Briggs and Repatriation Commission
[2003] AATA 603
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 603
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/44
VETERANS' APPEALS DIVISION ) Re RAYMOND BRIGGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K L Beddoe
Dr K P Kennedy, OBE, MemberMr I R Way, Member
Date27 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder - alcohol dependence or abuse – whether applicant’s conditions are war caused – whether applicant has suffered a severe stressor – whether reasonable hypothesis established - whether stressor arose out of a “wilful act” of the applicant
Veterans’ Entitlements Act 1986 ss 9(3), 24, 120
Statement of Principles
Instrument No 3 of 1999 as amended by No 54 of 1999Instrument No 76 of 1998
Re Roncevich and Repatriation Commission [2002] AATA 343
Repatriation Commission v Levi (1994) 61 FCR 189
McPherson v Repatriation Commission (1989) 87 ALR 275
REASONS FOR DECISION
27 June 2003 Senior Member K L Beddoe
Dr K P Kennedy, OBE, Member
Mr I R Way, Member1. By a decision notified on 4 January 2000 the respondent accepted the applicant’s claim to have bilateral sensorineural hearing loss with tinnitus accepted as caused by operational service but refused claims for post traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse. Pension was assessed at 10% of the General Rate effective from 30 April 1999.
2. The Veterans’ Review Board subsequently affirmed the decision to refuse the claim for PTSD and alcohol dependence or alcohol abuse.
3. The basis of the applicant’s case is that he is entitled to be paid a special rate pension in accordance with section 24 of the Veterans’ Entitlements Act 1986 (“the Act”). It is clear, at least to the Tribunal, that the applicant cannot succeed in that claim unless the rejected disabilities are accepted.
4. At the hearing Mr Hall, solicitor, represented the applicant and Mr McAninly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr Gelb, a consultant psychiatrist, and Professor McCarthy.
5. The parties were given leave to make further submissions, in writing, at the conclusion of the hearing, because the Tribunal was not satisfied that the parties had correctly identified the issues in this case. Both parties subsequently made written submissions and those submissions have been taken into account.
6. The applicant was born 10 August 1935 and enlisted in the Royal Australian Navy on 8 August 1952. He was discharged medically unfit in July 1959. The applicant had operational service in South Korean waters from 2 November 1953 to 16 July 1954 on HMAS Murchison.
7. During service the applicant suffered a serious injury to his right leg. That injury did not occur during operational service but lead to the applicant’s discharge. Liability for compensation was accepted in relation to that injury which was accepted as resulting in 30% incapacity for civilian employment.
8. The basis of the applicant’s claim is that he was exposed to a severe stressor during operational service on HMAS Murchison, while serving in Korea, resulting in PTSD and Alcohol Abuse.
9. It seems that HMAS Murchison was on patrol in waters proximate to the 38th parallel and adopted a practice of calling at Yong Pyong Do as a place of off-shore anchorage and as a place for rest and recreation.
10. It also seems that the applicant and other seamen were granted a day’s leave on Yong Pyong Do on an uncertain date (March/April 1954). The seamen engaged in a bat and ball game of an uncertain nature with United States Marines on this day.
11. The applicant and another Australian (Peter Bray) decided to extend their activities by seeking sex from Korean women in a village to the north of the anchorage. They accompanied two Americans for this purpose. As it transpired Bray was deputed to mind the boat they took to the village while the applicant and the two Americans went to the village for the purpose of getting sex. It also seems that the villagers may have had a prior experience of the Americans, whether the two in question or generally we do not know, but in the event they faced a hostile reception at the village including being threatened with knives.
12. The consequence was that the applicant and the Americans beat a hasty retreat, but not before one of the Americans was wounded with a knife. By comparison the applicant and the Americans had guns. In his statement Bray says that the applicant had a pistol which he thought could have belonged to the wounded American (T4/50-1), the applicant confirmed this. Shooting occurred, but the villagers retaliated with stones. Apparently most of the villagers were women who it might be presumed were unhappy with the applicant and the Americans for reasons which are unclear but probably had something to do with requests for sex at the time or in the past.
13. The applicant and the Americans returned safely to Yong Pyong Do unharmed except for the stab wound suffered by one American. In his oral evidence the applicant said that he had felt “pretty safe” because the Americans had guns and seemed to know what they were doing. However, the applicant conceded that seeking sex from Korean women was not permitted. He also said that because of the reaction of the villagers he thought he was going to be killed. According to the applicant’s evidence the only guns being fired were by himself and the other American. It is not suggested that the villagers had guns albeit they used rocks etc.
