Bruce and Repatriation Commission
[2005] AATA 944
•27 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 944
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/164
VETERANS' APPEALS DIVISION ) Re ROBIN DAVIES BRUCE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date27 September 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in place of that decision:
(a) determines that the applicant’s PTSD is war-caused; and(b) remits the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance with the Tribunal’s reasons for decision, and on the basis that his entitlement to pension in respect of the condition of PTSD will commence from 13 May 1999.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – operational service – defence service – claim that post-traumatic stress disorder was war-caused or defence-caused – consideration of Statement of Principles – applicant an RAAF veteran – applicant assisted in recovery of crashed helicopter – applicant observed mutilated body in drum – applicant attacked and injured in a restaurant during defence service – events constituted experiencing a severe stressor – injuries resulting from attack in restaurant did not arise out of, and were not attributable to, defence service – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 70(5)(a), 70(7), 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stoddart (2003) 134 FCR 392
Guy v Repatriation Commission [2005] FCA 562
Roncevich v Repatriation Commission (2005) 218 ALR 733
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Chief Constable of West Midlands Police v Billingham [1979] 2 All ER 182
REASONS FOR DECISION
27 September 2005 Deputy President D G Jarvis 1. Robin Davies Bruce was engaged in operational service in Vietnam with the Royal Australian Air Force from 30 April 1970 until 29 April 1971. He also has eligible defence service from 7 December 1972 until 17 May 1990. On 13 August 1999, he lodged a claim for pension in respect of anxiety, mood swings and intrusive thoughts. The Repatriation Commission recorded a diagnosis of post-traumatic stress disorder (“PTSD”) in response to his claim, but subsequently rejected his claim for that condition.
2. Mr Bruce then applied to the Veterans’ Review Board (“VRB”) seeking a review of the Commission’s decision. The VRB confirmed the rejection of his claim. Mr Bruce has applied to this Tribunal to review the decision of the Commission as affirmed by the VRB.
Issues Before the Tribunal
3. The issues before me are as follows:
(a)whether Mr Bruce’s condition of PTSD is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”); and
(b)whether the condition of PTSD was caused by or attributable to his defence service.
4. Both parties accept the diagnosis of Mr Bruce’s condition. It was also common ground that if Mr Bruce is successful in his claim, the earliest date from which benefits may run is 13 May 1999.
Background
5. Mr Bruce was born on 12 February 1935. He joined the Royal Australian Air Force on 18 February 1969, and served from that date until 17 May 1990.
6. During his period of operational service in Vietnam, Mr Bruce was based at Vung Tau airfield with No. 9 Squadron, and mainly worked as a mechanic. He was responsible for undertaking repairs, servicing and maintaining aircraft and equipment; and on occasions he would also undertake guard duty of an evening around the perimeter of the base.
7. Mr Bruce asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service and defence service, and caused the condition of PTSD on which his claim is based. I will now summarize certain parts of the evidence before me in respect of the events in question.
The Helicopter Rescue Event
8. Mr Bruce gave evidence that one night towards the end of his tour to Vietnam, around about March 1971, he was asked to assist to recover an Australian helicopter which had crashed. He said that he went to the site of the crash in an American Chinook helicopter, which was big enough to lift the crashed helicopter. The Royal Australian Air Force did not have a suitable helicopter available for the rescue.
9. He said that when he got to the site he was lowered down to the crashed helicopter and secured it with ropes, and was then lifted back to the Chinook helicopter. That helicopter then moved the crashed helicopter to another area.
10. Mr Bruce said that he carried out this mission late at night when it was dark, and there was still enemy activity in the area, because he could see green tracer rounds when they went past. He said that the Australian forces used red tracers, but green tracers were normally used by enemy forces. He said:
“Attending to this was very frightening work. There was still enemy activity in the area.” (exhibit A3, page 2.2)
11. The applicant’s wife, Genevieve Ann Bruce, provided a witness statement and was called to give evidence. In her witness statement she referred to letters which Mr Bruce had sent to her, including a letter in which he had described going in a Chinook to get an aircraft out of an area before the enemy got the aircraft. She added:
“I also remember that he wrote that he was winched down amongst enemy gunfire to ensure the aircraft was safe to remove.” (exhibit A2, paragraph 5).
