Burke and Repatriation Commission
[2010] AATA 793
•15 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2294
VETERANS' APPEALS DIVISION ) Re MATTHEW CHARLES BURKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date15 October 2010
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Burke suffers from post traumatic stress disorder which is war-caused with effect from 10 September 2007. The Tribunal remits the matter to the respondent for assessment of the rate of disability pension.
..................[signed].......................
Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – peacekeeping service – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused
Veterans' Entitlements Act 1986 ss 68, 120(2), 120(3)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Delahunty v Repatriation Commission [2004] FCA 309
Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
Lees v Repatriation Commission [2002] FCAFC 398
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Hill [2008] FCA 50
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
15 October 2010 G. D. Friedman, Senior Member 1. Matthew Burke lodged a claim for a disability pension for post traumatic stress disorder (PTSD) as a result of his service in the Western Sahara region of Africa with a United Nations peacekeeping mission in 1993/1994. The respondent rejected the claim on the basis that he does not suffer from PTSD.
2. The issues before the Tribunal are:
· Does Mr Burke suffer from PTSD? If so:
· Is the condition war-caused?
LEGAL FRAMEWORK
3. Mr Burke served in the Australian Army from 7 July 1971 to 1 September 1996. From 13 November 1993 to 25 May 1994 he had peacekeeping service within the meaning of s 68 of the Veterans’ Entitlements Act 1986 (the Act) with the United Nations Mission for the Referendum in Western Sahara (MINURSO). The following disabilities have been accepted as war-caused:
· Torn left medial meniscus
· Ruptured extensor tendon right finger
· Lumbar spondylosis
· Sensorineural hearing loss right ear
Apart from the condition under review, Mr Burke suffers from sensorineural hearing loss left ear, which has not been accepted as war-caused. He is currently in receipt of disability pension at 90 per cent of the general rate.
4. Causation questions, where a veteran has rendered peacekeeping service, are addressed by applying the standard of proof in s 120(2) and s 120(3) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
5. The Tribunal is first required to determine to its reasonable satisfaction whether Mr Burke suffers from the claimed particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). In the circumstances of this case, where Mr Burke has rendered peacekeeping service, the issue of whether the diagnosed conditions were caused by peacekeeping service then is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82 at 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 …
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11 )…
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 …
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 … If the Tribunal is so satisfied, the claim must fail …
DOES MR BURKE SUFFER FROM PTSD?
6. In the Diagnostic and Statistical Manual of Mental Disorders (Fourth ed.) (DSM-IV) a diagnosis of PTSD requires that:
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others;
(2) the person’s response involved intense fear, helplessness, or horror
…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at 74:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.
7. In Hill v Repatriation Commission [2001] FCA 1775 von Doussa J stated at [30]:
Counsel for the applicant optimistically contended that the Tribunal misinterpreted the requirement of par (a)(ii) in finding that the adjective "intense" qualified "helplessness". Counsel suggested that the adjective only qualified "fear". I do not agree with that submission. In my opinion the Tribunal was correct in holding that the veteran's emotion whether it be of fear, helplessness or horror had to be "intense".
8. In Gerzina v Repatriation Commission [2003] FMCA 490 McInnis FM referred to von Doussa J’s comments and stated at [40]:
In my view, although it may be argued that the adjective "intense" superficially may only appear to qualify "fear", I do not accept that the adjective appearing at the beginning of those three terms is restricted in the manner proposed for the appellant in the present case. I do not accept that the words "helplessness" and "horror" cannot be the subject of the adjective "intense". In my view, having regard to the dictionary definitions it is quite possible for the helplessness and horror to be described by the adjective "intense". Although it may be suggested that helplessness to some extent appears to be an absolute term, it must be viewed in the light of the context of the DSM-IV and the condition of post-traumatic stress disorder which is sought to be diagnostically defined.
