Bullow and Repatriation Commission
[2006] AATA 818
•25 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 818
ADMINISTRATIVE APPEALS TRIBUNAL №V2005/449
VETERANS’ AFFAIRS DIVISION
Re: DAVID wesley BULLOW
Applicant
And:REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Dr Kerry Breen, Member
Date:25 September 2006
Place:Melbourne
Decision:The decision under review is affirmed.
(sgd) Egon Fice
Member
CATCHWORDS – disability pension – alcohol abuse – hypertension – severe stressor – causal link between service and disease
Veterans Entitlements Act 1986 ss 9, 13, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
25 September 2006 Mr Egon Fice, Member
Dr Kerry Breen, Member
1. In late 2003 Mr David Wesley Bullow lodged a claim with the Repatriation Commission (the Commission) seeking a disability pension for a number of claimed medical conditions arising out of his operational service. The Commission accepted that Mr Bullow’s bilateral sensorineural hearing loss, bilateral tinnitus and tinea were war-caused conditions. However, the Commission rejected his claims for alcohol abuse, hypertension and bilateral myopia because they were not war-caused. Mr Bullow applied to the Veterans’ Review Board (VRB) for a review of the decisions relating to alcohol abuse and hypertension. The VRB affirmed the decision of the Commission. It found that Mr Bullow did not satisfy the factor in the Statement of Principles (SoP) upon which he relied to establish alcohol abuse. Therefore, the material before the VRB did not raise a reasonable hypothesis within the meaning of the Veterans Entitlements Act 1986 (the Act). The VRB also rejected Mr Bullow’s hypertension claim because it did not accept that his alcohol abuse, at the time of onset of hypertension, was causally related to his service. Mr Bullow seeks a review of those decisions.
2. The parties agreed that, for the purposes of this hearing, if the Tribunal were to find that Mr Bullow’s alcohol abuse was war-caused, then his hypertension was also war-caused. Accordingly, we have only addressed the issues raised by Mr Bullow’s claim in respect of alcohol abuse.
Relevant Facts
3. Mr Bullow was called up for national service and he joined the Australian Army on 7 February 1968. He completed his national service on 6 February 1970 when he was discharged from the army. Mr Bullow saw operational service with 17 Construction Squadron Workshop in Vietnam where he served as a fitter and turner between 23 December 1968 and 3 December 1969.
4. Mr Bullow was stationed in Vung Tau until about the end of July 1969 when he was sent to Nui Dat until the completion of his operational tour.
5. After Mr Bullow went into the army on 8 February 1968, he was sent to Puckapunyal to complete his basic training. It was there that Mr Bullow met Mr G. Archer, who had also been conscripted at that time. They had beds next to each other in the accommodation at Puckapunyal and, according to Mr Bullow, “knocked around together” and developed a close friendship over the 10 week basic course. After completing basic training, Mr Archer was posted to 9 RAR (the 9th Battalion, Royal Australian Regiment). Mr Bullow said that he maintained his friendship with Mr Archer and that they communicated by letter on a regular basis. He said that he had discussed with Mr Archer the possibility of meeting up with him in Vietnam and “getting together” on rest and recreation leave, possibly in March 1969.
6. Mr Archer was posted to Vietnam in November 1968, arriving at Vung Tau on 20 November 1968. He then joined 9 RAR which was based at Nui Dat. On 1 February 1969 Mr Archer was accidentally injured in a fire at Nui Dat and he was evacuated to the US 106 General Hospital in Tokyo, Japan. Unfortunately, Mr Archer did not recover from his injuries and he died at the hospital on 4 February 1969. According to Mr Bullow, he found out about Mr Archer’s death from another soldier from 9 RAR in about March 1969. Mr Bullow was told that Mr Archer had accidentally set fire to himself as a result of smoking in his tent. Mr Archer’s body was not returned to Australia but was buried at Terendak, in Malaysia.
7. Mr Bullow returned to Australia on rest and recreation leave on 15 July 1969 and he went back to Vietnam on 22 July 1969 where he continued his operational service with 17 Construction Squadron Workshop Detachment at Nui Dat until the completion of his operational tour on 3 December 1969.
