct evidence that the enemy were actually in the area. But, as against those matters, the applicant was a sailor whose working life was generally spent in the engine room. He had very little familiarity with rifles, his involvement being limited to his initial training many years earlier. He was, in that regard, to be contrasted with, for example, a Regular Army soldier who might be expected to have a much greater familiarity with rifles. As it seems to us, the absence of direct contact with the enemy does not diminish the threat of such contact. The applicant’s case is based upon the anticipation of enemy action, not the actuality of it. The applicant knew that the threat was sufficiently real as to require all participants to be armed and to require heavily armed escorts. Furthermore the convoy was passing through jungle country from where an attack could come without warning.
27.These circumstances are, in our view, capable of reasonably conveying to a person in the position of the applicant that there was a real risk, not a fanciful risk, of his death or of serious injury to him from an ambush. And, on the applicant’s case he was terrified for the duration of the journey and on the return trip.
28.Thus, in our view, the third Deledio step is satisfied.
29.It is necessary to go to the final Deledio step and determine whether we are satisfied beyond reasonable doubt that the applicant’s post traumatic stress disorder was not war-caused.
30.There is considerable reason to doubt the accuracy of much of what is said by the applicant and, to some extent, the evidence of his wife. We do not suggest that either of them are being deliberately untruthful; rather that some parts of their evidence amount to reconstruction after the event. That is, of course, not unusual in circumstances where the events in question occurred more than 40 years ago.
31.Some aspects of the evidence trouble us. The applicant’s claim, for example, that he believed that the Viet Cong were armed with AK-47 rifles is plainly ex post facto reconstruction with a view to adding a degree of colour to his account of the event. We are also concerned by the fact that when speaking to Dr Mulholland of the events that troubled him during his Navy service the applicant did not make any reference to the events in the Formosa Straights that he had earlier told Dr Majumdar had “terribly upset” him. Given that that event, if it occurred, did not occur during a period of active service it is open to us to conclude that the applicant consciously chose not to tell Dr Mulholland of the event to ensure that only events involving operational service were considered by Dr Mulholland. But that contention was not put to the applicant and it would be unfair to conclude that against him without him having an opportunity to comment on it.
32.Similarly, it seems curious that the applicant’s wife could say that it was after the applicant’s return from Vietnam in February 1963 (as distinct from the several other trips) that he had changed markedly however she was not challenged on this evidence and we accept it.
33.But despite the reservations that we have regarding the applicant’s evidence we regard the applicant as generally reliable in the account he gives of the “bus trip” event. We are not satisfied, to the requisite standard, that the hypothesis advanced has been excluded. It is unnecessary for us to reach any conclusions regarding the other matters relied upon as being “severe stressors”. We are, accordingly, of the view that it should be determined that the applicant’s condition of post traumatic stress disorder was war-caused. We would set aside the respondent’s decision of 27 May 2005 that determined to the contrary.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr G Maynard, Member
Signed: .......................Signed.............................................
Eleanor O’Gorman, AssociateDate of Hearing 15 March 2007
Date of Decision 30 March 2007
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Sciacca & Associates
Solicitor for the Respondent Departmental Advocate
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