She said she had kept all of the letters for many years, but later destroyed them when she and Mr Bruce moved to South Australia.
Mutilated Body Event
12. Mr Bruce gave evidence that on occasions it was his custom to go into Vung Tau at night with service police to assist to bring personnel back to base before 11:00 pm. He said that on one occasion, which he thought was in the middle part of his tour of duty and before Christmas 1970, he and two service police officers and one other person from his squadron were attracted by noise to a group of American soldiers and a Vietnamese woman who was speaking loudly around a 44-gallon drum. He went to investigate and looked in the drum. He said he saw that it contained the dismembered body of a Negro man who he presumed was an American solider. He said that this was “very horrifying” (exhibit A3, page 2.6). He said that he and his companions waited there for ten to fifteen minutes and then US Military Police and ambulance people arrived. He said that the incident happened in the back streets of Vung Tau.
Rocket Attack Event
13. Mr Bruce also referred in his witness statement to an occasion in the last quarter of 1970 when he was watching a movie at an outdoor theatre near his base when a missile landed sixty to seventy metres away. However, counsel for Mr Bruce later conceded that he would not rely on this incident, and I will not narrate details of the evidence relating to that event.
Malaysian Event
14. This event occurred during Mr Bruce’s defence service. In April 1974, he was posted to No. 3 Squadron at Butterworth, Malaysia. He gave evidence that while he was based there, he took a group of nearly eighty scouts to a scout jamboree at Johor Bahru. He said that he was not on recreation leave when he took the scouts to the jamboree, but he attended the event with about six other people, including a flight lieutenant, a warrant officer, a sergeant and two corporals. He said that he understood that the flight lieutenant had obtained approval from the base commander to their participation in the jamboree.
15. Mr Bruce said that on the evening of the jamboree, he was dining in a restaurant in Johor Bahru with a number of other scouters. Also present were one of his colleagues from the Australian Air Force, and other persons from different countries. He had been invited to the restaurant by the Sultan of Johor’s brother-in-law. Mr Bruce gave evidence that while they were dining they were set upon by a group of Chinese men, who robbed him of his watch, stabbed him in the side and broke a couple of his ribs. He was taken to hospital at Johor Bahru, and later, according to an in-patient record of the Changi Hospital, Singapore, was admitted to that hospital on 3 August 1974, and discharged on 12 August 1974 (exhibit A1, T4, page 53).
Evidence of Dr Ewer as to the Asserted Events
16. Mr Bruce’s general practitioner referred him to a psychiatrist, Dr Ewer, in October 2000. In a report dated 14 June 2002 to the Department of Veterans’ Affairs Dr Ewer reported having obtained a history from Mr Bruce that he had been exposed to a range of stressful experiences during his operational service. Dr Ewer referred to three events, namely the rocket attack event, the mutilated body event, and the helicopter rescue event. He described this third experience as follows:
“Mr Bruce told me that an aircraft crashed. Mr Bruce and other soldiers went out to the crash site. Mr Bruce said that he came under fire from the enemy. He felt emotionally numb.”