14. The applicant said he was not aiming to shoot anybody.
15. The applicant attributes the trauma experienced to the incident in the village and movies which he said resulted in nightmares.
16. Bray describes the applicant when he returned to the boat with a pistol in his hand with these words:
“Ray was as white as a ghost and shouting to me to turn the boat around.”
“The Marines and Ray ran into the water and scrambled into the boat, one Marine still firing his pistol into the crowd.”
“Ray pulled the (injured) Marine from the water into the boat…”
“Ray and the other two fell into the bottom of the boat as we sped away.”
“I saw Ray with a pistol in his hand and possibly he had taken it off the Marine who had been knifed. He was shaking badly and I thought he looked like he was going to be sick.” (T4/50-1 and Exhibit E)
17. In his oral evidence the applicant said he thought the weapon he used was a revolver and he admitted that he had fired it indiscriminately into the crowd of women and children.
18. At the Veterans’ Review Board the following exchange occurred between the Senior Member and the applicant:
“Ms Cowdroy: How far ahead were you of this mob? I mean, how – what distance did you manage to keep between yourself and the others?
Mr Briggs:Oh, I could run pretty fast in those days, 20 I’d say 10, 20 yards, something like that.”
We are satisfied that the context of questioning was such that Ms Cowdroy’s reference to “the others” referred to the women and children of the village.
19. Associate Professor McCarthy from the Australian Defence Force Academy made a report dated 5 September 2001 (Exhibit 2). Professor McCarthy conducted historical research of matters relevant to the applicant’s claim at the request of the respondent.
20. Professor McCarthy had the benefit of the statements made by the applicant and Mr Bray, but according to his report, and confirmed by his oral evidence, Professor McCarthy was unable to discover a record of circumstances likely to corroborate the evidence of the applicant and Mr Bray as to the visit to the village. He was also unable to find any evidence which would refute their evidence.
21. Professor McCarthy was able to confirm that HMAS Murchison anchored off Yong Pyong Do on 12 March 1954 and left the area on 14 March 1954. He states that there is no record of any landing on the island. He also said that the Murchison returned to the area on 20 April 1954 and “anchored in station” leaving the area on 27 April 1954.
22. We are satisfied that is more likely than not that crew of the Murchison went ashore while the ship was in the vicinity of Young Pyong Do during April 1954. We are not so satisfied that the crew went ashore at Young Pyong Do at some other time and in particular Christmas 1953, as stated initially by the applicant, when the ship was outside the operational area of South Korea and the area was likely to experience severe winter weather conditions at that time of the year. While the applicant now suggests the incident took place in March 1954 on balance we think a date in April 1954 is more likely. In the event little turns on the precise date of the described events at the village.
The Medical Evidence
23. The applicant’s service records indicate that he attended the medical officer on a regular basis for a variety of conditions all of a physical nature.
24. On discharge the applicant complained of instability of the right knee which was diagnosed as:
(a)Rupture (R) medial collateral ligament; and
(b)Rupture (R) anterior cruciate ligament.
25. In a pro forma report dated 21 July 1999, Dr Veltmeyer reported the following conditions:
(a)Post Traumatic Stress Disorder (“PTSD”);
(b)Depression;
(c)Alcohol excess;
(d)Nicotine abuse (ceased 1992); and
(e)Sensorineural loss – bilateral industrial type – tinnitus.
26. In a comprehensive report dated 8 December 1999, Dr Anderson, psychiatrist, reported to the Department of Veterans’ Affairs that the applicant suffered from:
(a)PTSD;
(b)Depression;
(c)Alcohol Dependence and Abuse – in remission from 1996; and
(d)Nicotine Dependence – ceased in 1992.
27. Dr Anderson found that the applicant was able to give a good history of past events but his recent and short term memory was relatively poor. He had problems with concentration span and was quite distractible.
28. The history recorded by Dr Anderson is generally consistent with the applicant’s evidence before us.
29. Dr Anderson sets out the applicant’s statement in so far as it describes the village incident. Dr Anderson discussed the applicant’s history in the context of the diagnostic criteria for PTSD.
30. Dr Anderson reports recurrent and intrusive flash backs of the village incident and films about the Holocaust and Japanese atrocities shown on the way to Korea. He describes recurring dreams, persistent avoidance, diminished interest and persistent symptoms of increased arousal. He says that alcohol is a big problem ever since the village incident and says that the applicant began drinking in Hong Kong after the incident – a statement at odds with the history recorded by Dr Kingswell (see below).
