Briggs and Repatriation Commission
[2006] AATA 347
•11 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 347
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/231
VETERANS' APPEALS DIVISION ) Re JEFFREY JAMES BRIGGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, Member
Dr D Weerasooriya, MemberDate11 April 2006
PlacePerth
Decision The Tribunal affirms the decision of the Veterans' Review Board dated 28 January 2004.
.......(sgd S D Hotop)..........
Deputy President
CATCHWORDS
VETERANS' AFFAIRS -veterans' entitlements - disability pension - applicant served in Australian Army from 1968 to 1970 - applicant rendered operational service in Vietnam from January 1969 to February 1970 - applicant suffers from post traumatic stress disorder ("PTSD") and irritable bowel syndrome ("IBS") - reasonable hypothesis raised by material before Tribunal connecting applicant's PTSD and IBS with circumstances of his operational service - Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant's PTSD and IBS war-caused - applicant's PTSD and IBS are not war-caused diseases - decision under review affirmed
Veterans' Entitlements Act 1986 (Cth) s 5D, s 9, s 120 and s 120A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
11 April 2006
Deputy President S D Hotop
Brigadier A G Warner, Member
Dr D Weerasooriya, MemberIntroduction
1. The applicant, who was born on 23 September 1947, enlisted in the Australian Army under the National Service Act on 1 May 1968 and was discharged on 28 May 1970.
2. The applicant rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”), in Vietnam from 5 January 1969 to 7 February 1970.
3. The applicant is presently in receipt of a disability pension under the VE Act, at the rate of 30% of the “general rate”, in respect of the following disabilities which have been accepted by the respondent as service-related:
· old dislocation right shoulder;
· bilateral sensorineural hearing loss.
4. The applicant has also sought to have the following disabilities accepted as war-caused diseases, within the meaning of the VE Act, namely:
· post traumatic stress disorder (”PTSD”);
· irritable bowel syndrome (“IBS”).
The respondent and the Veterans’ Review Board (“VRB”), however, have determined that each of those conditions is not a war-caused disease.
The Issues and the Tribunal’s Determination
5. The issues to be determined by the Tribunal are:
· whether the applicant suffers from PTSD and/or IBS; and, if so
· whether each of those conditions a is war-caused disease, within the meaning of s 9 of the VE Act.
6. For the reasons which follow, the Tribunal has determined that the applicant suffers from PTSD and IBS but that neither of those conditions is a war-caused disease, within the meaning of s 9 of the VE Act.
The Applicant’s Evidence
7. The applicant tendered in evidence his witness statement dated 14 June 2005 (Exhibit A1), and he also gave oral evidence
8. The contents of the applicant’s witness statement are as follows:
“…
8.I served 13 months as the reinforcement with 4 Battalion RAR and then with HQ6 ATF (sic) based at Nui Dat Vietnam as a cook.
9.…
10.Whilst I was based at Nui Dat I spent considerable time as a fire support basis.
11.4 RAR returned to Australia in May 1969 but I was transferred to Headquarters 1 ATF at Nui Dat and in addition to cooking duties I was engaged in day patrols with Headquarters Defensive Employment Platoon.
12.Prior to being sent to Vietnam I was a sociable person, even-tempered and never in fights.
13.Whilst in Vietnam I witnessed two particularly traumatic events.
14.The first was while I was with 4 RAR in a TAOR patrol overnight 3-4 kilometres out from Nui Dat at a listening post.
15.The patrol left in the afternoon and camped overnight at a listening post and return to Nui Dat the next day. I have previously described to Dr Woodall what happened and he has set this out in his report of 26 May 2003 …
16.The incident happened during the day. The section had been advancing with jungle on our right through low vegetation, with paddy fields on our left. I heard a shot about 25 metres away from me and saw the figure of a farmer collapse to the ground.
17.I witnessed the shooting directly and realised it was not an enemy soldier at the time of the shooting.
18.The incident where the farmer was shot was the second patrol I believe I had gone out on. There were 7 members including me. The incident occurred at about 10:00 o’clock when we were about one kilometre or more from Nui Dat. We were skirting some secondary jungle and came into a clearing close to land that had been cleared for farming.
19. I was third from the rear in single file formation when I heard the man two places in front of me call ‘contact left’ and fired the single shot. I thought that the farmer was holding a pole, but later heard from others that it was a hoe.
20.The shooting was not reported and the patrol was described as uneventful. I was told to ‘forget it, it happens’.
21.The practice was for all left out of battle personnel from each company to share responsibility for manning sentries on the perimeter of the base. In addition, we were rostered to man the TAOR patrols allotted to our company.
22.In respect of the second incident I was sharing a tent with two other soldiers, one of whom was Private Monk. I was in my bed under a mosquito net. I cannot recall if I had been sleeping, but I may have been.
23.Monk returned with three other soldiers, all of whom had been drinking. The third tent mate was not present.
24.Monk went to bed and left the other three sitting at a table in the centre of the tent. I was lying on my back and my bed was oriented so I could see the three men.
25.The three men were drinking and talking for about 20-30 minutes when an argument developed, with two taking one side against the other. One man had a rifle. He cocked it and pointed it at another man who was directed (sic) between that man and me. All the men stood up. The soldier at whom the rifle was pointed went quiet and walked out of the tent. The soldier who had pointed the rifle cocked the rifle again as he left the tent and ejected a round onto the floor, saying ‘you thought I was kidding’.
26.I pretended to be asleep as I was afraid the rifle would be turned on me accidentally and I was terrified. I was also fearful I would witness a murder and felt helpless.
27.Whilst in Vietnam I became a heavy drinker, requiring alcohol intoxication to get to sleep. Towards the end of my tour of duty I became increasingly irritable and got into a lot of fights in late 1969. Three days before my tour of duty was to end I was sentenced to 28 days in the lockup at Vung Tau for conduct to the prejudice of the Army, delaying my return to Australia.
28.There have been no further traumatic events subsequent to my service in Vietnam, however I suffer a range of reliving the incidents including vivid visual images which are intensely distressing. I have recurrent nightmares of trying to run away from enemy fire and being stuck and unable to move. I have brief flashbacks where I see the tent in which the rifle was being pointed and a feeling of being there. I have intense distress at being reminded of or asked about my Vietnam experiences. My palms sweat when I think about Vietnam.
29.I used to avoid thinking about Vietnam and used alcohol to attempt to avoid feeling distressed
30.Since the incident with the gun in the tent I have never slept on my side or stomach, but only on my back because I feel vulnerable in the other postures.
31.I lost interest in swimming, having been passionate about swimming in my youth, and I had a feeling of estrangement from others, with almost no contact with my family including my siblings. I felt I was the odd one out. I felt anger or nothing and a sense of a foreshortened future. I felt emotionally numb.
32.I have suffered from severe insomnia and irritability, poor concentration and inattention, forgetfulness and hypo-vigilance. I always sit with my back to the wall in public places. I have a very strong reaction to sudden unexpected loud noises.
33.My friends have told me that since I returned from Vietnam I have lost my sense of humour, am not outgoing and lacked enthusiasm.
34.Over the years I have become progressively withdrawn and developed a very hot temper. I snap over small incidents.
35.Subsequent to my Vietnam service I married in 1972, but my wife left me six years later because of my temper. I married again in 1983 and she left me after 20 months because of my moodiness and anger outbursts.
36.Since 1988 I have lived alone except for short periods with live-in girlfriends, but in each case they could not put up with my temper.