9. Mr Burke told the Tribunal that he was born in India where his father was a Sergeant-Major in the British Army. He came to Australia at the age of 15 and after completing Year 12 he worked for a printing company then as a clerk in the State Public Service before commencing National Service in July 1971. He explained that after initial training he was attached to the Royal Australian Army Service Corps and qualified as a driver, and was promoted to the rank of Lance Corporal in 1972. At the end of his two-year term he volunteered to remain in the army and was posted to the Royal Australian Corps of Transport, and was promoted to Corporal in 1974. He became a Sergeant in 1979 and Warrant Officer Class 2 in 1982 after serving on an exchange posting with the British Army in Germany in 1981. In 1987 he was appointed to the highest non-commissioned rank of Warrant Officer Class 1 and became Regimental Sergeant Major (RSM) in postings to Brisbane in Queensland and Puckapunyal and then Bandiana in Victoria. In 1991 he was awarded the Order of Australia Medal for service to the military forces.
10. In 1993 Mr Burke was sent to the Western Sahara where he took up duty as Force Sergeant Major of MINURSO which numbered 2700 personnel and he was in charge of forces from various countries. The role of the peacekeeping force was to maintain security between the Royal Moroccan Army (RMA) and Polisario (indigenous desert people) who had been in dispute for about 20 years. MINURSO was required to conduct a referendum which would allow the people of the Western Sahara to choose between independence and integration into Morocco. Australia’s involvement had lasted three years and had consisted mainly of signals personnel numbering about 225 who provided headquarters and communications support to the military component of the mission.
11. Mr Burke stated that there were two traumatic events during his service in Western Sahara that caused significant distress. The first was when he and his contingent of 45 Australians of the 5th Australian Service Contingent (5 ASC) arrived in Laayoune, Morocco on 16 November 1993 where the United Nations mission was based (the arrival event). He explained that prior to departure the contingent had been briefed on various aspects of the mission and he had understood that the contingent’s weapons would be loaded into the hold of the commercial aircraft for the flight to Singapore and the hold of the transport aircraft for the flight to Morocco, although he had missed part of the briefing due to other commitments. He said that on arrival in Laayoune the Australian personnel were unarmed. Prior to disembarkation a United Nations representative and an armed RMA soldier boarded the aircraft and a heated discussion ensued between the soldier and the contingent’s commanding officer, although the soldier was speaking Arabic and/or French and Mr Burke was unable to understand the conversation. He said that the soldier was aggressive and was pointing his rifle at the passengers, including him. He stated that the incident was frightening and distressing, particularly as the Australians were unarmed, and he feared that the soldier might discharge his weapon.
12. Mr Burke said that after a number of minutes he and the commanding officer of the contingent disembarked, and the argument continued for a further ten minutes on the tarmac, where several other Moroccan soldiers raised their weapons. He said that he felt vulnerable and terrified, not only because he was unarmed and had not been briefed to expect a loaded weapon to be pointed at him or at other Australian personnel, but he was concerned that the Moroccan soldiers might deliberately or accidentally discharge their weapons, although this did not eventuate.
13. He conceded in cross-examination that his recollection of the route and flights involved in travelling to Laayoune was incorrect, and stated that he had been travelling for about 36 hours, so was tired and disoriented. He was seated in the body of the aircraft with the other 5 ASC personnel. He also agreed that he made no complaint about the incident and that there was no identifiable effect on his performance in the Western Sahara arising from the arrival event. Mr Burke acknowledged that his account of the event differed from his evidence to the Veterans’ Review Board (VRB), and said that he had difficulty recalling accurately details of events that took place more than sixteen years ago.
14. Mr P Lambert told the Tribunal said that he was the Commanding Officer of 5 ASC and had travelled to Morocco with the advance party before the rest of the personnel arrived in Laayoune in November 1993. He said that he was present when the contingent arrived and recalled that the soldiers of the RMA were armed with rifles but were not aggressive. Mr Lambert stated that to his knowledge no hostile or traumatic incidents occurred at the airport or during the term of the 5 ASC mission that were brought to his attention or reported to him by headquarters in Australia. He confirmed that on 2 March 1994 he had written a letter of commendation to Mr Burke’s unit commander in Victoria praising his performance with MINURSO as outstanding, and he stated that he had no cause to be concerned about Mr Burke’s performance at any time.
15. Mr T Prudden told the Tribunal that he was the Second-in-Command of 5 ASC and travelled with the contingent to Laayoune on 16 November 1993. He recalled that from early in the planning process he understood that members of the contingent would not be armed during the mission. He described the arrival at Laayoune as uneventful, and stated that he did not observe any confrontation with members of the RMA either inside the aircraft or on the tarmac. Mr Prudden believed that no such incident occurred, although he conceded that his interpretation might not be the same as other more experienced soldiers. He said that he worked closely with Mr Burke and did not notice anything unusual about his performance.
