Border and Repatriation Commission
[2009] AATA 924
•30 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3829
VETERANS' APPEALS DIVISION ) Re ROGER BORDER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date30 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............
Senior Member
Veterans’ Affairs – Veterans’ Entitlements – operational service with Australian army – application of Statement of Principles – diagnosis of generalised anxiety disorder, obsessive personality traits and post traumatic stress disorder – hypothesis raised to connect service and disease/illness – Statement of Principles in existence – no reasonable hypothesis raised – satisfied beyond reasonable doubt that disease/illness not attributable to service – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 9, 85(2), 120(1), 120(3), 120(4), 120A, 196B(2)(d)
Administrative Appeals Tribunal Act 1975 (Cth), s 37
White v Repatriation Commission (2004) 39 AAR 67
Stoddart v Repatriation Commission (2003) 74 ALD 366
Repatriation Commission v Budworth (2001) 116 FCR 200
Makita v Sprowles (2001) 52 NSWLR 705
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1997) 45 ALD 205
Repatriation Commission v Bey (1997) 149 ALR 721
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Deledio (1998) 83 FCR 82
Mann and Repatriation Commission [2008] AATA 163
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
30 November 2009 Dr KS Levy RFD, Senior Member INTRODUCTION
1. The applicant, Roger Keith Border, made application for a condition of post traumatic stress disorder (“PTSD”) as a war-caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The claim was for medical treatment and pension for incapacity. The Repatriation Commission determined on 21 March 2007 that PTSD was not related to service. That decision was affirmed on review of the Veterans’ Review Board decision dated 5 June 2008.
2. It is noted that the basis of this claim is the same as an appeal by the applicant to the Administrative Appeals Tribunal in 1998 when the claim was refused. Since that time, there is further evidence of a psychiatric nature which is before this Tribunal. It is noted that at the time of filing the documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in the present claim, PTSD was not recognised as a service related disability for Mr Border. However, since filing the documents, the Department of Veterans’ Affairs has recognised this condition for Mr Border for the purposes of treatment only under s 85(2) of the Act. This matter was clarified in a telephone directions hearing on 12 November 2009 between the legal representatives for the parties.
ISSUE
3. The question for the Tribunal is whether the applicant has the condition of post traumatic stress disorder and whether it is war-caused within the terms of s 9 of the Act. This means that it must satisfy the criteria of the relevant Statements of Principles.
EVIDENCE
4. The applicant was 56 years of age at the date of application on 25 May 2006. He was 59 years of age at the date of the hearing. He enlisted with the Australian Regular Army on 20 March 1967 at the age of 17 and served for 20 years until 20 March 1987. During that period, he had operational service in Vietnam from 13 April 1971 to 28 October 1971. He had eligible defence service under the Act from 7 December 1972 until his date of discharge on 20 March 1987.
5. Oral evidence was received from Mr Border. Documentary evidence consisted of service documents, statements by the applicant, a statement by Mr Peter Farrelly[1] (who was a supervisor and witness to the events which are the basis of the claim), various medical reports, supplementary reports and statements.
[1] Folio 73 of the T documents.
6. This documentary evidence shows there are four events which Mr Border claims either individually or as a composite group have resulted in his PTSD. Briefly stated, the events are:
(1)A scorpion bite to his finger while unloading stores at a Q store (“the scorpion event”);
(2)Whilst not having fully recovered from the scorpion bite, he was required to perform the duties of a duty sergeant on the evening of the scorpion event. During that night, when radio contact was lost with a small party of soldiers at the perimeter wire of his compound, he was confused and turned on his torch. Other soldiers shouted at him turn off the light or they would “shoot” him (“the torch event”);
(3)While working at an ammunition depot, an Air Force sergeant humiliated him by shouting at him that he was mishandling rockets (“the rockets event”); and
(4)While he was absent from his depot overnight, his unit had moved from Nui Dat to Vung Tau (“the moved base event”).