37.Following my service in Vietnam I became intolerant of paperwork and dealing with other people and was easily annoyed over various issues.
38.I worked in many jobs involving manual labour after Vietnam, but I suffered increasing irritable outbursts. In one place I assaulted a trainee for which I lost my job.
39.In the mid-80s I began attending the Vietnam Veterans Counselling Service. During the late 90s I have had increasing difficulties with the verbal aggression, depression, sitting at home weeping and this led me to attend a psychiatrist by phone contact with the Vietnam Veterans Counselling Service.
40. In mid-2000 I saw Dr Michael Woodall who diagnosed me with Post Traumatic Stress Disorder.
41.On entry into the Army I was a non-smoker and only an occasional social drinker.
42.I drank a lot in Vietnam because I could not get to sleep otherwise.
43.Subsequently I drank regularly at home and smoked cannabis.
44.I enjoyed working in remote areas so I could avoid people.
…
48.I have had a 30 year history of loose bowel motions with alternating constipation and diarrhoea. My gastrointestinal problems are precipitated by anxiety. I have been diagnosed with irritable bowel syndrome by Professor J K Olynyk and he believes that the stressful life events have contributed to my irritable bowel syndrome.
…”
9. In his oral evidence-in-chief the applicant elaborated upon the two incidents referred to in paras 14-26 of his witness statement as follows:
“Perhaps in your own words, I would ask you to recall to the Tribunal what you remember in relation to that? --- To them two incidences?
Well, yes, start first with the TAOR patrol? --- Yes, okay. I’d been in country about two months and the reason – I was a cook in the army, the reason I was out on a TAOR patrol was that the battalion was out and there was only a skeleton staff left back at the camp, at the main base at Nui Dat. And cooks and other people left back there were required to go out on – on the patrols to – to do them patrols that are normally done by the infantry men when they were in camp. So it was the second patrol I’d done with them, I think. We were out from the camp, I don’t know how far, it’s a fair walk, we go out in the afternoon on one day, camp overnight, then come back in the morning of the next day and the way back ---
Sorry, I didn’t mean to interrupt you but just before you go on, just how many people were on the patrol? – There’s – from memory, there was seven. Okay – yes that – that – the best of my memory there was seven of us, okay. On our way back we’d been – I don’t know how long we’d been walking back but there was an incident where we come in – it wasn’t a complete clearing but there was jungle on our right, we were sort of in – there’s jungle, well what I’d refer to as a scrub, it was sort of bushy stuff, a bit over head height and then what appeared to be clearing up there. There – there was a – some sort of a bank had been pushed up, it was like a levy bank or something. I assume behind it was rice paddies, there was a farmer – well, I - first I heard was, when we were come through that clearing we were walking through, there was a – there was a call of ‘contact left’ and I looked left and a – there was a shot and a farmer fell. I – I – or a civilian fell. He’d had something in a – in his hand but it – it didn’t look like a weapon to me and it turns out it wasn’t, it was a hoe or something like that. Okay, there was – when – when the ‘contact left’ was called we – we sort of squatted … and it was indicated by the guy in front of me to just stay there, just to stay down there, wait, and some of the men from the patrol in front went – not the bloke directly in front of me but further on, they went out to – to where the body was. Okay. There was no discussion there at that time. Anyway we were most probably there for about another 15 or 20 minutes and we went back to camp from there. I’ve seen my statement – or I’ve said why I was a kilometre out. In them days we were in – we were in the imperial measurements, we would have been a lot more than a kilometre out from camp, I would think, than what I said. When we got back to the camp and inside the wire the – we grouped up. While you’re coming through the jungle you’re not aware of it, you’re spread out, you’re not bunched up, you’re spread out and there’s no talking. When we got back into camp, inside the wire I – the – if I just add in here is that the battalion, 4 Battalion was ready to come home nearly at that time so the guys I had been out are all experienced, I was new – I was just new in camp, I went to the battalion as a reinforcement. We sort of – we – we grouped up in the camp and the person – I don’t know whether there’s one or two people in charge but one of the – what – what I would think was the person in charge said: well that was pretty incident free, that was a good patrol, it was incident free. And another guy, as they split up, another guy walked alongside me and said, words to the effect: don’t worry, these things happen, or, don’t let it get at you. Something to them – effect. I don’t remember the exact words. So I gathered at the time they knew I – I was concerned about what had happened. I didn’t like it, it really made me feel sick in the guts what happened. Okay, so that’s sort of – the basics of what happened on that patrol. Okay? Not long after that but before I come home and I was sent up to Headquarter Company.
Okay. Can I just take you back on a couple of things? --- Yes.
Do you remember roughly what time of day it happened? --- The – the time the incident happened was morning, my guess is it would be about mid morning, something around that time. The exact time I don’t know.
Okay. It has been suggested that by mid morning the patrol should have been back in? --- Yes.
Do you have any idea why that might not have been the case? --- I don’t know. I don’t know why that was. There was not much talk. I only did two patrols with 4R when I was there, when the guys were out and I don’t particularly remember what times – exact times we got back in. We always got back in before lunch but I don’t [know] why there’s discrepancies there.
Do you remember how far you might go out, walk away, out of the - - -? --- I don’t know, I would assume we would have maybe gone five miles, okay? I don’t know whether it would be that far but you’re going through jungle and it’s hard to judge, I was just following. The person in front has got a compass of course and mostly he knew where he was going anyway from other patrols but I would think we would have gone maybe five miles.
Okay. Now what time did you get up to come back? --- I don’t know. It would have been when it come light most probably, we got up. I remember we ate where we were before we come back, I remember that, and then come back, so I really don’t know what time we would have left.
So just, If I can understand the procedure is, that you get up at sun up or thereabouts? --- Yes.
You have something to eat and then head off? --- Yes. That was my experience on the patrols I went out on, yes.
Okay. All right. Well perhaps I can now take you to the second incident. If you go to page 3 of your report starting at paragraph 22? --- Yes.
Again , just in your own words, just explain your recollection of what happened then? --- Okay. I was in the lines and at the – the lines, the tent lines that we were in was mostly – was all cooks and administrative staff and that and then the – there – there was a mess hall and the boozer which were pretty big buildings and then the infantry guys at D and E platoon were on the other side of the camp. This night I was in bed. We got mosquito nets over the beds, we all had mosquito nets over the bed. I was in bed, I wasn’t asleep and Monk, one of the tent mates, brought back three guys that – at least two of them were D and E, I think, and the other one may have belonged in our lines and they were drinking there for a while. Monk went into bed and went to sleep and these other blokes, there’s three of them were left there drinking and an argument broke out and one of them that picked up the – picked up a SLR rifle and cocked it and pointed it at the odd bloke that they were arguing with. He was between me, my bed and the guy that was pointing the rifle at him. The rifle was pointing at me, pointing towards me anyway. I had a fear of the thing going off accidentally more than anything. And a – it quietened – things went quiet there for a while and the bloke they were arguing with or had the rifle pointed at him, he started to leave and then when he was leaving the person holding the rifle cocked the rifle and ejected a round. He said: you thought I was joking, didn’t you ? Anyway they – this bloke left the lines and then these other two left, I don’t know why, they knocked the light out in the tent before they left. I don’t know why that was but – and that was – that’s about the summary of that. And I don’t know whether - there was me, Monk and I’m not sure who else was in the tent with that – that that tent with us, we were swapped around a couple of times. I think Paul Lowe may have been the other tent mate, but he wasn’t in the tent at the time. Okay, the next day there was a few incidents and the next day I said something to the sergeant major but it never went further than that, I wouldn’t – I didn’t say any names there either. Yes, that’s about a summary of that.