16. In reports dated 10 June 2008 and 8 February 2010 Mr P Knight, researcher on behalf of Writeway Research Service, stated that there was no possibility that a contingent of Australian service personnel would be able to travel across the world on commercial flights with weapons and ammunition, even in the cargo hold, and that Mr Burke must have known this. Mr Knight advised further that the transport aircraft carrying 5 ASC to Laayoune did not have a separate cargo or below-deck hold, so any weapons or ammunition on the aircraft would have accompanied the passengers and been visible. He said that the UN representative who met the aircraft on arrival with the RMA soldier was likely to have been a member of the 5 ASC advance party or another Australian soldier from 4 ASC. Mr Knight noted that from discussions with Mr Lambert and Mr Prudden, neither could recall any particular problems with the arrival of the main body of 5 ASC. He emphasised that the RMA was known for its aggressive attitude and that all previous contingents were aware of this. He added that Mr Burke would have known that this aggressive attitude …had been no more than a nuisance.
17. Under cross-examination Mr Knight agreed that his conclusions about matters that Mr Burke would have known about were based on assumptions. He also agreed that he had no actual knowledge of the extent to which Mr Burke had been briefed before arriving in Laayoune.
18. The second event occurred in March 1994 when Mr Burke was accompanying the Commander of MINURSO on one of the regular visits to eleven United Nations sites in the desert. Mr Burke stated that these visits were made by helicopter and fixed-wing aircraft. On the particular visit (the helicopter event) he was travelling in a United States Bell 212 helicopter which also contained the civilian pilot, the Commander of MINURSO, an aide and another passenger. About halfway into the 20 minute journey the helicopter encountered a severe sandstorm. Visibility was virtually zero. Mr Burke said that he was seated in the rear of the aircraft, and the pilot showed signs of concern, and while hovering in preparation for landing he asked the passengers to keep a look out for the white tents at the landing site. He said he had never flown during a sandstorm and was frightened that the helicopter was going to crash and that everyone on board would be killed. The helicopter was shaking. Eventually, after a period that lasted perhaps 35-40 minutes, the helicopter landed safely after a rough descent due to the high winds. He said that he had no idea why the pilot had not tried to ascend above the sandstorm.
19. Mr Burke explained that although no-one was injured, the aircraft required maintenance, including the removal of sand, before the return journey. He said that he was terrified to travel in the helicopter or in any other aircraft after the incident. He explained that he did not make a formal report, as this was the responsibility of others, and that he did not wish to talk about his fears with Australian personnel after the incident because of his position as Force Sergeant Major, so he kept his feelings to himself. He said that after the incident he became apprehensive, resumed heavy smoking and became a heavy drinker. He became short-tempered, irritable and moody, and was anxious to leave the Western Sahara and return home, which he did several weeks later at the conclusion of the mission.
20. Under cross-examination Mr Burke agreed that after the incident he began to drink heavily, but denied that this affected his work performance in the several weeks before returning to Australia as he was physically fit and managed to continue his normal duties. He said that before his posting to the Western Sahara he had flown only once in a helicopter, as his military experience had involved mainly road transport.
21. In his reports Mr Knight stated that strong winds and sandstorms occur regularly in the Western Sahara and can last for a few hours or a few days. This caused a number of problems for MINURSO regarding visibility and the ability to navigate and arrive at destinations in a timely manner. Mr Knight could find no direct reference to the incident, but agreed that Mr Burke’s presence on the flight, together with concern for his safety, was likely. Mr Knight also stated that a single pilot, when confronted with minimal visibility, has to concentrate on the aircraft’s instruments to ensure the helicopter continues to fly straight and narrow. In such a situation the pilot would probably request passengers to keep a look out for the destination.
22. Mr Knight stated that sandstorms encountered in the Western Sahara do not usually rise very far off the surface of the terrain, and suggested that helicopter pilots would not have much difficulty climbing above the storm in such circumstances. Under cross-examination he agreed that whether this would have been possible during the helicopter event depends on all the circumstances, including the weather and wind conditions, the nature of the sandstorm, the knowledge and experience of the pilot, the altitude of the helicopter and the condition of the aircraft.