31. Dr Anderson attributed the applicant’s PTSD and alcohol abuse and dependence to exposure to severe stressors during operational service in Korea.
32. Dr Gelb is a consultant psychiatrist who prepared a report dated 14 August 2000 addressed to the applicant’s advocate. Dr Gelb’s report does not set out a history although it seems he took one from the applicant. He describes the confrontation with the villagers and concludes that it was clearly a traumatic experience for all involved and a severe stressor within the terms of Instrument 55 of 1999 (T3/66-7).
33. Dr Gelb made further reports dated 19 June 2001 (Exhibit G), 30 September 2001 (Exhibit H), 14 May 2002 (Exhibit J) and 4 July 2002 (Exhibit L) all of which were addressed to the applicant’s solicitor.
34. In Exhibit G, Dr Gelb deals with the finding of the Veterans’ Review Board that the applicant had a fear of being persecuted as a war criminal which was the cause of the psychiatric symptoms. In particular he said that if the applicant’s life had not been at risk, the risk of prosecution alone would not have “produced” PTSD. The threat of prosecution alone, he said, would not have constituted a sufficient threat, nor would the reaction have been one of intense fear, helplessness or horror. Dr Gelb said that guilt and fear of discovery would have been the main complaints.
35. Dr Gelb then sets out his clinical basis for finding the presence of chronic PTSD which he said were inconsistent with mere guilt and fear of prosecution.
36. In Exhibit H, Dr Gelb points out, in response to Dr Kingswell’s report of 1 August 2001, that the applicant’s abuse of alcohol commenced after the incident at the village.
37. Exhibit J describes a family altercation which evidences the applicant’s present medical conditions but does not assist us in coming to a decision in this matter. Exhibit L also deals with the applicant’s present conditions being an assessment of functional loss.
38. In his oral evidence Dr Gelb confirmed that the applicant’s alcohol abuse related back to his PTSD. The self medication with alcohol exacerbates the PTSD. He also said that in his view the incident with the villagers led to an immediate stress/anxiety disorder with the primary cause being chased by the villagers and not whether he may have killed someone when firing at or about the crowd.
39. Exhibit 1 is a report by Dr Kingswell, consultant psychiatrist, dated 1 August 2001 and addressed to the Department of Veterans’ Affairs. Dr Kingswell had been provided with the earlier medical reports and other documents. He interviewed the applicant and also had pathology tests conducted.
40. Dr Kingswell took a history as to past events and present health. The history recorded by Dr Kingswell includes the following:
“Mr Briggs entered the Navy as a recruit or ‘boy seaman’. He was sent to the Flinders Naval Depot for six months. In November 1953 after he had turned eighteen he was sent to Korea. It was in Korea he said, that he commenced drinking as a result of ‘the stress’.. On shore leave every three weeks he would spend a couple of days drinking. He said he was ‘a bad drunk’. By that he meant that he was short tempered, prone to ‘smart arse remarks’ and often involved in fighting. In Hong Kong he was disciplined with five days in the cells.
Mr Briggs said that he usually began drinking with other seamen and would finish up in a brothel. He contracted a number of sexually transmitted diseases.
Mr Briggs thought his drinking was driven by a number of influences. Firstly, he said it was a particularly intense environment. He said there were enemy aircraft overhead and they frequently at ‘action stations’.. He said he spent most of his time worried for his safety. He said he expressed his anxiety by smoking too much and drinking too much.”
41. Dr Kingswell sets out a number of conclusions following examination and pathology testing including the following:
“Both psychiatrists have linked the etiology of the disorder to Mr Briggs experience of running from an angry mob on the island of Yong Pyong Do. If this event took place as described by Mr Briggs and Gray in his unsigned undated account then I expect that the Statement of Principles with respect to experiencing a severe stressor are satisfied. In all likelihood it was an event that evoked intense fear. There is a literature on Post Traumatic Stress Disorder arising in persons carrying out acts of serious violent crime.
The extent to which Mr Briggs Post Traumatic Stress Disorder contributes to his disability is uncertain. In my view, Mr Briggs most important current and past diagnosis by his account is alcohol dependence (DSM-IV:393.90). The significance of irritability, sleep disturbance, anxiety, depression and poor concentration are all highly questionable in the setting of intoxication. Further, as evidenced by Mr Briggs cognitive testing he has significant abnormalities that may be etiologically related to his alcohol consumption. Although one cannot be completely confident that these are not changes from some other etiology such as a dementing process or the impact of boxing.”