Do you recall the conversation amongst other members of the tents nearby in relation to it?‑‑‑The next day - the next day there was talk and I remember - the person I do remember talking about it was a corporal named Kevin Platt and he was the one that brought up the incident about knocking the light out. He was in the tent next door. He said - he made a comment like: they were real professional hit men, knock out lights as they go on their way, or something like that, so that was ‑ ‑ ‑
THE D.PRESIDENT: Can I just interrupt there Mr Harrison? Do you have any recollection as to when this incident occurred?‑‑‑That happened at night. That would have been maybe 10 or 11 o'clock at night when the boozer shut because they'd all come back from the boozer.
And in terms of, I mean, obviously you wouldn't remember the date but maybe in relation to the first incident, the farmer incident?‑‑‑Yes?
Was it after that or before?‑‑‑Oh, it was after it.
How long after that would you say?‑‑‑Oh, I'd say roughly four or five months.
So quite a long time after?‑‑‑Yes. There was a distance between them. When I went into country I was with a reinforcement unit, then I got sent to 4RAR and then when 4RAR come home in May of '69 I was sent up to Headquarter Company and this happened in the later part of my tour at Headquarter Company, the tent incident.
Thanks.
MR HARRISON: Just in respect of that, it has been suggested that when patrols came back that once returning inside the wire, that all ammunition was removed from rifles?‑‑‑None of the patrols I went out on was ammunition ever - I've read that, fired in the pits or never did we remove any of our ammunition. We had full magazines with our weapon all the time, in our webbing we had full magazines. I've never - none of the patrols I went did we empty magazines into a pit when we come back. And I've spoke to people since then that were in infantry, I wasn't infantry, and they said: we would empty the magazine that we had on our rifle into a pit but nothing else. The other stuff stopped where it was. I had four full magazines the whole time I was in Vietnam with my webbing and none of that was ever handed back in. It doesn't make sense anyway because you - if there was a stand-to at night you would have no ammunition, you'd have your rifle and no ammunition to put in it if that was the case.
It has been suggested in a report of Colonel Church that ammunition was not retained by members of the patrols for defensive reasons as this was unnecessary because it was readily available in the defensive bunkers covering the base perimeter and also to the sentries manning the M60 machine gun emplacements. Are you aware of that? Do you have any comment to make?‑‑‑No, the time I went on the machine gun post there's only ammunition for the machine gun and your own personal stuff there if you took your rifle down onto the machine gun post with you. Once again each company had an ammunition magazine, well, if you had a stand-to and no one had ammunition you'd have 120 blokes running into an ammunition magazine trying to get ammunition and if you had a stand-to everything was blacked out anyway, you weren't allowed any lights. If there was a stand-to it was because there was activity on the outside of the wire and you wouldn't have had any lighting to get your gear together.”
(Transcript, pp 7-11).
10. In cross–examination, in relation to the TAOR (Tactical Area of Responsibility) patrol incident, the applicant said that he thought that the person in charge was an infantry soldier of the rank of corporal. He confirmed that there was a radio operator on the patrol but that no radio call was made to the base at the time of the shooting incident and that no comment was made to anyone about that incident when they returned to the base. He also said that the shooting incident occurred in daylight and the person who was shot was about 30 yards or 30 metres away from him at the time of the shooting.
11. The applicant was also questioned by the Tribunal regarding the two abovementioned incidents and his evidence was as follows:
“BRIG WARNER: Mr Briggs, if I can take you back to the first incident?‑‑‑Yes.
The patrol, and I think you said there was an NCO, probably a corporal, commanding that patrol?‑‑‑Yes.
Can you remember who that was?‑‑‑I can picture - I don't know who the guy's name was, I don't know the name of the person out here.
But he was aware of his duties, a professional?‑‑‑I don't know what his - he would have been a corporal, I don't know what his status was, whether he's a full time soldier or whether he's a national serviceman or something like that, if that's what you're asking, I don't know.
But you didn't know whether he was actually a section commander or a clerk just leading the patrol?‑‑‑No, no, no. I'm pretty certain that guy was infantry, was in the company as an infantryman.
So he would have been a - normally a section commander with his normal duties?‑‑‑I would think so. Yes.
Okay. You talked about the soldier at the front calling ‘contact left’?‑‑‑Yes.
Now there are well known contact rules when someone calls ‘contact left’ or ‘contact front’?‑‑‑Yes.
But your description from how I understood it suggested that those drills weren't enacted, that people just squatted down and waited. They didn't actually move in a contact drill?‑‑‑Well I don't - I wasn't infantry, I don't know what would have been expected of us other than like I did, I looked for the bloke in front of me and the bloke behind me and I was just told, just stop.
Right. And where were you, about in the middle of the patrol do you remember?‑‑‑No. I think I was second or third from the end of the patrol.
Right. Okay. We established earlier that there was a radio?‑‑‑Yes.
And someone was acting as a signaller?‑‑‑Yes.
Can you remember whether there were instructions or whether there was an SOP for the radio being used as soon as the contact was called? If someone calls ‘contact left’, would it have been normal for someone immediately to go onto the radio and say ‘in contact’ or whatever?‑‑‑I really couldn't tell you. The only instruction I got on the radio was when we went out - when we were out at night we did - we did shifts through the night a couple of hours at a time at night and said: when he calls - when they call in this, just click this three times or whatever the signal was, just click it three times.
Yes. No, I understand that?‑‑‑Yes.
I'm more interested in what happened when the contact was actually called?‑‑‑Yes. When I say, I don't know where the radio man was and the only people in view of me was the guy in front and the guy behind, so I assume the radio wasn't used because the incident wasn't reported, so I assume that the radio wasn't used at that time.
I could see the person that was shot. I seen the person fall that was shot, so I don't know whether other people could see the same thing and that. One of the things that when we did jungle training was - one of the things was contacts, is that you moved into - you walked into the contact - you walked into the contact, that's sort of the only - one of the things I remember.
Particularly ambushes, walk into it?‑‑‑Yes, you walk into the contact because there might be a 'pansy pit' on the other side if you start running away, or you know.
All right, if I can now move to the second incident, in the tent. You describe one of the visitors picking up a rifle and pointing it?‑‑‑Yes.
Now, was that a rifle that was ‑ ‑ ‑?‑‑‑It was Monkey's ‑ ‑ ‑
I'm assuming it was an SLR, first of all?‑‑‑Yes.
Was that a rifle that they brought with them?‑‑‑No.
Or was it a rifle in the tent?‑‑‑No. No. The rifles were - it was in the tent. In our tent we had - the latter part of our thing, we got flash, we had a locker, but mostly the rifles were left leaning against your bed or leaning against the tent. I don't know whether - I was never told there was any special way you should have them or anything, but they were just left there because if you went any distance in the camp you had to take a weapon with you, you had to take your weapon with you.
So, the weapon would have been there with a loaded magazine on it?‑‑‑Yes. Yes.”
(Transcript, pp 17-19).
The Medical Evidence
12. The medical evidence before the Tribunal includes certain reports of medical practitioners which are contained in the documents (T1-T26) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). These reports are set out below.