23. Mr Burke said that by the end of the deployment in Western Sahara he was anxious, had difficulty sleeping, and was experiencing nightmares and flashbacks, particularly concerning the helicopter event. He continued to drink and smoke heavily. He was moody and short-tempered. In spite of these symptoms he said that he could not complain about his feelings at the time because of the culture in the army and also because of his senior non-commissioned rank. He said that he returned to duty at Bandiana until 1996, when he transferred to the Army Reserves. He was employed in a number of civilian positions in administration and security in the Albury/Wodonga area, and currently works for a company that provides employment for disabled people.
24. With regard to his psychological state Mr Burke emphasised that since leaving the Army he has been agitated, irritable and restless. He said that after his service in the Western Sahara he did not realise that he was suffering from a psychiatric condition, but following friction in his marriage and an ultimatum from his wife, in 2005 he sought treatment and was referred to the Vietnam Veterans’ Counselling Service and has been seeing Dr C Percival, psychiatrist, every two or three months. He is taking prescribed medication. He said that he is lethargic, lives almost as a recluse, and does not enjoy socialising with other people. News reports of aircraft crashes and bush fires upset him, and he is particularly anxious in hazy or smoky weather conditions. He has recurrent nightmares, and his symptoms have placed a strain on his family and his relationships with work colleagues and staff under his supervision.
25. The Tribunal had before it reports from a number of psychiatrists who have examined Mr Burke. In a report dated 11 May 2010 Dr N Strauss, consultant psychiatrist, diagnosed PTSD and stated that the arrival event and the helicopter event were relevant to Mr Burke’s psychiatric illness. Dr Strauss described Mr Burke as a genuine individual who coped well with his army career for a number of years but the experiences in Africa were upsetting for him. Dr Strauss said he had no reason to doubt the claims made, and concluded that both events were life-threatening and brought about the development of PTSD. He said that the range of symptoms support the diagnosis.
26. In a report dated 1 October 2009 Dr M Epstein, consultant psychiatrist, diagnosed PTSD based on an account of the two stressful events. Dr Epstein stated that Mr Burke persistently re-experiences the helicopter event with recurrent intrusive distressing recollections, recurrent distressing dreams, flashbacks and distress with exposure to anything that reminds him of the incident. He added that Mr Burke was an extremely experienced and tough soldier who displayed no evidence of behavioural disturbance prior to his tour of duty in the Western Sahara, but after that service showed a major change in behaviour manifested by significant psychiatric symptoms that have ultimately led to a diagnosis of PTSD by Mr Burke’s treating psychiatrist. Dr Epstein concluded that PTSD appears to have been caused by Mr Burke’s service in the Western Sahara. In oral evidence Dr Epstein stated that Mr Burke is a proud man who would not willingly admit to weaknesses or vulnerability.
27. In a report dated 27 February 2008 Dr Percival stated that Mr Burke was referred to him in 2007 as a result of a nervous condition. Dr Percival described the arrival event and the helicopter event as extremely stressful, plus the ongoing stress of travelling in areas that contained large numbers of mines, although no incidents involving mines occurred. Dr Percival diagnosed PTSD as a consequence of the helicopter event, and arguably so by the experience of being held at gunpoint by Moroccan soldiers. Dr Percival stated further that the stress involving the threat from mines contributed to the development of Mr Burke’s psychiatric morbidity.
28. Under cross-examination Mr Burke agreed that he had not informed the psychiatrists of his four marriages and three divorces between 1973 and 1986, or an assault on him in 2001. He said that these events had not caused significant trauma, and that although a son had died on the day of his birth in 1978, he grieved over the death and did not suffer lasting distress. He also conceded that he had not been completely truthful in 1996 when answering questions during a medical examination as part of the discharge process, and explained that he did not wish to embarrass himself in front of junior army personnel by admitting to drinking or psychological problems.