7. As a consequence of his service in Vietnam, the applicant also claims that he was subsequently attacked by a colleague about an incident and his performance while serving in Vietnam.
8. In addition to the facts from the applicant’s statements and his oral evidence, he has given other factual evidence to the various professional advisors he has consulted since 1996 and which are contained within the evidence placed before the Tribunal. In relation to his early service history, the applicant informed Dr KR Calder‑Potts (psychiatrist) in 2002 that he was originally a storeman at Puckapunyal and after three years service he was posted to New Guinea as a temporary corporal. After nine months service there, he was promoted to acting Sergeant. He wrote to his father indicating that he thought he was not wanted or accepted in that posting and his father made a Ministerial enquiry following which the applicant was posted to Vietnam as a Sergeant. He thought the Captain of his unit there also did not accept him in his position and that he also had a personality clash with a staff sergeant. Subsequent events resulted in the applicant gaining a reputation of “dobbing in” another senior NCO, which became well known in the battalion. The four incidents which are the basis of this claim occurred during his service in Vietnam. After six months, he was posted back to Australia. He believed he was psychologically affected by these incidents and other subsequent events, for the remainder of his service in the Army.
9. Mr Border gave oral evidence and has provided a supplementary statement in September 2009 to try to explain more clearly some of the stressors, particularly the torch event. He also clarified in oral evidence that after the scorpion bite he quickly became debilitated. This is corroborated by the statement of Peter Farrelly who describes having examined Mr Border’s finger immediately after he complained of having been bitten by a scorpion. Mr Farrelly states that the scorpion was located and eradicated and Mr Border progressively became more adversely affected over a relatively short period of time. Mr Farrelly was his superior at that time and was a warrant officer. He monitored Mr Border’s condition and determined that his breathing, pulse and swelling of his arm and face indicated that he needed to convey Mr Border to the nearby military hospital at Nui Dat. Mr Farrelly took Mr Border to the hospital and ensured he was receiving treatment before returning to his unit. He advised that Mr Border was treated by the hospital staff and kept under observation for a number of hours and was allowed to return to his unit on the instruction that he should undertake sedentary duties only. Mr Farrelly said that Mr Border’s condition took some weeks to subside.
Medical Evidence
10. Mr Border has consulted Dr K Majumdar (psychiatrist) in 1996; Dr KR Calder-Potts (psychiatrist) in 2002; Dr PJ Tucker (psychiatrist and treating psychiatrist) from 1996 to present time and Mr V Mellors (psychologist). He has also seen Professor I Jones (psychiatrist) as an independent assessor on behalf of the Repatriation Commission in January 2009. Their evidence is as follows.
11. Dr Majumdar provided a report dated 11 October 1996. He describes the applicant’s account as having flashbacks of the Vietnam war. He described the applicant as not having any problems as a child and that his school performance was average.
12. Dr Calder-Potts provided a report dated 2 December 2002. His report indicates Mr Border told him he had a neglected childhood; that he was frequently getting into trouble; that he was no good at school; and that he had difficulty understanding; difficulty in forming relationships; and that he wasn’t socially integrated. Dr Calder-Potts described Mr Border as pre-morbidly shy and that he has had a lifetime difficulty in making and keeping friends, and that his problems in Vietnam “have tended to hound him in later life”. He said the applicant has always had difficulty dealing with his frustrations and that he is quite perfectionistic and is particularly persistent at things. Dr Calder-Potts said Mr Border is pre-morbidly a worrier.