8. During the course of his service in Vietnam, at a date Mr Bullow cannot recall, he said that he was in the wet canteen one night when a soldier, who was on piquet duty, came into the canteen brandishing his rifle, pointing and waving it at the gathered crowd of drinkers. Because this soldier was on piquet duty, Mr Bullow knew that the weapon was loaded although the soldier appeared to be treating the incident as a joke. Mr Bullow said that he did not treat the incident as a joke because he had previously had a disagreement with the soldier and was not friends with him.
9. Mr Bullow also played rugby and Australian Rules football when he was in Vietnam. The matches were generally played at the Police Academy and the Military Academy in Vung Tau. When Mr Bullow was in Nui Dat from July 1969 until the end of his operational tour, he said that he would fly down to Vung Tau in order to play with the 17 Construction Workshop football team. According to Mr Bullow, in about October 1969, he participated in an Australian Rules football match which was held at the Police Academy. The team members had changed into their football clothes in the back of their trucks which transported them to the venue and, during the game, a number of Vietnamese from the Police Academy were caught attempting to pilfer the team members’ valuables from the back of the trucks. They were caught by some of the Australian soldiers and at least one of them was seriously assaulted. When the Australian soldiers attempted to leave the academy in their trucks, they were stopped by a guard on the gate brandishing a machine-gun. According to Mr Bullow, the guard fired two bursts of machine-gun fire over the top of the trucks to prevent them from leaving the grounds of the academy. After a significant standoff, an officer from the Police Academy arrived on the scene calming the situation and allowing the Australians to depart.
10. On 26 April 1983 Mr Bullow enlisted in the Army Reserve for 3 years. At the conclusion of that period of service in 1986, Mr Bullow re-engaged for a further period of 6 years. However, due to medical problems, he was discharged from the Army Reserve on 8 July 1988.
Diagnoses and Basis for Claim
11. At the outset, the parties agreed that Mr Bullow suffered from alcohol abuse and hypertension. Dr J. Cooper, psychiatrist, examined Mr Bullow on 13 April 2004 and diagnosed Mr Bullow as suffering from mild alcohol abuse disorder. According to Dr Cooper, Mr Bullow met the diagnostic criteria for alcohol abuse specified in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistic Manual of Mental Disorders. There was no issue about the fact that Mr Bullow suffers from hypertension and that was confirmed in a report prepared by Dr K. Keane on 10 February 2004.
12. The only issue between the parties which the Tribunal is required to determine is whether Mr Bullow’s alcohol abuse is war-caused within the meaning of that expression as used in the Act. When Mr Bullow brought his claim for alcohol abuse to the Commission in November 2003, he relied on the fact that his service in Vietnam caused him anxiety, depression and stress. At the hearing before the Tribunal, Mr Bullow relied solely on the fact that he experienced a severe stressor while on operational service in Vietnam, which caused the onset of alcohol abuse. In his application to the Commission for a disability pension, Mr Bullow made this statement regarding the cause of his alcohol abuse:
… my mate died in Vietnam whilst I was there. Gary Archer was his name and it really upset me, not only that he died, but they didn’t bring him home to bury him.
13. The Commission denied Mr Bullow’s claim in relation to alcohol abuse and he sought a review by the VRB. At the hearing before the VRB, Mr Bullow relied principally on the incident where the soldier entered the wet canteen brandishing a loaded weapon and waving it towards the persons in the canteen and the incident following the football match at the Police Academy. He did mention the death of Mr Archer in the course of the VRB hearing, although his principal focus appeared to be on the two other incidents. However, in opening Mr Bullow’s case before the Tribunal, Mr G. Moore of Counsel indicated that Mr Bullow’s case depended on one relevant causal stressor, that being Mr Bullow’s reaction to the death of Mr Archer. He said that while the incidents at the Police Academy and in the wet canteen could not satisfy the relevant SoP dealing with alcohol abuse, those events nevertheless contributed to his inappropriate drinking behaviour. Given the way in which Mr Moore presented Mr Bullow’s case, it would, strictly speaking, be unnecessary to examine in detail the Police Academy and wet canteen incidents, although some time was taken up during the hearing in presenting evidence to support Mr Bullow’s account of the Police Academy incident. It seems to us that in making a determination regarding Mr Bullow’s claim arising out of alcohol abuse, we will necessarily need to deal with those incidents.