His report then continues:
“Mr Bruce initially felt numb in response to the above traumatic events. He subsequently experienced fear and distress. Whilst in Vietnam Mr Bruce started to abuse alcohol to deal with his feelings.” (exhibit A1, T28, page 183.6)
17. Subsequently Mr Bruce’s solicitors requested a report from Dr Ewer. He was asked to advise whether any of the events met the definition of a “severe stressor” in the Statement of Principles (“SoP”) in respect of PTSD. He responded that in his opinion, the mutilated body event would meet the definition, and he also referred to another incident which occurred in 1974 in Malaysia, namely the event which I have described above as the “Malaysian event”. He said that this event would also qualify. Dr Ewer did not refer in his response to the helicopter rescue event or to the rocket attack event. However, in cross-examination he said that in his opinion, the mutilated body event and the helicopter rescue event would qualify, because Mr Bruce had significant symptoms that came on after those events. He also confirmed that the Malaysian event would qualify. He also acknowledged that Mr Bruce’s feeling of being emotionally numb would not satisfy the requirement of feeling intense fear, helplessness or horror.
18. I have, of course, also had regard to the cross-examination of Mr Bruce and to other evidence before me in relation to the above events. I have not referred to this further material at this point in these reasons, but I shall do so as necessary.
Legislative Background – Operational Service Events
19. I will first consider the claim based on the asserted stressors which are claimed to have occurred in operational service.
20. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(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; …”
21. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
22. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
23. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(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.”
24. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which 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.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
25. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
26. The claimed condition of PTSD is the subject of a SoP. I will set out the relevant provisions of the SoP below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
27. I am satisfied that the material before me points to an hypothesis connecting the condition of PTSD with Mr Bruce’s operational service. That hypothesis is that Mr Bruce experienced two traumatic events in the course of his operational service, namely the helicopter rescue event and the mutilated body event, which resulted in his suffering PTSD.
28. In reaching the conclusion referred to in the preceding paragraph, I make it clear that I have considered all of the material before me, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases, Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
29. I further consider (once again, after taking into account all of the material before me) that the hypothesis referred to above could not be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” and so not reasonable (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
30. A SoP has been determined by the RMA pursuant to s 196(2) of the VE Act in respect of PTSD. It is Instrument No. 3 of 1998 as amended by Instrument No. 54 of 1999 (the “PTSD SoP”, being exhibit A1, T30, pages 190 to 194 ), and is the SoP currently in force.
31. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
32. Under clause 4 of the PTSD SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran. Clause 5 provides relevantly as follows:
“Factors
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 … 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 …”
33. The expression “experiencing a severe stressor” is defined in clause 8 of the PTSD SoP as follows:
“‘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;”.
34. I consider that there is material before me which is consistent with the factor referred to in clause 5(a) in the PTSD SoP. The evidence as to the helicopter rescue event was that Mr Bruce experienced an event that involved the threat of death or serious injury, in that according to that evidence, he was taken to a situation where enemy action was continuing, and he witnessed enemy fire and was exposed to that fire. There is also evidence that the mutilated body event entailed Mr Bruce being confronted with the death of a person. That event is also of the same general nature as the third of the examples of events that qualify as stressors, in that although Mr Bruce did not witness atrocities, he observed the outcome of an atrocity.
35. For the above reasons, I consider that the hypothesis raised by the material before me is consistent with factor 5(a) of the PTSD SoP, and so by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Bruce’s PTSD with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act (which would mean that Mr Bruce’s claim would fail if I had concluded that the relevant hypothesis was not reasonable) does not therefore apply.
36. I now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. If I am not so satisfied, Mr Bruce’s claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, I note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). I also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, subs.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
37. Mr G Doube, the advocate for the Commission, referred to various inconsistencies between Mr Bruce’s evidence and other material before me, and contended that I should not accept the veracity or reliability of Mr Bruce’s evidence. I will refer first to Mr Doube’s criticism of Mr Bruce’s evidence as to the helicopter rescue event.
38. As is customary in proceedings in this Tribunal, Mr Bruce’s solicitors filed and served a witness statement by Mr Bruce to which I have referred above, and which is exhibit A3. The witness statement is, however, sketchy. At the outset of the hearing, Mr Bruce corrected the second sentence on page 2. This follows a brief account of his rescue of the crashed Australian helicopter, so that it now reads as follows (with his corrections indicated):
“I later found out that an individual had died from
thisanother downed Australian aircraft from the previous night. An Australian pilot and other individuals in it were injured.”