13. Dr Tucker is the treating psychiatrist. There are six reports of Dr Tucker before the Tribunal. In his first report dated 29 November 2006, he said Mr Border meets the DSM IV criteria for stressors related to PTSD. He then said “because of this severe war service (Vietnam) caused chronic PTSD alone Roger will never be able to work at any kind of paid employment for more than eight hours per week”. He assessed him as having a GARP E & B score rating of 55 points. In his report one week later he states that Mr Border “should not attend an appointment with another psychiatrist as it will worsen his mental state, is not advised. It is medically contraindicated”. It seems that the Department of Veterans’ Affairs were seeking an independent assessment pertaining to an earlier claim. Dr Tucker reported three months later on 4 March 2007 that “because of severe chronic war-caused PTSD alone Roger will never be able to work at any kind of paid employment for more than eight hours per week”. The next report is dated 20 January 2009 where he advised that Mr Border’s alcohol abuse was in remission. His opinion was that Mr Border’s depression was part of the emotional disturbance of his PTSD which also includes anxiety, panic attacks, etc. He reiterated that “because of his war-caused severe chronic PTSD alone, Mr Border will never be able to work at any kind of paid employment for more than eight hours per week”. On 11 March 2009 Dr Tucker reported that the applicant’s alcohol abuse which was then in remission was a secondary feature of his PTSD. He disagreed with Professor Jones that alcohol abuse was a separate condition but said it was part of PTSD which was the common ground of the diagnosis of all of the treating professionals.
14. Mr Mellors, a psychologist, was also treating Mr Border. In his report of 13 May 2007 he diagnosed PTSD. In his report dated 2 December 2007, he indicated he had been treating Mr Border since 27 September 2006 and had seen him on 19 separate occasions. He referred to the psychiatric history, interviews he has had with the applicant, psychological testing and reported that Mr Border
presented with a PTSD condition that was completely related to his operational service in the Vietnam War. This opinion was based on scientific evidence, psychological theory and research data. When these scientific psychological principles are applied, it not only confirms that Roger Border’s PTSD is totally related to his war service in Vietnam but also confirms the etiology of his psychological condition/DSM IV diagnosis.
15. Mr Mellors stated that he had looked at the Statement of Principles for PTSD and that the applicant meets all three criteria. Considerable reference to psychological theories form the basis of Mr Mellors’ opinion.
16. Professor Jones was engaged by the Repatriation Commission to provide an independent report of recent origin. Professor Jones interviewed Mr Border. Mr Border’s wife also provided an account to Professor Jones. The report shows that Mr Border has had increasing periods of violence during sleep with anger during the day, starting in the 1990s. Mr Border married his wife in 1985. His wife described him as having a marked change in behaviour from the time that they were married. She described him “as a sweet man, caring and compassionate but slowly becoming more withdrawn and more angry”.
17. In the 1990s, depressive symptoms started and the applicant became intermittently angry for weeks. He would show signs of road rage and sometimes chase other vehicles.
18. Professor Jones described Mr Border’s mental state examination as being somebody who was angry initially with a high level of arousal. The applicant referred to flashbacks in Vietnam which were followed by some emotional symptoms which Professor Jones says were not simply a recollection of events. The most common symptom according to Professor Jones was Mr Border’s feelings of guilt for being a poor soldier and said this related specifically to what Professor Jones referred to as the radio tent incident (apparently the torch event).
19. Professor Jones referred to depression in the applicant and said that he frequently had fears that someone was going to shoot him and mentioned at one stage that he believed he was suddenly being followed by a tank and drove through a set of red traffic lights. Professor Jones also commented that he thought the applicant’s memory generally was particularly poor.
20. Professor Jones thought that the applicant’s alcohol abuse would account for the high level of anxiety and depressive symptoms together with his confusion and thought that this might also explain the applicant believing that he was being followed by a tank. Professor Jones concluded that the long delay between the Vietnam experience and his presentation, together with the high level of alcohol consumption, would suggest that the effects of alcohol were the most important cause of his disability. He thought (unlike Dr Tucker) that the alcohol abuse was a separate condition to PTSD.