Report of Dr M Woodall dated 7 June 2000
13. The report of Dr M Woodall, Consultant Psychiatrist, dated 7 June 2000, addressed to the applicant’s general practitioner, Dr J Kerr, states as follows:
“Thank you for referring this 52 year-old man who expressed concern about his mental state recently. He had attempted to obtain psychological assistance at the Vietnam Veterans’ Counselling Service but was unable to see a male. He did obtain assistance from this service when his marriage was breaking up in the mid-1980’s. Mr Briggs described concern about his levels of irritability, explosive temper and argumentativeness. This is causing major problems at work but is also evident in many other situations. He has sleep disturbance with a tendency to wake in the early hours or middle of the night and on some occasions has a sense of not being in his true environment, at times as if in a tent in Vietnam. He has a degree of reexperiencing of events in Vietnam and marked fear of home invasions. He keeps a bayonet on the bed beside him and this anxiety has been worse since he was broken into last year and his campaign medals stolen. He regularly feels on the verge of tears and comments that this has been the case for years.
Mr Briggs has a long history of problems in controlling his anger. He reports some discipline problems in Vietnam when he had to be pulled into line a number of times and was physically violent in his first marriage. He has been in trouble previously chasing aboriginals with golf clubs and acknowledges that he has tended to shift jobs quite a lot as his temper got him sacked on a few occasions.
There is no formal past psychiatric history and his medical history includes sinusitis, severe migraine, dislocated right shoulder and tinnitus.
His father died in May 1999 and he was the second youngest of 8 children. He reports not doing that well and was unhappy at school where the nuns used to ‘physically lose it’. He jumped from job to job after leaving school and had been fostered out previously.
There was a lot of domestic violence at home and he did some work on a farm. He was called up for National Service and served 13 months as the re-enforcement with 4 Battalion RAR and then with HQ6 ATF based at Nui Dat. He was a cook who also went on a number of patrols and one particular situation in which a soldier casually shot a farmer continues to perplex and trouble him. He has married twice and has now been doing training work for about 5 years. Prior to that he was a crane driver and worked with Brambles until he took a redundancy in 1990. He reported no difficulty with this work which tended to be more solitary but he now has to work with two partners and negotiating different approaches is proving difficult for him.
Mr Briggs certainly has longstanding problems with control of his anger and symptoms consistent with Post-traumatic Stress Disorder. …”
(T4)
Report of Dr L Risbey dated 18 February 2003
14. The report of Dr L Risbey, Consultant Psychiatrist, dated 18 February 2003, addressed to the Department of Veterans’ Affairs, states as follows:
“Thank you for your letter of 24th October 2002 which Mr Briggs handed to me when I first saw him on 22nd November 2002, on referral from his general practitioner, Dr J Kerr.
I saw Mr Briggs on two further occasions (30th November and 14th December 2002) and also obtained information from a mate who knew him prior to his Vietnam service and subsequently.
I conducted a thorough psychiatric assessment in the usual manner, noting all the requirements of the Diagnostic Guidelines for Psychiatric Assessment and Reports which are issued by hour Department. However, for the sake of relative brevity, I will focus only on those matters and issues which are most relevant, and noting your four numbered questions which are of particular importance. If further information is required, I can prepare a more detailed report from my notes.
He presented with complaints of moodiness and irritability, social restriction and avoidance, insomnia (with a history of recurrent nightmares), intermittent alcohol abuse, deterioration in work performance largely due to outbursts and intolerance in the workplace, and agoraphobia. He avoids crowds because he is always in fear of engaging in confrontations, and expecting to be attacked.
His military history involved National Service from 1st May 1968 to 30th April 1970, with Vietnam service from January 19699 to January or February 1970 (twelve to thirteen months in Vietnam). Whilst in the catering corps, he was attached to 4th Battalion of infantry, and while based at Nui Dat he also spent considerable time at Fire Support Bases (mainly at ‘the Horseshoe’). In May 1969, when 4 RAR returned to Australia, he transferred to Headquarters 1 ATF (at Nui Dat) and in addition to cooking duties he was engaged in day patrols with Headquarter D & E (Defence and Employment) Platoon.
Just prior to being posted to Vietnam he spent a few weeks with his family, and still felt he ‘belonged’ and fitted in, in keeping with his having grown up a sociable ‘average’ guy, who felt part of the group, was even-tempered and never in fights.
Whilst in Vietnam he reported two particularly traumatic stressor events, once while with 4RAR in a TAOR Patrol, overnight, three to four kilometres out from Nui Dat, at a listening post. One of his group shot a Vietnamese man and when Mr Briggs heard the shot he was terrified, not knowing where it came from or what it was about, and feared being shot. Only after some time passed by, with no further shots, he realised it was not an enemy contact, and learnt that it was a farmer wielding a hoe who had been shot by an Australian soldier who thought, in the dark, that the man was wielding a gun.
Mr Briggs described his initial reaction as intense terror when he thought he might be shot, and then feeling horrified, sick and hopeless when he heard what had happened.
A second incident occurred in his tent, when one of his tent mates pointed a loaded rifle at a third man, with Mr Briggs watching from his bed. He pretended to be asleep as he feared that the rifle would be turned on him accidentally, and was feeling extremely terrified. Further he was intensely fearful that he would witness a murder and felt intensely helpless.
Each of these events satisfies Criteria A(2) for a stressor, as per DSM IV diagnostic criteria for post-traumatic stress disorder.
Whilst in Vietnam he became a heavy drinker, requiring alcohol intoxication to get to sleep (see below). Towards the end of his tour of duty he became increasingly irritable, getting into a lot of fights (in late 1969). Three days before his tour of duty was due to end, he was sentenced to 28 days in the lockup at Vung Tau for ‘conduct to the prejudice of the Army’ delaying his return to Australia.
Having seen dead bodies in Australia prior to Vietnam service, he had not found these traumatic and had not suffered nightmares.
There was no history of further traumatic stressor events having occurred subsequent to his Vietnam service. However, he suffered a full range of reliving symptoms, including vivid visual images, like a video on pause mode, which were intensely distressing; recurrent nightmares of trying to run away from enemy fire and being stuck and unable to move; brief flash-backs where he would ‘see’ the tent in which the rifle was being pointed, and a feeling of ‘being there’; intense distress at being reminded of, or asked about, his Vietnam experiences; and sweating on the palms when thinking about Vietnam. His symptoms satisfied all five Group B Criteria for post-traumatic stress disorder (DSM IV), only one being required for a diagnosis.
There was a strong history of marked avoidance behaviour, with rationalisation and regular alcohol use supplementing his mental efforts to attempt to avoid feeling distressed, but often in vain. Ever since seeing the gun pointed in the tent in Vietnam, he had never slept on his side or belly but only on his back, avoiding the vulnerability of other postures. Further, he avoided attending the Anzac Day Parades from 1970 until 1985, and avoided attending the ‘Welcome Home Parade’ in Sydney in October 1987. He had lost interest in swimming (having been passionate about this in his youth), and had a feeling of estrangement from others with almost no contact with his family, including siblings, feeling ‘that he was the odd one out’. He had no warm loving feelings and felt only anger, or nothing (a restricted range of affect); and a sense of a foreshortened future, having been surprised when he reached the age of 30 and subsequent landmarks of aging. His avoidance behaviours and symptoms of emotional numbing satisfied six of the Group C Criteria, only three being required for a diagnosis.