It became apparent during the hearing that the pilot who had died was one Pilot Officer Betts, and that he and another person in the helicopter were killed by groundfire, and the helicopter concerned was flown from the location where it came under fire to a nearby safe area. I think that the original form of this part of the statement caused some confusion during the hearing, and I will now refer to this confusion.
39. Mr Doube cross-examined Mr Bruce as to certain evidence that Mr Bruce had given to the VRB in connection with the helicopter rescue event, which suggested that he had told the VRB that the helicopter he was rescuing was the helicopter in which Flying Officer Betts had been killed. Certainly the VRB transcript records one question and answer whereby Mr Bruce assented to a question which includes the proposition that he went to recover “Squadron Leader” Betts’ aircraft (see exhibit R6, page 18, line 12). However, the relevant question and answer follow earlier questions where Mr Bruce was asked to fix the date of the event, and his answer indicates that he fixed the date of the event by reference to the date when Betts was killed. This evidence (and the form to which I will refer in paragraph 42 below) counters any suggestion that Mr Bruce altered his account of the relevant event as a result of information in an historian’s report of Colonel Underwood to which I will also refer later, because the relevant report concerning the attack which resulted in Bett’s death was not prepared until 5 November 2003.
40. When relevant parts of the transcript before the VRB were put to Mr Bruce in cross-examination before me, he said that he became confused before the VRB, and was “was getting questions pushed at me like going out of fashion” (transcript 29.10.04, page 8, line 19). He said he did not believe that he had assented to the proposition that he was rescuing Betts’ aircraft, and he did not think that the transcript was correct at that point. The copy transcript of the proceedings before the VRB, which was put to Mr Bruce in cross-examination, indicates that in a number of instances Mr Bruce’s answers were interrupted by further questions. Further, the transcript includes a number of gaps indicating that names or words are omitted. In these circumstances, I asked counsel to compare the transcript with a tape recording of the evidence before the VRB. After a long delay, which I understand was due at least in part to difficulties in replaying the tape recording, counsel suggested various corrections to the respondent, and the parties later lodged a copy of the transcript with some seventy-two agreed corrections or additions. I received this copy with cross references to the corrections as exhibit R6. One error in the transcript in particular might have caused Mr Bruce to be confused in his evidence before me, because it suggested that he had said that the Betts’ helicopter had crashed (see exhibit R6, page 17, line 18), but counsel agreed that the statement should have read that the helicopter had not crashed.
41. In his evidence before me, Mr Bruce made it clear that the helicopter he assisted to remove was not the helicopter in which Flying Officer Betts had been killed. He also said in his evidence before me that the Betts’ helicopter had not crashed, but Betts had been killed by groundfire and the co-pilot had flown the helicopter away from the enemy fire and had landed it safely some distance away. This evidence was consistent with the correction to his witness statement, to which I referred in paragraph 38 above.
42. Mr Bruce’s explanation that he only referred to the Betts’ event as an aide to fix the date of the rescue event in which he was involved is consistent with information in a Veterans’ Affairs Department form dated 22 March 2000, which is included in the T Documents. This records (amongst other things): “Time of Squadron Leader Best (sic) being shot down on duty. Recovery of aircraft under active enemy fire”. (exhibit A1, T19, page 160).