21. Professor Jones noted that there were mixed views about the diagnosis and noted the differential diagnoses. Dr Calder-Potts had made a diagnosis of generalised anxiety disorder, chronic alcohol abuse and obsessional personality traits (with which Professor Jones agreed). Dr Calder-Potts did not diagnose PTSD. He noted also that Dr Tucker made a clear diagnosis of PTSD as did Dr Majumdar.
SUBMISSIONS
22. The applicant’s submissions concentrate on the scorpion event. The applicant says that his submission about the application of “life threatening” is not available to the respondent and submitted that the Tribunal was being asked to find contrary to the medical evidence that PTSD was not war-caused. I was referred particularly to Dr Tucker’s evidence in that regard. It was also submitted that there should be an objective and subjective test in accordance with White v Repatriation Commission.[2]
[2] (2004) 39 AAR 67.
23. Mr Stoner, for the respondent, argued that the test in White is not the appropriate test but that the test in Stoddart v Repatriation Commission[3] is the appropriate test. He submitted there were no issues of personal credit with the applicant and that while the Department had made a concession that it accepted Mr Border had PTSD (for the purposes of treatment), such a concession was a different matter to causation (which is at the heart of the questions to be answered by the Tribunal). Mr Stoner also submitted that the evidence of Dr Tucker should be given less weight than that of Professor Jones, who provided the most recent report and provided a fresh mind to all of the evidence and had not had any therapeutic considerations. Mr Stoner said that it was “unlikely that Dr Tucker would give an unsympathetic report”.
[3] (2003) 74 ALD 366 at 378-379 [50–51].
CONSIDERATION
24. I have considered all of the documentary evidence as well as the oral evidence presented by Mr Border and have taken account of the submissions of the legal representatives in reaching a determination in this matter.
25. In assessment of the evidence, the relevant law is as follows:
(a)Section 120(1) of the Act provides that the Tribunal “shall determine that the injury … that the disease … was war-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.
(b)Section 120(3) provides that in applying subsection (1), the Tribunal “shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining” that the injury or disease was war-caused if, “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 … with the circumstances of the particular service rendered by the person”.
(c)Section 120(4) makes clear that apart from ss 120(1) and (3) the Tribunal must determine all other matters “… to its reasonable satisfaction”.
(d)Where there is a Statement of Principles (“SoP”) issued by the Repatriation Medical Authority, s 120A provides that the reasonable hypothesis test must be assessed according to the SoP. Section 196B(2)(d) of the Act is the authority for the Repatriation Medical Authority to set out “the factors that must as a minimum exist … before it can be said that a reasonable hypothesis has been raised connecting the injury, disease … with the circumstances of that service”.
26. The statutory provisions in this case must be assessed in accordance with SoP No. 5 of 2008 (Post Traumatic Stress Disorder), in particular factor 6(a) thereof which defines the factor that must exist as a minimum: “experiencing a category 1A stressor before the clinical onset of Post Traumatic Stress Disorder”. Paragraph 9 of that SoP defines a “category 1A stressor” as meaning “experiencing a life threatening event …” Where an applicant is unsuccessful on consideration of a current SoP, there is an accrued right to have the matter reconsidered under the former SoP. In this case, that is SoP No. 3 of 1999 (as amended by SoP No. 54 of 1999). There, factor 5(a) is relevant, which requires “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder …” The term “experiencing a severe stressor” is defined to include “an event or events that involve actual or threat of death or serious injury …” The parties acknowledge that nothing turns on the distinction between the requirements, or in other words, it is not disputed that there is no point of differentiation between the factors in the two SoPs in this particular case.
Diagnosis
27. The following diagnoses have been provided:
(a)Alcohol abuse. Dr Tucker says this is secondary to PTSD; Professor Jones says that it is a separate condition and perhaps more significant than PTSD. Dr Majumdar also diagnosed alcohol abuse but did not differentiate it as a separate condition or as secondary to PTSD.
(b)General anxiety disorder. This was diagnosed by Dr Calder-Potts and Professor Jones. Professor Jones agrees that this is an appropriate diagnosis but does not believe that it accounts sufficiently for all of the symptoms which Mr Border displays.