In addition to the history of severe insomnia (difficulty getting to sleep) and irritability, he suffered from poor concentration and attention, with forgetfulness; marked hypervigilance (being ‘a people watcher’ and always sitting with his back to the wall in public places); and a very marked startle response with sudden unexpected loud noises. His symptoms satisfied all five D Criteria, only two being required for a diagnosis, with chronicity of thirty years (E Criteria) and significant impairment in social, domestic and occupational areas of functioning (F Criteria).
Observations by Others
His mate, with whom I spoke by telephone, described him as a ‘normal sort of guy’ in his youth, having known each other at school and in later teen years. He described Mr Briggs as having been outgoing and confident, and very even-tempered having never shown signs of hot temper. He liked cars and was confident talking to girls. However, when he caught up with Mr Briggs in the late 1970’s he noted obvious changes, stating he was quite different. He initially assumed it was due to growing older but also noted that Mr Briggs never spoke about Vietnam. Further, he had lost some of his sense of humour, was no longer so outgoing, and lacked enthusiasm. He was very quiet and slow to answer. As time has gone by, he has continued to see progressive changes in Mr Briggs, especially in the last eight years or so with increasing withdrawal, and a very ‘short fuse’ and a hot temper, snapping over small triggers. However he was conscientious in his work, and his friend never saw him exhibiting alcohol problems, certainly never to the extent of having been ‘out of control’.
These observations corroborate the history of a normal personality prior to war service, but also the history of significant alteration in psychological functioning subsequent to war service. The changes described are entirely consistent with the onset of chronic post-traumatic stress disorder from 1969 or shortly thereafter, with continued deterioration over the years, especially in recent years.
Social and Employment History
Subsequent to Vietnam service he married in 1972, but his wife left him six years later because of his temper. He married a second wife in 1983, and she left him after five years because of his moodiness and anger outbursts. Since 1988 he has lived alone except for short periods, commenting on live-in girlfriends with the words ‘they can’t take my temper’.
Following Vietnam service he became intolerant of paperwork, of dealing with other people, and was easily annoyed over various issues (including the issue of confidentiality, otherwise, at the Vietnam Veterans Counselling Service).
Having worked on farms prior to his Vietnam service, his job history soon after returning from Vietnam involved builders’ labouring jobs and cooking jobs in mineral exploration. Since 1963 he developed skills in crane and forklift driving and as a rigger in construction engineering, and his last full-time job to June 2000 was as an instructor in crane driving and forklift operating. More recently, in this role he suffered increasing irritable outbursts and allegedly assaulted a trainee, after which he lost his job and his employer told him ‘we don’t’ want you back’. Currently he was working only on an occasional casual basis, ‘a day or two here and there’, and stated he was looking for work.
Socially he did not keep contact with other veterans, commenting that the ones he knew were ‘all piss tanks’ apart from a couple of veterans whom he had known prior to joining the army. He said he rarely saw his son who worked on a fishing boat, but had a little more contact with his daughter who had recently given birth to her first child.
Past Psychiatric History
In the mid ’80’s he began attending the Vietnam Veterans Counselling Service where he saw a male counsellor and developed trust in him. However since 1990 he would not attend the counselling service since he was unable to have a male counsellor made available. Nevertheless, as a result of his counselling in the late '80’s he had overcome his aversion to reunions to an extent, and in October 1992 he attended the dedication to the Vietnam Veterans War Memorial in Canberra, and said he enjoyed it.
During the late 1990’s he was having increasing difficulties with outbursts of verbal aggression, and then became depressed, sitting at home weeping, leading to his first attendance to a psychiatrist via phone contact with Vietnam Counselling Service. In mid 2000 he attended my colleague Dr Michael Woodall, who in his letter to Dr Kerr of 7th June 2000, noted the diagnosis of post-traumatic stress disorder and commenced treatment with Citalopram 20mg per day. Subsequently he was trialled on a lower dose as 20mg a day as causing persistent nausea. Mr Briggs told me that it also caused intolerable sexual side effects, and he had discontinued this.
Alcohol and Tobacco
He was a non-smoker on entering the army, and reported being only an occasional social drinker, mainly on weekends, with no effects on his work. He admitted that sometimes he drank to excess as a youth and occasionally had hangovers. He drank a lot in Vietnam, stating ‘you had to, to get to sleep’, noting that due to the lack of privacy he could not live with other people unless he was drunk. Subsequently he had drunk regularly but usually at home, and rarely drank in bars. He preferred rum and said he had an allergy to yeast, hence did not drink beer. He had not smoked tobacco but regularly smoked cannabis, consistent with a history of a chronic stress condition.
Mental State Examination
This indicated an edgy and tense man with poor concentration who was attempting to co-operate with history taking, and who experienced obvious distress when discussing Vietnam experiences which he tried to avoid. He showed a conscientious attitude regarding high standards in his work, in work safety, in training others, and in health and hygiene. He looked tired and depressed, and initially played down his experiences in Vietnam, finding it too upsetting to admit to himself how bad these experiences were for him and how much they may have continued to affect him.
His presentation was entirely consistent with the history of many symptoms of post-traumatic stress disorder, and there were no indications of other disorders, in particular, no suggestions of a recurrent primary mood disorder such as melancholic depression. His cognitive functions were grossly intact apart from the poor concentration noted.
…
In regard to your specific numbered questions:
1.A detailed history of all etiological factors eg stressors, including the veteran’s reactions
I have described two traumatic stressor events occurring in Vietnam, either of which would satisfy the A Criteria for a major stressor, including his emotional reactions at the time (see above).
2.The likely date of clinical onset and how this was established
From the personality change reported in the year subsequent to Vietnam service (and beginning immediately he returned home) in comparison with his pre-war personality, the onset of long-standing symptoms of social avoidance, irritability and regular drinking at home, together with the content of reliving symptoms and the target of avoidance behaviours, the evidence consistently points to the likely date of clinical onset being his time in Vietnam (1969 to early 1970) or shortly afterwards.
…” (original emphasis)
(T9)
Report of Dr M Woodall dated 26 May 2003
15. Dr Woodall prepared a further report, dated 26 May 2003, in response to Dr Risbey’s report. Dr Woodall’s further report states as follows:
“I have been seeing Mr Briggs for treatment of Post Traumatic Stress Disorder. Mr Briggs was assessed by Dr Lance Risbey with regard to his Disability Pension claim for Post Traumatic Stress Disorder. With the encouragement of his advocate, Mr Briggs has provided me with a copy of Dr Risbey’s report and the decision of the Department regarding his Disability Pension claim. Dr Risbey’s report is quite comprehensive, and was based on three interviews with Mr Briggs and information from a man who knew Mr Briggs prior to his Vietnam service and subsequently.
Unfortunately there are several errors of fact in Dr Risbey’s report. In particular, the account of a traumatic stressor event when Mr Briggs was on patrol with a Section. This patrol left in the afternoon, would camp overnight at a listening post, and return to Nui Dat the next day. Mr Briggs had described this incident to me previously, and again confirmed that it had occurred during the day. The Section had been advancing, with jungle on their right, through low vegetation, with paddy fields on their left. Mr Briggs heard one of the leading men call contact left and stopped. He heard a shot and about twenty five metres away from him saw the figure of a farmer collapse to the ground. He crouched and kept still and after a short period two soldiers moved forward and checked the body, then concealing it. Mr Briggs witnessed the shooting directly, and realized it was not an enemy soldier at the time of the shooting. Mr Briggs described feeling scared, angry, and as the patrol moved on, feelings of guilt and worthlessness. This tended to be reinforced as the patrol was described as uneventful, and the shooting not reported Mr Briggs has no recollection of the rest of the patrol, and the incident was not discussed. His distress would have been evident, as one soldier approached him and said ‘forget it. It happens’.