43. Mr Doube also referred to a report from another psychiatrist, Dr Kelly, and to Mr Bruce’s admission in cross-examination that he had not told Dr Kelly about the helicopter rescue event or the mutilated body event. The T Documents include a copy of a report dated 4 August 1999 from this doctor, to whom Mr Bruce was apparently referred by his general practitioner for assessment. Dr Kelly records Mr Bruce describing flashbacks which included certain incidents, one of which appears to be related to the rocket attack event and another of which appears to be related to the Malaysian event. Dr Kelly does not, however, refer to flashbacks which could be associated with the helicopter rescue event or the mutilated body event. Dr Kelly was not called to give evidence. However, he diagnosed PTSD, and thought that the condition had been contributed to “by both several incidents which occurred in Vietnam and more particularly the incident which occurred in Malaysia when he was attacked and stabbed” (exhibit A1, T5, pages 116 to 117). Because of the lack of detail in the report, it does not necessarily follow that the helicopter rescue event and the mutilated body event were not included in Dr Kelly’s reference to the incidents which occurred in Vietnam. I note that Dr Ewer did obtain a history of these two events when he saw Mr Bruce for the first time on 11 October 2000, and as mentioned above, Dr Ewer referred to these events in his first report.
44. The Department of Veterans’ Affairs engaged an historian, Colonel Underwood, to investigate certain aspects of Mr Bruce’s claim. The Department’s original request misstated the duration of Mr Bruce’s service in Vietnam, and Colonel Underwood’s first report did not contain any information relevant to the asserted helicopter rescue event, which occurred after the period investigated by Colonel Underwood. Subsequently Colonel Underwood provided a second report, dated 5 November 2003. This report related to the circumstances in which Pilot Officer Betts was fatally wounded by groundfire on 20 March 1971, and described what happened to the helicopter involved in that incident.
45. Additional historical information was tendered by the applicant, and comprised the Commanding Officer’s report concerning the activities of No. 9 Squadron during March 1971 (exhibit A8), and a report dated 12 April 1971 by Air Commodore Spurgeon, Commander RAAF Vietnam, covering the operational aspects of the activities of the RAAF Vietnam for the month of March 1971 (exhibit A9). This last report records that in March 1971, one pilot and one crewman were killed in action, one crewman was wounded in action, and six aircraft were damaged by groundfire, and of these, four required to be retrieved using a Chinook helicopter.
46. Colonel Underwood was called by the respondent, and referred in his evidence to a report of another incident which occurred on the day after Pilot Officer Betts was fatally wounded. This entailed a different Australian helicopter which also came under groundfire, resulting in a person on board that helicopter being wounded. According to the report, the helicopter then landed in an area which Colonel Underwood described as a “safe” area. The record suggested that this helicopter was then lifted by a Chinook, and he expected that it would have been carried back to Vung Tau. Colonel Underwood said that this helicopter had come under fire in the Long Hai Hills area at 9:05 am on 21 March 1971. He thought it unlikely that it would have been left in the area where it landed until after dark, but he could find no records to indicate when the helicopter had been retrieved.
47. In cross-examination Colonel Underwood admitted that aircraft from time to time did come under small arms fire, and that so-called “safe” locations sometimes came under attack. He also agreed that he had been unaware that during March 1971, four Australian helicopters had required to be recovered using Chinooks, and he acknowledged that he had only investigated one of those four events. He was therefore unable to provide detailed information regarding the other three recoveries. The event to which he referred in his evidence might not have been the event which Mr Bruce described, and in any event Colonel Underwood’s evidence does not lead me to find beyond reasonable doubt that Mr Bruce’s account of his involvement in the rescue of a crashed helicopter was untrue. In considering Mr Bruce’s evidence of this event, and the evidence of Colonel Underwood as to the available records, I am also mindful that it is necessary for me to take into account the difficulties in ascertaining the existence of relevant facts, including difficulties caused by the matters referred to in subparagraphs (i) and (ii) of s 119(1)(h).
48. Mr Doube also pointed out that Mr Bruce had not referred to the mutilated body event until the reference in T19, being the form dated 22 March 2000 to which I have referred above, and that this form refers to “dead bodies executed by V.C.” and to “drums” (emphasis added; exhibit A1, T19, page 160). Mr Doube also referred to Mr Bruce’s comment before the VRB that an alternative possibility was that the deceased American might have been involved in a drug deal, as opposed to having been killed as a result of contact with the enemy (being what he had told Dr Ewer); and he also pointed out that Mr Bruce had not, prior to giving evidence before me, referred to the presence of a Vietnamese woman when he saw the mutilated body.