42. Also Dr Kingswell said:
“Mr Briggs gave a history of alcohol dependence beginning in Korea and continuing throughout his adult life. The onset of the disorder he said, was linked to the stressful circumstances that he found himself in. He did not, by his account, have pre-existing psychiatric disorder and his drinking was not in response to the incident described on the island on Yong Pyong Do. It was by his account a pattern of drinking that commenced as soon as the opportunity arose on shore leave.”
Consideration
43. The applicant’s case is that he experienced a severe stressor in the confrontation with the villagers when he and others went there for sexual satisfaction. He says that he was not on a frolic of his own outside his operational service.
44. He says that he was confronted with an event that involved actual or threatened death or injury to himself and his companions such as to constitute a severe stressor. The basis for this is that he heard a gunshot, his American companion appeared with a wound to his arm, the villagers threatened the applicant and his companions with sticks, knives and throwing of rocks and the firearm used by the applicant to shoot at or about the villagers was not his firearm. The applicant says it is irrelevant that he and his companions were being attacked by women and children.
45. The applicant further submits that the Navy acquiesced in its members seeking sexual favours from local women on a paid or unpaid basis because it supplied prophylactic items to sailors going on shore leave. The submission seems to equate the village women with “paid or unpaid sex workers”.
46. The applicant acknowledges that he had a fear of being labelled a war criminal but this was a reasonable fear and explains why the incident was not reported at the time. The fact of the applicant firing the gun is not relevant.
47. The respondent submits that the incident relied on was one of the applicant’s own making, if it took place, which is to be doubted on the basis of the monthly reports of proceedings of HMAS Murchison.
48. The terms of Instrument No 3 of 1999 as amended by Instrument 54 of 1999 are not met because there was no threat of serious injury or death as defined, because the only action taken by the women and children, in terms of the hypothesis, was to throw stones at the applicant and his companions. The women and children had sticks and knives but did not use them when they had the opportunity in the village.
49. It follows, on the basis of the hypothesis, that the incident did not at any time result in a threat of serious injury or death to the applicant or his companions.
50. Nor, says the respondent, was there any engagement with the enemy, and the village incident occurred outside the setting of service in the Defence Forces and, in the alternative, was not caused by the applicant’s defence service.
51. The respondent relies on the decision in Re Roncevich and Repatriation Commission [2002] AATA 343.
52. In the alternative the respondent says that the applicant’s stressor is due to a wilful act as defined in section 9(3) of the Veterans’ Entitlements Act 1986 (“the Act”).
53. The respondent referred to the decision and reasons of the Federal Court in Repatriation Commission v Levi (1994) 61 FCR 189 and McPherson v Repatriation Commission (1989) 87 ALR 275. It submitted that the decision in Levi should be followed. McPherson did not apply because here the applicant’s wilful act was a frolic of his own in search of sex.
54. We have considered these submissions carefully. We accept that on the basis of the medical evidence there is an hypothesis made out which connects the claimed conditions with the applicant’s service in Korea.
55. Taking the hypothesis as put forward by the medical evidence we have to be satisfied that the hypothesis regarding PTSD satisfies the requirements of Instruction No 3 of 1999 as amended by Instrument No 54 of 1999 (section 120A of the Act).
56. We are not so satisfied. We are not satisfied that the actions of the women and children in the village could be described as a threat of serious injury or death. On the incident as described by the applicant there was a threat of serious injury or death to the villagers because the applicant was firing the gun at them. They responded with stones. Certainly they had knives and sticks also but on the applicant’s evidence they did not use them. The applicant and his colleagues were being told, in no uncertain terms, to leave the village. That was the extent of it. As to how the American Marine suffered a wound in his arm is a mystery to the applicant, on his evidence.
57. We are not satisfied that there was a “severe stressor” as defined in Instrument No 3 of 1999 as amended or Instrument No 76 of 1998.
58. If we are wrong about that we should add that the applicant’s excursion to the village for sex and his subsequent shooting at or about villagers would be a wilful act and also an occurrence that happened while the veteran was committing a serious breach of discipline. If it was necessary to do so we would have found that the incident occurred, on the balance of probabilities, that the applicant was on a frolic of his own and we would therefore have been satisfied, beyond reasonable doubt, that there is no sufficient ground for being satisfied that either of the claimed conditions are war caused because they were not caused in the course of his operational service.
59. The decision under review will be affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe, Dr K P Kennedy, OBE, Member and Mr I R Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 1 August 2002 (at Maroochydore)
Date of Decision 27 June 2003
Solicitor for the Applicant Mr Hall, Noel Woodall & Associates
For the Respondent Mr McAninly , Departmental Advocate
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