Mr Briggs’ recounting of this event to Dr Risbey was further made difficult by his emotional reaction at the time. Mr Briggs describes being choked up and distressed, and that Dr Risbey took some time trying to obtain information from him. Mr Briggs acknowledged that he really did not want to talk about the incident, as it distressed him so much.
In Dr Risbey’s report, the second incident that was reported did not involve a tent mate, but another soldier who was brought back to the quarters by a third person.
With regard to other aspects of the report Mr Briggs’ second wife left him after twenty months and his irritable outbursts resulted in him allegedly assaulting a colleague, not a trainee.
With regard to Mr Briggs’ treatment in the late 1990’s difficulties with verbal aggression, depression of mood and tearfulness led to his contacting the Vietnam Veterans’ Counselling Service and attendance there. He had never attended a psychiatrist via phone contact with the counselling service.
Over time Mr Briggs has had increasing difficulty obtaining employment as a result of his psychiatric condition. He has only been able to work eighteen days in the last two and a half years. When he has been able to obtain work, he has not been able to hold down employment and is increasingly isolating himself, as any contact with people is associated with high levels of anxiety and irritability.”
(T17)
Report of Dr J Olynyk dated 29 January 2003
16. Dr J Olynyk, Gastroenterologist and Hepatologist, provided a report, dated 29 January 2003, to the Department of Veterans’ Affairs. In that report (whose contents need not be set out here), Dr Olynyk confirmed that the applicant suffers from IBS. (T7)
The Evidence of Colonel J Church (Rtd)
17. The Tribunal also had before it three Writeway Research Service reports prepared by Colonel J Church (Rtd) at the request of the Department of Veterans’ Affairs. Oral evidence was also given by Colonel Church.
18. Colonel Church’s report of 19 November 2003 addresses a series of questions posed by the VRB in relation to the TAOR patrol incident referred to by the applicant, including the following:
“Response to Question No 2f What was the reporting procedure for a TAOR patrol involved in a contact?
10.During the contact, the patrol would report by radio the details of the contact to the Battalion’s base defence command post. Details of the contact would be entered in the operations log and reported to the task force base defence command post. The patrol commander would submit a Combat Operations After Action Report (COAAR) on his return to base. Details of the contact would also be entered in the unit commander’s diary for that month. COAARs were important documents and were of particular value to HQ 1 ATF and battalion Intelligence Staffs.
Response to Question No 2g Were TAOR patrols debriefed and patrol reports filed?
11.As mentioned in paragraph 10, in the event of a contact, the patrol commander would be debriefed on his return to his unit and he would be required to complete a COAAR covering the details of the contact. These after action reports would be attached to the unit after action report at the end of the operation, or in the case of a TAOR patrol, to the Unit Commander’s diary, prepared monthly.
Response to Question No 2h Would a TAOR patrol, whose mission was to establish a listening post two to three kilometres away from the Nui Dat base, have returned as late as mid-morning?
12.TAOR patrols usually returned to base after first light the next day, either on foot or by vehicle or APC if located at any distance from the base. It would be unusual for a patrol to return as late as the middle of the morning, unless it had been involved in an action and had to clean up the battle field, or it had been planned, when the patrol would have carried rations for the morning meal. Normally rations were only carried for the evening meal.
Response to Question No 2i As the event is said to have occurred within approximately one kilometre of the 1 ATF base, would a single shot heard but not reported have been investigated?
13.It was not unusual for shots to be fired in the vicinity of the base. This usually happened on the ranges that lined the eastern boundary of the base. When this occurred, the units nearest to the ranges were advised by radio when firing was about to commence and when it was complete. In the case of a shot being fired in the Base Area of Operations, the closest unit to the site would have investigated the occurrence and passed any details to the HQ 1 ATF command post.
Response to Question No 2j What were the hours of curfew in rural areas contiguous to the Nui Dat base?
14.The hours of curfew throughout Phuoc Tuy Province, including the immediate land around NUI DAT base were from 7:00pm until 6:00am. In the wet season this was varied to the hours between 6:00pm and 7:00am.
Response to Question No 2k Given that the Vietnamese farmer was in a curfew restricted area but outside of curfew hours, was there a procedure for Vietnamese nationals to report missing persons to HQ 1 ATF?
15 In the event of a Vietnamese national becoming a missing person, his or her relatives, providing they were innocent civilians and not members of the Viet Cong, would report the absence to the District Chief, in this case of Long Le District, whose headquarters were in the village of HOA LONG, just to the south of NUI DAT. The incident would not have been reported to HQ 1 ATF as a matter of course, although the District Chief may have done so, if he thought the disappearance arose from military action.
Response to Question No 2l Is there a record of a missing person reported to HQ 1 ATF during the period 4 January to 16 May 1969?
16.There are no records of any missing persons being reported to HQ 1 ATF during the period of the veteran’s attachment to 4 RAR.
Response to Question No 2m Is the incident related by the veteran recorded in any of the 4 RAR TAOR patrol reports between 9 January and 16 May 1969?
17.There is no record in any of the 4 RAR TAOR patrol reports of the incident described by the veteran. From the manner in which the veteran describes the incident as having occurred, it is unlikely that any report was made.”
(T24)
19. Colonel Church’s report of 8 November 2004 addresses the tent incident referred to by the applicant. The report states that Maj G S Pratt (Rtd), the officer commanding HQ Company HQ 1 ATF at the time of the alleged incident, had been consulted in relation to the applicant’s contention regarding this incident, and continues:
“Response to Contention About two months after the Veteran was posted to HQ 1 ATF, one of his tent mates, a Pte Monk, returned to the tent with three soldiers, who are understood to have been members of the Defence & Employment Platoon. One of them threatened the others with a loaded and cocked rifle. The Veteran says that he told the CSM about it.
5.MAJ George Pratt stated that the Defence and Employment Platoon, then commanded by LT Peter Cosgrove, MC, now Chief of the Defence Force, was an extremely well-trained and disciplined sub-unit. The procedures adopted by this platoon, as with all other infantry units of the task force, when returning inside the perimeter wire after patrolling in the base security area, was to fire off ammunition still remaining in their weapons. This was done into a pit specially dug for this purpose and was carried out under the supervision of the patrol or sub-unit commander. Ammunition carried in ammunition pouches was collected by the platoon sergeant and returned to the unit ammunition storage point. After ammunition had been dealt with as described, the platoon or patrol commander carried out an inspection of the weapons and ammunition pouches of all concerned and certified to his superior commander that all ammunition had been either destroyed or returned. The purpose of firing off the rounds loaded into weapons was that, after being in the weapons for a number of days, the rounds may have become contaminated with water and it was not safe to return them to storage.
6.MAJ Pratt explained that new reinforcements to the company were sometimes treated to episodes such as the veteran describes and if observed by a senior soldier or officer would have been dealt with as a minor infringement of rules, as soldiers were taught from early in their career, that a weapon should never be pointed at any person unless it was in the action of shooting to kill. In the event that a loaded weapon had been involved and the matter had been brought to the attention of the Company Sergeant Major, it would have been viewed more seriously and the culprit may have been subjected to a more severe punishment. MAJ Pratt had no knowledge of any such incident and it had not been reported to him. MAJ Pratt was disinclined to believe the such an incident had occurred.”