49. Mr Doube also referred to Mr Bruce’s evidence that two of the service police present at the time when he saw the mutilated body were one Garvie (or Garbey), and Otley, although Mr Bruce also said that he was not sure that the former person was present. Colonel Underwood advised that he had been unable to trace Otley. Mr Doube tendered a letter from one Douglas Frederick Garvie, which advised that he (Mr Garvie) had served as a service policeman in the RAAF, but had not been involved in the incident; however, he also said that he left Vietnam in July 1970. Mr Garvie also commented in his letter that he would have expected such an event to be recorded in the Unit Occurrence Book. As against this, the body in the drum, on Mr Bruce’s evidence, was that of an American solider, not an Australian, and there were US service police present. It can reasonably be postulated, as Mr Bruce suggested, that the Australian service police might not have reported this incident, as it was not a matter affecting Australian servicemen.
50. Mr Doube further pointed out that there were significant differences in Mr Bruce’s estimates over the years as to his consumption of alcohol, as recorded by various documents included in the T Documents.
51. Mr Doube also pointed out that the records of the Changi Hospital of the injuries sustained in the Malaysian event do not include any reference to stab wounds in the chest. As against this, the records do confirm the duration of Mr Bruce’s stay in hospital, and that he sustained significant injuries.
52. It was further contended on behalf of the Commission that Mr Bruce had not at first based his claim on the Malaysian event. However, Mrs Bruce gave further evidence that in an earlier discussion with an officer of the Veterans’ Affairs Department, she and Mr Bruce had been advised that any claim in respect of this event should be treated as a military compensation and rehabilitation claim, and not a claim under the VE Act. Mrs Bruce said in support of this explanation, that, at the time, she had been given a Military Compensation and Rehabilitation Service Claims information kit. She produced this kit, and it was tendered as exhibit A10. I accept this explanation.
53. I have referred above to possible explanations for a number of apparent discrepancies or difficulties in Mr Bruce’s evidence. As regards the form numbered T19, I note that this was completed by another person. Even though Mr Bruce signed the form, and should not have done so if it was incorrect, it is possible, having regard to my assessment of his evidence, that there was some misunderstanding in the recording of the event. The person who completed the form was not called to give evidence to eliminate this possible explanation.
54. I found Mr Bruce to be an unsatisfactory witness, in the sense that he was not articulate, and on occasions had difficulty in clearly communicating his response to questions he was asked when giving evidence. He was also at times agitated and not able to remember matters clearly. Dr Ewer gave evidence that Mr Bruce’s memory might be affected by his drinking and by his PTSD. I must also take into account that Mr Bruce was giving evidence about events that occurred many years ago, and it is not surprising that there are some discrepancies in his recollection and narration of the relevant events. Whilst there is force in Mr Doube’s criticism of Mr Bruce’s evidence, I am not satisfied beyond reasonable doubt that the essential aspects of his evidence as to the hypothesis linking his PTSD with his war-service should not be accepted.
55. I have carefully considered all of the evidence relating to the helicopter rescue event. I find that the matters asserted by Mr Bruce have not been disproved beyond reasonable doubt, and no other information has been adduced which leads me to conclude, by reference to the relevant standard of proof, that this event did not occur. Further, no other facts which are inconsistent with the hypothesis based on this event have been proved beyond reasonable doubt. I further find that the helicopter rescue, including Mr Bruce’s subjective reaction to it, satisfies the definition of experiencing a severe stressor within the meaning of the PTSD SoP, and so the disentitling provisions of s 120(3) of the VE Act do not apply.