29. In a written statement Mrs M Burke said that she married Mr Burke in 1986 and that prior to service in Africa he was a fun-loving, outgoing person. She stated that he changed, for the worse, since returning from the Western Sahara in 1994. She said that he became intrusive and angry, which impacted on her and the children. She noted that Mr Burke has had many distressing thoughts and recollections about his traumatic experiences in Africa, including being held at gunpoint and the sandstorms in which he travelled by helicopter. She said that on windy or dusty days he becomes more restless, agitated and anxious. He has disturbed sleep patterns and wakes with disturbing thoughts.
30. In Stoddart v Repatriation Commission (2003) 197 ALR 283 Mansfield J stated at 296:
In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
31. In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court approved the decision in Stoddart. The Court held at 498-499:
It would be open to the AAT to conclude the situation involving MrWoodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to MrWoodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of "experiencing a severe stressor" in the SoP in relation to the incident on patrol.
32. In assessing the claimed stressors, the Tribunal acknowledges that the events occurred more than 16 years ago and that recollection of details is difficult. In relation to the arrival event Mr Burke’s version of the circumstances was at times inconsistent with accounts given to the VRB and to medical practitioners. The Tribunal accepts that he was apprehensive when the RMA soldier boarded the aircraft and engaged in a heated discussion armed with a rifle in the presence of Mr Burke and the rest of the Australian contingent, and that the sight of armed soldiers on the tarmac was confronting to unarmed personnel of 5 ASC. The Tribunal accepts the evidence from Mr Lambert that no hostile incidents were reported to him, and from Mr Prudden who was on the aircraft and did not recall any overtly aggressive soldiers pointing weapons at Australian personnel either on the aircraft or on the tarmac. There was no evidence corroborating Mr Burke’s version of events, no official report and no apparent impact on Mr Burke’s ability to perform his duties with MINURSO, as confirmed by Mr Lambert’s letter of commendation dated 2 March 1994.
33. Although Dr Strauss and Dr Epstein believed the incident to have caused distress to Mr Burke, the Tribunal prefers the conclusion by Dr Percival, who was not convinced that the incident caused the requisite distress. In all the circumstances the Tribunal is not reasonably satisfied that the arrival event was traumatic as defined in DSM-IV or that Mr Burke’s response involved intense fear, helplessness or horror.
34. In relation to the helicopter event, the Tribunal takes into account that the history recorded by the psychiatrists and given to the Tribunal by Mr Burke is largely consistent, and the weather conditions described by him in that part of the Western Sahara are consistent with the research carried out by Mr Knight with regard to sandstorms and the likelihood that Mr Burke was present on that particular flight. Given that the other persons present were from countries other than Australia it is not surprising that there is no corroborating evidence, and the Tribunal accepts that any report of the incident would probably have been made by the Commander of MINURSO or the helicopter pilot, rather than by Mr Burke.
35. The Tribunal accepts Mr Burke’s evidence, as recorded by Dr Strauss, Dr Epstein and Dr Percival, that he had not experienced flying during a sandstorm prior to the incident. He had travelled only once in a helicopter before his posting to the Western Sahara. When giving evidence about the helicopter event he broke down several times, and the Tribunal agrees with Dr Epstein that Mr Burke is a proud man who has been reluctant to show his vulnerability and has tried to continue his normal activities despite the impact of the event on his psychological state. The Tribunal accepts Mr Burke’s explanation for not being completely truthful during the medical discharge process, and considers him to have given credible evidence to the best of his recollection. There is no material before the Tribunal to suggest that the helicopter pilot could have avoided the sandstorm by increasing the aircraft’s altitude above the storm, or that Mr Burke was familiar enough with sandstorms or the capability of the helicopter to even consider that possibility at the time and lessen his fear.
36. The three psychiatrists were firmly of the view that Mr Burke suffers from PTSD as a result of his service in the Western Sahara. Dr Epstein and Dr Strauss have particular experience and expertise dealing with psychological problems suffered by veterans, including the reliability of history of events given by veterans, and the Tribunal places considerable weight on their evidence. The Tribunal also takes into account that the evidence by Mr Burke’s wife supports the view that his emotional problems commenced following his service in Africa, and that Mr Burke abandoned a successful career as a highly decorated and respected soldier who was destined to be appointed to more senior positions within the army but left within three years of his service in the Western Sahara. The Tribunal notes further Mr Burke’s description of his symptoms which include flashbacks, irritability, anxiety and difficulty in maintaining relationships with family and work colleagues. This is consistent with the conclusions reached by the psychiatrists and in his employment history following his discharge from the army.