(Exhibit R1)
20. Colonel Church’s report of 2 May 2005, which addresses both the alleged tent incident and the alleged TAOR patrol incident, respectively, states as follows:
“1. In Reference A I was invited to contact two ex-servicemen whose names were provided by the claimant as witnesses to two of the Contentions listed in the original claims. I have also been asked to address the question of the handling of ammunition following the return of patrols into the base at NUI DAT.
2. The names of possible witnesses were given as a Mr Barry Monk and a Mr Paul Lowe. I have contacted these two ex-servicemen and report as follows:
(a)Mr Barry John Monk, born in 1945, was a NSM who served as a Cook attached to HQ Coy HQ 1 ATF from 1 April 1969 to 2 April 1970. Mr Monk remembered Mr Briggs, but had no knowledge of the incident in which a rifle was waved around in the tent. Mr Briggs stated in his contention that Mr Monk had gone to bed after they returned to their tent from the canteen and that he had gone to sleep. It would appear from Mr Monk’s lack of knowledge of the incident that this may well have been the case. His only comment was that if such an incident had occurred and it had been reported to the Company Sergeant Major it would have been the subject of disciplinary action. Mr Monk knew nothing about the patrol incident.
(b)Mr Paul Francis Lowe, born in 1920, a regular soldier attached to HQ Coy HQ 1 ATF from 2 September 1969 to 3 September 1970. Mr Lowe had served as a RAASC sergeant in HQ Coy HQ 1 ATF and had been in charge of the Other Ranks’ Mess. He remembered Mr Briggs and said that he had been a good soldier. When questioned about the incident involving a soldier being threatened with a rifle in the lines after the canteen had closed, he said he recalled such an incident but knew little about it as he had not been present at the time. Mr Lowe knew nothing about the patrol incident.
3. I have spoken to several Other Rank members of the Australian Regular Army who served two tours in Vietnam as Company Sergeant Majors of infantry battalions. These witnesses state that the procedure carried out by patrols on returning to the unit lines in NUI DAT base was to fire the ammunition in the magazines attached to the weapons into specially dug trenches before passing through the wire into the base. Ammunition carried in magazines in ammunition pouches was usually withdrawn and returned to company magazines. However, they qualified these statements by saying that the latter actions were not strictly followed. They also said that ammunition was not retained by members of the patrols for defensive reasons as this was unnecessary; ammunition was readily available in the defensive bunkers covering the base perimeter. It was also readily available to the sentries manning the M 60 machine gun emplacements from which they carried out their duties by day and night in the base area.
4. I have been unable to find any further records to substantiate the claimant’s statements concerning the actions of a TAOR patrol in shooting a civilian during his service with 4 RAR from 9 January to 16 May 1969. The only recorded incident in which a TAOR patrol from 4 RAR shot a Vietnamese was early in the battalion’s tour in 1968 before the veteran joined the unit.”
(Exhibit R2)
21. In his oral evidence-in-chief Colonel Church said that, in the event that a TAOR patrol encountered a “contact”, the standard practice was to make a radio report to the base “as soon as possible”. He added that, in the event that a person was shot during such a “contact”, the patrol commander, having alerted the base headquarters to the “contact”, would have been debriefed about the incident upon returning to base.
22. As regards the tent incident Colonel Church said that the Army would view very seriously the act of a soldier pointing a loaded weapon at a fellow soldier in the base (as described by the applicant), and that had such an incident been reported to the Company Sergeant Major (CSM) he would certainly expect that the CSM would have conducted an investigation into the matter.
23. In cross-examination it was put to Colonel Church that it was possible that the killing of a person by Australian forces during a TAOR patrol might not have been reported. Colonel Church responded that that would be “highly unlikely” and he added:
“… no responsible NCO in command of troops or … officer in command of troops would have failed to report an incident of somebody being killed”.
He said that had the person in command failed to do so, “they would have been failing in their duty”. (Transcript, p 41)
24. Colonel Church was referred by the Tribunal to para 2(b) of his report of 2 May 2005 (set out in paragraph 20 above) in which he noted that Mr Lowe (to whom he had been referred for information about the tent incident) had said that he remembered the applicant and also recalled an incident “involving a soldier being threatened with a rifle in the lines after the canteen had closed”, but that he “knew little about it as he had not been present at the time”. Colonel Church confirmed that Mr Lowe had said merely that he had heard that such an incident had occurred, and that he did not say that he recalled the applicant being connected with that incident. He also confirmed that, had such an incident been reported to the CSM the next morning, the CSM “would want to know all about it” and would surely have “instigated some investigation”. (Transcript, p 43)
The Relevant Legislation
The VE Act
25. Section 5D(1) of the VE Act contains the following relevant definition:
“disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
…”
Section 9 relevantly provides:
“(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;
…”
The standard of proof on which it is to be determined whether a “disease” is a “war-caused disease” is prescribed by s 120 of the VE Act which relevantly provides:
“(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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.
...”
Section 120A relevantly provides:
“…
(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.
…”
The Statements of Principles
26. The Repatriation Medical Authority (established by s 196A(1) of the VE Act) has determined, under s 196B(2) of the VE Act, the following relevant Statements of Principles (“SoPs”) which are presently in force:
· Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999, as amended by Instrument No 54 of 1999);
· Statement of Principles concerning Irritable Bowel Syndrome (Instrument No 103 of 1996).
27. Those SoPs relevantly state:
Post Traumatic Stress Disorder
“…
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
…
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’ Entitlements 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;
…”
Irritable Bowel Syndrome
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service are:
(a)…
(b)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
…
7.For the purposes of this Statement of Principles:
‘a specified psychiatric condition’ means:
(a)a psychiatric condition with features of anxiety, including:
(i)…
(ii)…
(iii)…
(iv)post traumatic stress disorder, ICD code 309.81; or
…”
Analysis and Findings
28. It is common ground that the applicant suffers from PTSD and IBS, and, on the basis of the abovementioned reports of Dr Woodall and Dr Risbey (in respect of PTSD) and the report of Dr Olynyk (in respect of IBS), the Tribunal so finds. The Tribunal also finds that each of those conditions is a “disease” (as defined in s 5D(1) of the VE Act).
29. The more problematic matter is whether each of those diseases from which the applicant is suffering is a “war-caused disease”, within the meaning of s 9 of the VE Act. That matter is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after considering the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of” the applicant’s operational service. If a relevant SoP determined under s 196B(2) of the VE Act is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
30. The Tribunal will now proceed to determine whether each of the abovementioned diseases suffered by the applicant is a “war-caused disease”, within the meaning of s 9 of the VE Act. In so proceeding, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
The raised hypothesis
31. It is common ground that the material before the Tribunal raises the hypothesis that the abovementioned incidents referred to by the applicant, namely, the TAOR patrol incident and the tent incident, were experienced by the applicant in the course of his operational service in Vietnam and that his experiencing of either or both of those incidents caused him to contract PTSD which in turn caused him subsequently to contract IBS.
The SoPs
32. As previously mentioned, there is in force a SoP determined under s 196B(2) of the VE Act in respect of each of those diseases.
Is the raised hypothesis a reasonable hypothesis?
33. It is also common ground that there is material before the Tribunal which points to:
· the applicant’s “experiencing a severe stressor” (as defined in para 8 of the SoP concerning PTSD), for the purposes of para 5(a) of that SoP, in the TAOR patrol incident and in the tent incident; and
· the applicant’s having subsequently contracted PTSD as a result of either or both of those incidents; and
· the applicant’s suffering PTSD within the 6 months immediately before the clinical onset of IBS, for the purposes of para 5(b) of the SoP concerning IBS.