56. As to the mutilated body event, notwithstanding the discrepancies to which my attention has been drawn, I am again not satisfied beyond reasonable doubt that this event did not happen. The Commission also contended that on the evidence before me, Mr Bruce did not have a subjective reaction of intense fear, helplessness or horror, and that accordingly I should not find that that event constituted his having experienced a severe stressor within the meaning of the relevant definition in the PTSD SoP. That subjective reaction is required in order for there to be a diagnosis of PTSD, and the requirements for such a diagnosis are referred to in clause 2 of the PTSD SoP.
57. However, in this matter diagnosis has been admitted. In the case of events which entail the threat of death or serious injury, or a threat to a person’s physical integrity, it is necessary to consider the subjective reaction of the veteran, taking into account the veteran’s knowledge at the time of the event, in order to determine whether the veteran perceived the relevant event as a threat (Repatriation Commission v Stoddart (2003) 134 FCR 392). But the mutilated body event did not entail a threat; rather, it entailed Mr Bruce being confronted with an event that involved actual death, and his having witnessed the results of an atrocity. I find that the event satisfied the objective requirements of that aspect of the definition. Under the relevant definition in the current PTSD SoP (as opposed to the predecessor SoP in respect of PTSD) there would appear to be no requirement, in the case of an event of the kind in question on this aspect of the present matter, for a subjective reaction on the part of the veteran of intense fear, helplessness or horror, where diagnosis is admitted (cf Guy v Repatriation Commission [2005] FCA 562). Nevertheless, in view of my finding as to the helicopter rescue event, it is not necessary for me to finally determine this issue.
58. For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the condition of PTSD was war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Bruce’s condition was war-caused.
Claim Based on Defence Service - The Malaysian Event
59. For the sake of completeness, I will now consider Mr Bruce’s claim in respect of the Malaysian event. This claim has been made under Part IV of the VE Act. It is asserted that the event occurred in the course of defence service, not operational service. In these circumstances, the standard of proof is determined by s 120(4) of the VE Act, and accordingly the Commission (and this Tribunal, standing in the shoes of the Commission) must decide the matter to its reasonable satisfaction. Under s 70(1), where an eligible member of the Defence Force has become incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension by way of compensation to the member.
60. Where a SoP has been made in respect of the asserted disease, the Commission is to be reasonably satisfied that the disease was defence-caused only if the material before the Commission raises a connection between the disease and some particular service rendered by the person, and there is a SoP that upholds the contention that the disease is, on the balance of probabilities, connected with that service (s 120B(3) of the VE Act). In the case of PTSD, a SoP has been made setting out the factors which must as a minimum exist before it can be said that the condition of PTSD is defence-caused. That SoP is Instrument No. 4 of 1999, as amended by Instrument No. 55 of 1999.
61. Mr Bruce claims that to the extent that his PTSD was caused or aggravated by the Malaysian event, it must be taken to have been defence-caused by virtue of s 70(5)(a) of the VE Act. This section provides relevantly as follows:
“(5)For the purposes of this Act, the death of a member of the Forces … an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;”
62. Section 70 of the VE Act was analysed in the recent High Court decision of Roncevich v Repatriation Commission (2005) 218 ALR 733. In that case, the claimant attended a dinner at sergeants’ mess at the Army base where he was stationed and resided. He consumed a quantity of beer and became inebriated. He left the mess with the permission of his immediate superior, for the purpose of changing from his military fatigues into civilian clothes, iron his uniform and then return to the mess. He returned to his room, walked to his window, stood on a trunk beneath it and leant forward intending to expectorate. He overbalanced and fell to the ground below, injuring his knee. The High Court held that in rejecting the claim, the Administrative Appeals Tribunal had not asked the correct question, set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law. The Court pointed out that there was evidence before the Tribunal that there was a requirement and an expectation of attendance at the sergeants’ mess and the consumption of alcohol on the occasion in question, when a senior officer was visiting the base. The Court also pointed out that the need for the officer to return to his quarters and prepare his uniform for the next day were capable of arising out of, or having been attributable to, his defence service.