The legislative Scheme
14. The eligibility criteria for a service disability pension are set out in s 13 of the Act. As far as Mr Bullow is concerned, s 13(1)(b) is most significant and it provides that where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran in accordance with the Act.
15. War-caused injuries or diseases are defined in s 9 of the Act. As Mr Bullow relies on his operational service in Vietnam to establish the causal link between his service and his alcohol abuse, s 9(1)(a) is relevant and it provides:
War-caused injuries or diseases
(1) Subject to this section and section 9A, 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;
…
16. In Woodward v Repatriation Commission (2003) 131 FCR 473 (Woodward), the Full Court of the Federal Court rejected the applicant’s argument that the claim could be dealt with pursuant to ss 120(1) and (3) without recourse to s 120A or any SoP. The Full Court said, at page 492:
To summarise the position, if any of Mr Woodward's experiences in Vietnam were ``occurrences” within s 9(1)(a) the question whether the diseases which he contracted were war-caused required the AAT to consider whether those diseases were caused by (resulted from) those experiences. That question could only be resolved by reference to ss 120(1), (3) and 120A. For the reasons set out earlier, those sections in turn required consideration to be given to the relevant SoPs in force.
The standard of proof to be applied by the Tribunal where the claim relates to operational service rendered by a veteran is set out in s 120(1) of the Act. The Tribunal is required to determine that the injury is a war-caused injury or the disease is a war-caused disease unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In applying that standard of proof, the Tribunal must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the injury or disease was war-caused if, after consideration of the whole of the material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury of disease with the circumstances of the particular service rendered by the person (s 120(3)).
17. Because Mr Bullow’s claim was made on or after 1 June 1994, s 120A applies to the hypothesis advanced by an applicant drawing the connection between the operational service and the injury or disease suffered by the veteran. Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury or disease with the circumstances of the service rendered by the applicant is reasonable only if there is in force an SoP that upholds the hypothesis. The Repatriation Medical Authority (the RMA) has determined an SoP for alcohol dependence or alcohol abuse and the relevant Instrument is No 76 of 1998.
18. In applying the SoP provisions set out under s 120 of the Act, the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 set out the four stages of analysis to be used when determining a claim. The Court said at pages 97-98:
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.
19. Before proceeding to examine the first hypothesis raised by Mr Bullow, it is, in our view, important to bear in mind that the purpose of the statutory provisions dealing with war-caused injuries or diseases and the standard of proof to be applied are all connected by a common thread; that being that there must be a causal link between the service of a veteran and the disease or injury claimed. In Woodward, the applicant submitted that where a claim was brought under s 9(1)(a) of the Act, the claimant need only point to a temporal, and not causal, relationship with operational service. In making that submission, the applicant relied on what the majority of the Full Court (Lee and Cooper JJ) said in Repatriation Commission v Keeley (2000) 98 FCR 108 at 115. Although the Full Court in that case was dealing with s 8(1)(a), which applies to a war-caused death of a veteran, it is in the same terms as s 9(1)(a) which applies to war-caused injuries or diseases. There the majority said that the connection between the event, or events, and the “operational service” may be co-incidental and not causal. However, the Full Court in Woodward said, at 488:
“The observation in Keeley that a provision in those terms contemplates a link with service that may be no more than temporal, and that the connection with service, “may be co-incidental and not causal” cannot, in our view, be reconciled with the language of these provisions.
Sections 8(1)(a) and 9(1)(a) plainly require first, an “occurrence” that happened during operational service. That is, there must be a temporal relationship between the event (which constitutes the occurrence) and service in question. At that level, the service need not cause, or contribute to, the event. However, the claimed “death” in the case of s 8(1)(a), or “injury or disease” in the case of s 9(1)(a), must result from that event or events. The words “result from” are words of causation. They require that there be a causal link between the veteran’s service, on the one hand, and the “death”, or “injury or disease”, that “happened during operational service”, on the other.