(c)Obsessive personality traits. This is a personality disorder diagnosed by Dr Majumdar and Dr Calder-Potts. Professor Jones concurred with this diagnosis.
(d)PTSD. Dr Majumdar said he is “inclined to think” that Mr Border has PTSD. Dr Tucker makes this as a firm diagnosis. Professor Jones also agrees with the diagnosis but is not convinced that this is the overriding diagnosis appropriate for Mr Border.
28. The finding of a diagnosis is a finding of fact and a matter for the Tribunal. I have found Mr Mellors’ opinion not inconsistent with those of other specialist professionals but the theoretical basis was less useful for the Tribunal to rely upon as a matter of expert evidence. On the basis of the specialist medical evidence, the explanation provided by the psychiatrist reports, and taking account of the requirements of the considerations of admitting expert evidence,[4] I find that Mr Border suffers from generalised anxiety disorder, obsessive personality traits and PTSD. In respect of the latter condition I accept the evidence of Dr Tucker, the treating psychiatrist, that the evidence justifies that alcohol abuse is also a condition but that it is a secondary condition and subsidiary to PTSD.[5]
Clinical Onset
[4] Makita v Sprowles (2001) 52 NSWLR 705.
[5] Repatriation Commission v Budworth (2001) 116 FCR 200.
29. Clinical onset is a requirement of both SoP No. 5 of 2008 and SoP No. 3 of 1999. The relevant stressor must occur before the “clinical onset of PTSD”. This refers to a chronological point when a person is aware of a symptom and a doctor can make some judgment about when a disease is present. In this case, Mr Border first presented in 1996. On the basis of the evidence available, I find that clinical onset occurred in 1996.
Assessment of the evidence
30. This case involves a variety of psychiatric evidence covering a period of 13 years. All of that evidence must be considered to gain an understanding of the facts and the basis of the expert opinions.
31. In application of s 120(3) of the Act, evidence must exist which raises a reasonable hypothesis which causally connects the present condition and the operational service of an applicant.[6] Judicial authority emphasises that there must be more than evidence which raises only “a mere possibility”.[7] RD Nicholson J in Repatriation Commission v Bey[8] summarised the authorities and said that a hypothesis which is “fanciful, impossible, incredible or not tenable or too remote or too tenuous will not be a reasonable hypothesis”.[9] A hypothesis can be reasonable without being proved and in that sense may be theoretical,[10] but there must be some material which points to some fact or facts which support the hypothesis.[11] A “mere possibility” that a hypothesis advanced, for example by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. But a “mere possibility” of a hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility cannot qualify as a reasonable hypothesis. Any hypothesis raised will only be reasonable if it connects the disease with all of the essential elements prescribed by the SoP. In that regard, the Tribunal must be satisfied that the material raised a hypothesis of connection. Then, the Tribunal must consider whether it is satisfied beyond reasonable doubt whether the factual basis for the hypothesis does or does not exist.[12]
[6] Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.
[7] Cooke v Repatriation Commission (1997) 45 ALD 205.
[8] (1997) 149 ALR 721 at 733.
[9] East v Repatriation Commission (1987) 16 FCR 517.
[10] East v Repatriation Commission (1987) 16 FCR 517 at 531.
[11] Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
[12] Repatriation Commission v Hill (2002) 69 ALD 581 at 596, 599.
32. In assessing the claim, the four criteria or “steps” set out by the Full Federal Court in Repatriation Commission v Deledio[13] must be considered:
(1)Identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease;
(2) Ascertain whether a SoP is in existence;
(3) Determine whether the hypothesis is reasonable; and
(4)If the material “points to” a reasonable hypothesis, then the test in s 120(1) is applied and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
[13] (1998) 83 FCR 82 at 97.