63. The High Court further pointed out that the provisions of s 70(5) do not use the traditional workers’ compensation formula of “arising out of and in the course of employment”, and that the use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning. The Court said, further, that a causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
64. The Court also decided that the Tribunal should not have confined its consideration to the obligations or duties on members of the defence forces, and that it was relevant also to consider what the member of the defence force was reasonably required, expected or authorised to do in order to carry out his duties (see per McHugh, Gummow, Callinan and Heydon at [17] and [18], and Kirby J at [94] and [95]).
65. Counsel for Mr Bruce, Mr Jolly, contended in the present matter that Mr Bruce’s injuries did arise out of, and were attributable to, his defence service. This contention raises complex issues. In Roncevich Kirby J said at [82] (omitting footnotes):
“As with all issues of causation in law, it is necessary to identify the limits of the propounded obligations. Such limits are usually drawn in a commonsense way by reference to any considerations of policy reflected in the language and purposes of the governing law. The prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time. In every case, it is necessary to postulate an outer boundary of liability.”
Kirby J also referred at [77] and [78] to situations where voluntary action on the part of a person might sever a causative link, unless it was the defendant’s conduct that gave rise to the risk that injury would ensue from such voluntary conduct.
66. The “common sense” approach in analysing the facts of each case was also referred to in one of the cases cited by Kirby J, namely March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, at 515 and 522-523.
67. In applying this approach to the facts of the present matter, it is perhaps arguable that Mr Bruce’s attendance at the jamboree could be said to be attributable to, or to arise out of, his duties. It appears from the evidence before me that he was encouraged to participate in that activity, and that he did so in company with other members of the armed forces, and with the authority of the base commander. However, of the Australian defence personnel who had been at the jamboree, only Mr Bruce and one other person attended the dinner. There was no evidence that Mr Bruce had been expected or authorised to participate in the dinner on the evening of the jamboree. Further, there is no evidence that the function at the restaurant put him at risk of being injured or attacked. A common sense approach to the facts before me leads me to conclude that the injuries sustained by Mr Bruce when he was attacked by the Chinese assailants at the restaurant, and any psychiatric condition arising from that attack, did not arise out of, and was not attributable to, Mr Bruce’s defence service. I accordingly would be disposed to reject Mr Bruce’s claim insofar as it is based on the Malaysian event.
68. The potential liability of the Commonwealth for defence-caused injuries or disease is extended by s 70(7) of the VE Act. This provision deems a disease to be defence-caused where in the opinion of the Commission, the incapacity resulting from the disease “was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his … having rendered defence service.”
69. The application of this provision to the facts of the present case would entail considering whether the criminal conduct by the assailants resulting in Mr Bruce being injured could be said to constitute an “accident”. From Mr Bruce’s point of view, this was an “accident” in the sense that it was an unfortunate consequence arising from the deliberate act on the part of his assailants (cf Chief Constable of West Midlands Police v Billingham [1979] 2 All ER 182 at 186, per Bridge LJ). It would also be necessary to determine whether Mr Bruce would have developed PTSD in any event as a result of the helicopter rescue event or the mutilated body event, in which case s 70(7) would have no application to his claim for PTSD. This issue was not canvassed in the hearing before me, and counsel did not rely upon s 70(7) in support of Mr Bruce’s claim. Once again, in view of my above finding that Mr Bruce’s PTSD was war-caused, it is not necessary for me to determine the issues arising from the claim based on the Malaysian event.
Decision
70. I set aside the decision under review, and in place of that decision:
(a) determine that Mr Bruce’s PTSD is war-caused; and
(b)remit the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance my reasons for this decision, and on the basis that his entitlement to pension in respect of the condition of PTSD will commence from 13 May 1999.
I certify that the 70 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
B Bills AssistantDate/s of Hearing 31 May 2004, 27 & 28 October 2004, 17 November 2004, and 2 & 3 December 2004
Date of Decision 27 September 2005
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
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