The Death of Mr Archer
20. The first of the Deledio steps requires the Tribunal to consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. There is no question of fact finding at this stage. If no such hypothesis arises, the application must fail.
21. According to Mr Bullow, he learned of Mr Archer’s death in about March 1969, Mr Archer having died on 4 February 1969 from burns received accidentally when stationed at Nui Dat. Mr Bullow did not witness the accident nor was he close by when the accident occurred, being stationed at Vung Tau at that time. Mr Bullow said he was in the wet canteen at the time when he was told by another soldier from 9 RAR that Mr Archer had died as a result of setting fire to himself. According to Mr Bullow, about one week later, the news was confirmed by a Mr N. Gibson who was with Mr Archer and Mr Bullow during recruit training at Puckapunyal. Mr Bullow also said that Mr Gibson was the focus of his anger because he seemed happy about Mr Archer’s death and he said: “I felt like punching him”. In his written statement made on 9 August 2006, Mr Bullow said that the news of Mr Archer’s death came as a shock to him and that his death has had a significant effect on him ever since. In his oral evidence before the Tribunal, Mr Bullow said he was horrified and devastated at the news of Mr Archer’s death and particularly the way that he had died. He said his behaviour changed at that time and he started drinking more heavily.
22. Mr Bullow relied on the death of Mr Archer and his finding out about that death as the principal event or occurrence in the course of his operational service which caused his alcohol abuse. However, it should be readily apparent that the link between Mr Bullow’s operational service and being told about Mr Archer’s death when drinking in the wet canteen at Vung Tau is no more than temporal. There is no causal relationship with his operational service. We have no doubt that Mr Bullow’s distress on learning of the death of Mr Archer would not have been any different if he was told about it when he was in Australia. Nor would the situation be any different if Mr Bullow had been informed of the death of a parent or relative in Australia while he was in Vung Tau. There could be no causal relationship between such an event and his operational service. Although Mr Moore submitted that the event of learning of Mr Archer’s death was similar to Mr Woodard being told of the death of two helicopter pilots with whom he had flown on operations against the enemy, it is our view that there are significant differences between the two cases. According to Mr Woodward, he was required to process forms concerning the deaths of the two pilots (as he was an army clerk) and that he also had to pack the belongings of one of the pilots who died, which resulted in him coming face to face with death on active service by seeing the images, presumably in a photograph, of the dead pilot’s wife and young daughter.
23. In our opinion, merely being told about the death of Mr Archer, tragic as that must have been, does not raise anything other than a temporal connection between Mr Bullow’s alcohol abuse and his operational service. It does not satisfy the first step in Deledio and therefore, in our opinion, all the material dealing with Mr Archer’s death does not point to a hypothesis connecting Mr Bullow’s alcohol abuse with the circumstances of his operational service.
The Wet Canteen Incident
24. According to Mr Bullow, about three months into his tour of duty, when he was drinking in the wet canteen, a soldier walked into the canteen and began waving his rifle around at the persons in the canteen. Mr Bullow said that he was certain that the rifle was loaded because all of the soldiers in Vietnam were equipped with rifles and live ammunition. The soldier made no threats nor did he say anything and, according to Mr Bullow, the soldiers in the wet canteen at the time treated it as a joke.
25. Mr Bullow said he did not treat the incident as a joke because he did not have a good relationship with the soldier brandishing the weapon. In fact, according to Mr Bullow, the soldier, who he referred to as Mitch, had a number of disagreements with Mr Bullow and he was always niggling him about something. Although Mr Bullow agreed that the entire episode was probably a joke, he said that he didn’t take it that way and that it caused a significant change in his drinking habit.
26. Having considered all the material regarding this incident, we are of the opinion that it does point to a hypothesis connecting Mr Bullow’s alcohol abuse with the circumstances of his operational service in Vietnam.
27. As we have previously stated, there is in force an SoP determined by the RMA under s 196B(2) or s 11 of the Act. The relevant SoP is Instrument No 76 of 1998 dealing with alcohol dependence or alcohol abuse.