37. In all the circumstances the Tribunal is reasonably satisfied that during the helicopter event Mr Burke experienced or was confronted with an event that threatened death or serious injury, and satisfies paragraph (1) of the definition of PTSD in DSM‑IV. The Tribunal also accepts his evidence that because of zero visibility, the noise and shaking of the aircraft and the pilot’s plea to the passengers for assistance in locating the landing site, plus the lengthy time taken to land the helicopter, he was terrified that he would die. In view of the consequences of the incident the Tribunal finds that his response involved intense fear, helplessness or horror, and he satisfies paragraph (2) of the definition of PTSD in DSM-IV. The Tribunal is reasonably satisfied that the helicopter event was objectively and subjectively traumatic. Therefore the Tribunal concludes that Mr Burke was exposed to a traumatic event and a response of the required intensity, so the Tribunal finds that Mr Burke suffers from PTSD.
IS PTSD WAR-CAUSED?
38. In relation to the first step from Deledio, after considering evidence from Mr Burke and the psychiatrists about his PTSD and peacekeeping service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Burke. Therefore he satisfies the first step.
39. In respect of the second step from Deledio, there is a SoP in force, being SoP Nº 5 of 2008 concerning PTSD. Therefore Mr Burke satisfies the second step.
40. In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Full Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373 the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
41. Mr Burke described the helicopter event as an incident suggesting that he satisfied the relevant factor in SoP Nº 5 of 2008. The Tribunal has considered all the material, including the evidence from Mr Burke, the psychiatrists, Mrs Burke and Mr Knight, and considers that the material points to the hypothesis linking Mr Burke’s peacekeeping service with his PTSD. Therefore Mr Burke satisfies the third step.
42. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Burke’s PTSD was due to his peacekeeping service within the meaning of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. Mr Burke’s claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
43. Factor 6 in Instrument Nº 5 of 2008 provides:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
44. There is no definition of the term clinical onset in the SoPs or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms. Although none of the psychiatrists addressed the question of clinical onset, all noted that Mr Burke did not seek treatment until about 2005, and all concluded that the onset of PTSD occurred as a result of his service in the Western Sahara. The Tribunal finds that Mr Burke would have attracted a diagnosis of PTSD if he had been assessed psychiatrically after this service, so clinical onset occurred after the peacekeeping service in Africa in 1993.
45. In respect of the word stressor the Tribunal takes into account that in Delahunty v Repatriation Commission [2004] FCA 309 the Federal Court of Australia stated at [27] and [28]:
27 The term "stressor" denotes something which leads to stress. It is inherent in the notion of "stress" that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. …The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
28 There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.
46. For reasons given in relation to whether Mr Burke suffers from PTSD, the Tribunal accepts his evidence, supported by the evidence from the psychiatrists and Mrs Burke, that the helicopter event was an identifiable and objective occurrence that took place as described by Mr Burke. The Tribunal accepts that Mr Burke, who had limited experience of travelling in helicopters and had not experienced a situation in which he was travelling in such an aircraft during a sandstorm, subjectively felt substantial distress, and feared that the helicopter may crash and he would be killed. The Tribunal is satisfied that the helicopter event was a life-threatening event that constitutes a category 1A stressor that occurred before the clinical onset of PTSD. Consequently Mr Burke satisfies factor 6(a) of SoP Nº 5 of 2008 and satisfies the fourth step from Deledio, and his condition of PTSD is war-caused.
DECISION
47. The Tribunal sets aside the decision under review and substitutes a decision that Mr Burke suffers from post traumatic stress disorder which is war-caused with effect from 10 September 2007. The Tribunal remits the matter to the respondent for assessment of the rate of disability pension.
I certify that the forty-seven [47] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior MemberSigned: .......................[signed]........................................
Associate Grace HorzitskiDates of Hearing 6 and 7 October 2010
Date of Decision 15 October 2010
Counsel for the Applicant Ms A. McMahon
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr G. Purcell
Solicitor for the Respondent Advocacy Section, Department of Veterans’ Affairs
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