34. The Tribunal accepts that there is material before it which raises a hypothesis which is consistent with para 5(a) of the SoP concerning PTSD and with para 5(b) of the SoP concerning IBS. Accordingly, the Tribunal is satisfied that the raised hypothesis connecting the applicant’s PTSD and IBS with the circumstances of his operational service is a reasonable hypothesis.
Is each of the applicant’s diseases, namely, PTSD and IBS, a war-caused disease, within the meaning of s 9 of the VE Act?
35. Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether, in respect of each of the abovementioned diseases suffered by the applicant, it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease is a war-caused disease, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 120(1) of the VE Act, determine that the relevant disease is a war-caused disease.
PTSD
36. The Tribunal’s consideration of the question whether the applicant’s PTSD is a war-caused disease necessarily focuses on the applicant’s evidence in relation to the TAOR patrol incident and the tent incident, and on the reports and evidence of Colonel Church in relation to each of those alleged incidents.
The TAOR patrol incident
37. As regards the applicant’s evidence in relation to the relevant TAOR patrol incident, the Tribunal makes the following observations:
· if, as the applicant stated, the radio operator on the relevant TAOR patrol failed to report the “contact” and the shooting of the Vietnamese “farmer” to the base, such failure would have constituted a serious breach of standard operating procedure;
· if, as the applicant stated, no member of the relevant TAOR patrol, after returning to base, reported the shooting (and killing) of the Vietnamese “farmer”, such failure would have constituted a serious dereliction of duty on the part of all 7 members of the patrol;
· in particular, a failure by the patrol commander to report that incident to the base defence command post would have constituted a gross dereliction of duty on the part of a responsible officer;
· there was no evidence before the Tribunal corroborating, to any degree, the applicant’s version of the TAOR patrol incident;
· the applicant failed to provide the name of any of the other 6 members of the relevant TAOR patrol group.
The Tribunal also notes that there were substantial discrepancies in the details of the TAOR patrol incident as described by the applicant to Dr Risbey and to Dr Woodall - see paragraphs 14 and 15 above.
38. In the absence of any evidence corroborating, to any degree, the applicant’s version of the TAOR patrol incident, and having regard to the applicant’s failure to provide the name of any other member of the relevant patrol group who may have been able to corroborate his version of that incident, the Tribunal is satisfied, beyond reasonable doubt, that that incident - which (as described by the applicant) would have involved a very serious dereliction of duty on the part of all 7 members of the patrol group, especially the patrol commander - did not occur. In particular, the Tribunal is satisfied, beyond reasonable doubt, that the particular incident claimed by the applicant to have caused him to experience a “severe stressor” (within the meaning of para 5(a) of the SoP concerning PTSD) - namely, the shooting and killing of a Vietnamese “farmer” by a member of the relevant TAOR patrol group – did not occur.
The tent incident
39. As regards the evidence before it in relation to the tent incident, the Tribunal makes the following observations:
· parts of the applicant’s evidence regarding the tent incident – namely, that the soldier from the Defence and Employment Platoon picked up a SLR rifle belonging to Private Monk (the applicant’s “tent mate”) which had been left in the tent with a loaded magazine on it, cocked the loaded rifle and pointed it at another soldier in the tent, and later cocked it again and ejected a round onto the ground as he was leaving the tent - are, in the Tribunal’s opinion, highly implausible;
· the applicant’s evidence that he reported the incident to the Company Sergeant Major (“CSM”) the next day, but that no action was taken, is, in the Tribunal’s opinion, also highly implausible given that (as stated in Colonel Church’s report of 8 November 2004 and in his oral evidence) Major Pratt (the Officer Commanding Company HQ 1 ATF at the relevant time) commented that the pointing of a loaded weapon at a soldier by a fellow soldier would have been viewed very seriously by the Army and that, had such an incident (as described by the applicant) been reported to the CSM, an investigation into the matter would certainly have been conducted – yet, he (Major Pratt) had no knowledge of any report of such incident;
· neither of the persons whose names were provided by the applicant to the Department of Veterans’ Affairs as possible witnesses to the tent incident, namely, Barry Monk and Paul Lowe, was able to corroborate, or indeed shed any light on, that particular incident as described by the applicant – Mr Monk’s only comment being that, if such an incident had occurred and been reported to the CSM, it would have been the subject of disciplinary action (see Colonel Church’s report of 2 May 2005);
· it is inconceivable, in the Tribunal’s opinion, that, had the tent incident occurred as described by the applicant, the applicant would not have subsequently mentioned it to Mr Monk (his tent mate), especially given that, according to the applicant, it was Mr Monk who had brought the offending soldier back to the tent before going to bed - yet Mr Monk told Colonel Church that he had no knowledge of that incident (see Colonel Church’s report of 2 May 2005).
40. Having regard to the whole of the material before it and to the abovementioned considerations, the Tribunal is satisfied, beyond reasonable doubt, that the tent incident (as described by the applicant) did not occur. In particular, the Tribunal is satisfied, beyond reasonable doubt, that the particular incident claimed by the applicant to have caused him to experience a “severe stressor” (within the meaning of para 5(a) of the SoP concerning PTSD) – namely, the pointing of a cocked and loaded SLR rifle in his direction by a fellow soldier causing him to fear that the rifle might accidentally discharge and that he might be shot – did not occur.
Finding
41. It follows that the Tribunal is satisfied, beyond reasonable doubt, that the raised hypothesis connecting the applicant’s PTSD with the circumstances of his operational service (namely, the TAOR patrol incident and/or the tent incident) is disproved, and that there is “no sufficient ground” (within the meaning of s 120(1) of the VE Act) for determining that the applicant’s PTSD is a war-caused disease, within the meaning of s 9 of the VE Act: see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
42. Accordingly, the Tribunal, in accordance with s 120(1) of the VE Act, finds that the applicant’s PTSD is not a war-caused disease, within the meaning of s 9 of the VE Act.
IBS
43. It is common ground that the only basis on which the applicant’s IBS could be regarded as connected with the circumstances of the applicant’s operational service, and thus be found to be a war-caused disease, is if the applicant was suffering from PTSD, which was itself war-caused, within the 6 months immediately before the clinical onset of his IBS (see para 5 (b) of the SoP concerning IBS). That hypothesis has been found by the Tribunal to be a reasonable hypothesis (see paragraphs 33 and 34 above).
44. As previously stated, however, the Tribunal is satisfied, beyond reasonable doubt, that there is “no sufficient ground” (within the meaning of s 120(1) of the VE Act) for determining that the applicant’s PTSD is a war-caused disease, within the meaning of s 9 of the VE Act. It follows that the Tribunal is also satisfied that the raised hypothesis connecting the applicant’s IBS with the circumstances of his operational service, through his PTSD, is disproved beyond reasonable doubt: see Byrnes (above) at 571.
Finding
45. Accordingly, the Tribunal, in accordance with s 120(1) of the VE Act, finds that the applicant’s IBS is not a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
46. For the above reasons the Tribunal affirms the decision of the VRB dated 28 January 2004.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop, Brigadier A G Warner, Dr D Weerasooriya
Signed: ............Sgd (S da Motta)............................
AssociateDate of Hearing 17 February 2006
Date of Decision 11 April 2006Solicitor for the Applicant Mr R Harrison
Dwyer Durack
Representative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
0
4
0