28. According to Instrument No 76 of 1998, one of the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of a persons relevant service is:
5(b) experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or …
29.Experiencing a severe stressor is defined in the SoP as follows:
“experiencing a severe stressor” means, the persons 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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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; …
30. Mr Bullow was cross-examined at the Tribunal hearing about this incident and we have relied on the cross-examination, the evidence given to the VRB and also to the Commission. Mr Bullow told the VRB that the rifle was not aimed at anyone in particular but it was simply waved about. No threats were made by the person brandishing the weapon. Mr Bullow also said that the person brandishing the weapon was taking it totally as a joke and that other persons in the canteen also took the incident as a joke. However, he said he did not take it as a joke because he was not friendly with that person. Mr Bullow said that he did not know how the incident ended and added that he probably found it more stressful than other people in the canteen might have. He admitted that it probably was a joke but that he didn’t take it that way. No report was made of the incident.
31. There is no question that the expression experiencing a severe stressor as defined in the SoP does not require there to be an actual threat judged objectively and with the full knowledge of all the circumstances. The Full Court of the Federal Court in Woodward, at 498, in agreeing with the Judge at first instance said:
In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
32. Although Mr Bullow said that he had a number of run ins with the person waving the rifle, and that the person was always niggling him about something, we do not believe that a reasonable person in the position of Mr Bullow would believe that he was at risk of death or serious injury in the circumstances described. In fact, the evidence Mr Bullow gave the VRB does not even suggest that he feared death or serious injury. He merely said that it was more stressful for him than it might have been for anybody else.
33. Therefore, in our view, this hypothesis is not consistent with the template set out in the SoP as it does not contain one or more of the factors set out in paragraph 5. Therefore, this hypothesis is not reasonable and Mr Bullow’s claim based on this incident cannot succeed.
Police Academy Incident
34. Mr Bullow estimated that this incident took place in about October 1969. He had flown down to Vung Tau from Nui Dat to play with the 17 Construction Workshops Australian Rules football Team. The match was held at the Police Academy. According to Mr Bullow, South Vietnamese nationals from the Police Academy were caught stealing soldiers’ valuables from the back of the Australian trucks, where they had left their clothing having changed to play football. One of the Australians apparently assaulted one of the Vietnamese who was caught stealing valuables but Mr Bullow did not see that and was only told about it. As the two trucks began to leave the Academy grounds, they were stopped at the gate and machine-guns were pointed at the trucks. One of the Vietnamese fired a burst from his machine-gun over the top of the trucks. The driver of the truck in which Mr Bullow was seated reached for his M16 weapon, although there was no return fire. According to Mr Bullow, the incident lasted about twenty minutes when an officer from the Police Academy came out and settled everybody down. Mr Bullow also said that everyone in the back of the truck dived for cover when they heard the machine-gun fire and that he was terrified. Mr Bullow also said that there was an inquiry about the incident and five soldiers were asked to make statements but he was not one of them.
35. Mr Bullow’s story was supported by Mr C. Richards, who said he was in attendance at the Police Academy football match as a spectator and was off the field but close to the vehicles. His account of the incident is similar to that of Mr Bullow, although there are some notable differences. Mr Richards said he was not required to make a statement regarding the incident although other members of 17 Construction Workshops were asked to do so.
36. We have no doubt that the football match constitutes a circumstance of Mr Bullow’s service. Maintaining the physical fitness of soldiers on active duty is of some importance. We are also satisfied that the accounts given by Mr Bullow and Mr Richards about the Police Academy incident point to a hypothesis connecting his disease with the circumstances of his service.
37. The relevant SoP for alcohol abuse has already been previously discussed. The question is whether this hypothesis fits within one of the factors set out in paragraph 5 of the SoP. In our view it does. An event like the one described by Mr Bullow involved actual threat of death or serious injury or a threat to the person’s or other peoples physical integrity and we have no doubt that such an event might evoke intense fear, helplessness or horror. Because the hypothesis fits within the template provided by the SoP, it is reasonable.
38. However, for the reasons we have set out below, we are satisfied beyond reasonable doubt that Mr Bullow’s alcohol abuse was not war-caused.