33. There is a hypothesis raised between the facts presented by the applicant and his military service. Step 1 is therefore satisfied. Step 2 is satisfied in that an SoP has been declared which covers the situation raised by the applicant. In relation to Step 3, the evidence must point to the criteria in the SoP for it to be a reasonable hypothesis. I have already accepted that Mr Border has PTSD and a cluster of symptoms of long-standing which, according to Dr Calder-Potts, Dr Majumdar and Professor Jones, indicate generalised anxiety disorder and obsessive compulsive personality traits. The question for the Tribunal is whether the four incidents raised by the applicant explain and fall within the template raised in factor 6a of SoP No. 5 of 2008, i.e. “experiencing a life threatening event”.
“A life threatening event”
34. Mr Taylor submitted that White v Repatriation Commission is authority that there must be a subjective and objective test . Mr Stoner argues that Stoddart v Repatriation Commission is the appropriate authority for PTSD. I agree with Mr Stoner that Stoddart is the appropriate authority for a case involving PTSD However, Stoddart was decided before SoP No. 5 of 2008, which adopts slightly different language to the previous SoP (No. 3 of 1999). The current SoP refers to a “life threatening event”. Encarta dictionary English (UK) defines “life threatening” as “very serious; very dangerous or serious with a possibility of death as an outcome”. This was referred to by Senior Member Carstairs in Mann and Repatriation Commission[14] where she said that term should be interpreted “as having a subjective and objective component”. The term “life threatening event” must therefore refer to an event which either endangers or can be perceived to endanger the continued life of the person concerned and not merely be something which is an inconvenience or nuisance and unlikely to threaten a person’s life. In Stoddartv Repatriation Commission[15] the Federal Court held that in considering the term “experiencing a severe stressor” (defined similarly to “a life threatening event” in SoP No. 5 of 2008) there is not a requirement that there be an actual threat.
[14] [2008] AATA 163.
[15] (2003) 74 ALD 366.
35. While the Court in Stoddart held that there was no requirement that there be an actual threat, the test determined there was said to
cater … 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 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.[16]
[16] (2003) 74 ALD 366 at 379 [55].
36. Unlike the previous SoP in relation to PTSD, the current SoP does not provide examples or a meaning of “life threatening event”. It is part of the definition of “a category 1A stressor” which includes “being subject to a serious physical attack or assault including rape or sexual molestation; or being threatened with a weapon, being held captive, being kidnapped or being tortured”. In making an assessment at Step 3 of the Deledio process, “the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD”.[17] There are no issues of credit in relation to the applicant’s version of events and therefore I am satisfied that the events occurred. The real question is whether they are of such a magnitude that they could be regarded as falling within the general theme of the terms defined as meaning “a category 1A stressor”. This assessment is not based on any factual findings about evidence but merely an assessment of the hypothesis raised and whether it comes within the bounds of the meaning of a category 1A stressor.
[17] Mines v Repatriation Commission (2004) 86 ALD 62.
37. In relation to event 1 (the scorpion incident), it was clearly a frightening event for the applicant as outlined in the statement of Mr Farrelly. It is apparent that the symptoms developed quickly but the applicant was taken to hospital where he was given treatment. He was monitored and released the same day. While Mr Border suffered a degree of panic as the situation developed, he clearly was fearful for his future health and it took some weeks for all these symptoms to dissipate. Nevertheless, he was returned to duty immediately, albeit on light duties. This event was undoubtedly a serious event with the result of a heightened level of anxiety for the applicant. In assessing such an unusual event, the size of the threat is not to be gauged by the size of the weapon (for example a scorpion versus, say, a rifle) but by the likely psychological impact of the event. However, it does not seem to be of the same order as something that would result in the possibility of death. There is the possibility that he could have suffered a threat to his life had treatment not been available for a period of time. But viewed objectively in the circumstances described, even though Mr Border would have experienced extreme discomfort particularly in view of his personality, the risk of death or endangering the continued life of Mr Border does not seem to me to be an objective assessment of a reasonable person with full knowledge of the situation. As Mr Stoner pointed out, the test as applied in Stoddart dealt with a situation of a young sailor of 17 years of age whereas Mr Border was a sergeant with four years of experience in the Army and was not in a combat situation. I therefore regard this incident as very serious but not life threatening.