39. Lieutenant Colonel H. Conant conducted substantial research into this incident for Writeway Research Services Pty Ltd. He provided two reports, the first dated 9 November 2004 and the second dated 19 January 2005. In his first report, Lieutenant Colonel Conant agreed that there were a series of sporting activities among members of units of the 1st ALSG (Australian Logistics Support Group). These included Australian Rules Football. However, he is aware that a number of previous claims have been made which have marked similarities to the one described by Mr Bullow, except that the game was soccer rather than Australian Rules Football. He said that the similarities included accounts of accusations of theft from personal belongings at various places near the playing field or from lockers by some South Vietnamese at the National Police Academy sports ground; brawling; the firing of various weapons in various directions; and the calming of the situation by a South Vietnamese officer. He was unable to locate any written record of such an event. In his second report, Lieutenant Colonel Conant states that his research indicates that brawls at sporting events and in the leave areas of Vung Tau itself were not uncommon. The sound of shots was not uncommon and was mostly attributable to drunken South Vietnamese soldiers, accidental discharges, or to South Korean soldiers who would shoot stray dogs at their base which was close to the 1st ALSG Base. In conducting his research Lieutenant Colonel Conant interviewed Mr T. Buick who was with the 2nd Advanced Ordnance Depot from 3 December 1968 to 19 November 1969. Mr Buick played soccer and he was also the unit’s soccer representative on the 1st ALSG Sports Committee that oversaw the conduct of sporting competitions. According to Mr Buick, soccer matches were played at various venues including the oval at the National Police Academy on Sundays. Australian Rules football was played at other venues, also on Sundays during the season. Mr Buick attended most if not all soccer matches played around Vung Tau. He has no knowledge of any riot or shooting incident at any game in 1969. Mr Buick did say that there may have been the occasional fracas on the sidelines, where locals were caught pilfering, but he was absolutely certain that no shots were ever fired.
40. We have also found a substantial problem with Mr Richard’s evidence. In his written statement, Mr Richards said that after the trucks were fired on, most members dived for cover while others gathered their weapons in case they were required to defend themselves. He stated that some of the members were arming their weapons to respond to the machine-gun fire. However, in cross examination, he said that the team members and the persons on the backs of the trucks did not take their rifles or weapons with them when they went to play football. He did not take a weapon with him. He said that the only weapons that were available were those carried by the driver and his shotgun. Perhaps more significantly, in about 2000, Mr Richards made a claim for anxiety disorder with alcohol dependency or alcohol abuse. He was examined by Dr N. Rose, and Dr G. D’Ortenzio. The only incidents described by Mr Richards as causing him concern during his operational service were rocket attacks. He made no mention whatsoever of the shooting incident at the Police Academy. If the event in fact occurred as Mr Richards said it did, it is inconceivable that he would not have mentioned that to either of the doctors who examined him for his claim. We are therefore of the firm view that although it is possible that there may have been a fracas on the sidelines, there was no firing of weapons as described by Mr Bullow.
CONCLUSION
41. Mr Bullow put forward three hypotheses which he said connected his war service with alcohol abuse and hypertension. The first hypothesis, being told about the death of Mr Archer, although temporally connected to his service, has no causative link. His claim based on this event cannot therefore succeed. As for the wet canteen incident, it does not fit any one of the factors required to be met in the relevant SoP for there to be a reasonable hypothesis connecting Mr Bullow’s alcohol abuse with the circumstances of his relevant service. Although the Police Academy event raises a reasonable hypothesis, we are satisfied beyond reasonable doubt that there is no sufficient ground for allowing Mr Bullow’s claim. The evidence does not support Mr Bullow’s account of what happened at the Police Academy. Given that his claim for alcohol abuse fails, so must his claim for hypertension which is based on excessive alcohol consumption.
42. The decision of the VRB made on 9 May 2005 was correct and should be affirmed.
I certify that the forty-two [42] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
Dr K. Breen, Member
(sgd) Ursula Noyé
ClerkDate of Hearing: 11 August 2006
Date of Decision: 25 September 2006
Counsel for the applicant: Mr G. Moore
Solicitor for the applicant Peter J. Liefman
Solicitor for the respondent: Ms J. McCulloch
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