38. In relation to event 2, this occurred in the aftermath of the applicant being treated for the scorpion bite. He was returned to his unit. As a duty sergeant that evening, his soldiers were in a ‘stand-to’ position when, upon his switching on a torch at night, a soldier told him to turn off the torch or someone will “shoot” him. This incident must be viewed in context. As the duty sergeant in a group of men who were well trained and relied upon each other as serving soldiers, this comment was made as an isolated statement in the context of security role trained and subordinate soldiers calling out at night. This cannot objectively be regarded as a life threatening event. It was an event where he must have felt he was being ridiculed by his subordinate soldiers. It may well be that the soldiers had no knowledge of who used the torch as it was at night. They were not under fire although clearly Mr Border was not feeling well and was undoubtedly at a low point as he was still suffering from the fright of the scorpion bite. It was undoubtedly a sensitivity for Mr Border but it is not within the definition as a threat to life from an objective point of view...
39. In relation to event 3, a RAAF sergeant shouted at the applicant as he was mishandling rockets. That was undoubtedly humiliating and Mr Border said in evidence that he was concerned that he may have endangered his colleagues. He indicated that the RAAF sergeant was not particularly serious about his warning although he did not know that at the time. From the description by the applicant, it was an unpleasant experience but doesn’t reveal a life threatening event.
40. In relation to event 4, the applicant returned a day after leaving his unit and found the unit had moved. He got a ride with a US aircraft and while he felt confused or isolated, the evidence does not indicate he was stranded for any length of time, was not in enemy territory, unarmed or otherwise vulnerable. On the basis of the version of events portrayed, it does not fit within the degree of seriousness defined as “a life threatening event”.
41. The applicant’s case is that he has PTSD not from any one of the four events he raised but rather, as a composite of all of those events. What must be shown for him to succeed is a causal connection and not a temporal one.[18] As stated in Roncevich v Repatriation Commission,[19] when examining the meaning of causation and its application in the context of an injury or disease being “defence caused”, the Court said “the prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time”.[20] It seems to me that the factual evidence here (including the medical evidence) is a reflection of the process described in Roncevich. Mr Border suffers from PTSD which has a more complex explanation than being referrable to military service as a sole or dominant or contributory cause. The factual incidents must be looked at and the Tribunal must take account of “the whole of the evidence”. The incidents described either individually or collectively do not, in my opinion, amount to “experiencing a life threatening event” for the purposes of Step 3 of Deledio. The ultimate issue is whether the injury or disease was “one that ‘arose out of, or was attributable to’ the applicant’s service”.[21] The incidents seem to me to be a “mere possibility” but are “not tenable” based on the scenarios presented and the template set out in the relevant SoP. The applicant’s case therefore cannot sustain a reasonable hypothesis linking those events to Mr Border’s PTSD, which had its onset in 1996, twenty-five years after the stated incidents. Step 3 is therefore not satisfied.
[18] Repatriation Commission v Law (1981) 147 CLR 635 at 649.
[19] (2005) 222 CLR 115.
[20] Roncevich v Repatriation Commission (2005) 222 CLR 115 at 141-142 [82].
[21] Roncevich v Repatriation Commission (2005) 222 CLR 115 at 144 [93]
42. I therefore conclude that the decision under review must be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member
Signed: ..........[Sgd]................................................
Research AssociateDate of Hearing 7 October 2009
Date of Decision 30 November 2009
Counsel for the Applicant Mr M J Taylor
Solicitor for the Applicant Wallace Davies
Solicitor for the Respondent Mr J Stoner
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