Campbell and Repatriation Commission
[2004] AATA 127
•11 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/289
VETERANS' APPEALS DIVISION ) Re NEIL WILLIAM CAMPBELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date11 February 2004
PlaceBrisbane
Decision The Tribunal therefore sets aside the decision under review and in substitution therefore determines that the veteran suffers from war-caused alcohol dependence and alcohol abuse with effect from 5 April 2001.
...................(Sgd)......................
IR Way
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/289
DIVISION
)
Re NEIL WILLIAM CAMPBELL Applicant
And
REPATRIATION COMMISSION
Respondent
ORDER TO AMEND DECISION
Tribunal Mr I R Way, Member Date4 June 2004
PlaceBrisbane
WHEREAS the Tribunal made a decision in this matter on 11 February 2004, and it has come to the Tribunal’s attention that there were errors in that decision;
AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the errors with the least cost and inconvenience to the parties;
THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:
1.the word "expressing" in paragraph 49 of the Tribunal's decision be replaced with the word "experiencing".
MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether applicant’s conditions caused by his war service – PTSD – alcohol dependence or alcohol abuse – diagnosis – whether applicant suffered a severe stressor – whether reasonable hypothesis established
Veterans’ Entitlements Act 1986, ss9, 120, 120A, 196A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
Mr I R Way, Member 1. This is an application by Neil Campbell for review of a decision of the Repatriation Commission dated 19 July 2001, affirmed by the Veterans’ Review Board on 21 January 2001, which determined that Mr Campbell does not suffer from war-caused alcohol dependence or alcohol abuse, within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Act 1975 (T1 – T6) and other documentary evidence as follows:
§ A1 Report of Dr Grotowski dated 19 November 2002
§ A2 Report of Dr Grotowski dated 25 March 2003
§ A3 Statement of Applicant dated 9 August 2002
§ A4 Statement of Applicant (undated and unsigned)
§ A5 Statement of James S Booth dated 12 April 2003
§ A6 Affidavit of Major Cooper dated 1 September 2003
§ A7 Letter from Major Cooper to Streeting Haney Lawyers dated 18 September 2003
§ A8 Handwritten notes of Leon Cooper (undated)
§ R1 Report of Prof McCarthy dated 20 March 2003
§ R2 Report of Dr Mulholland dated 12 February 2002
§ R3 Report of psychologist examination dated 19 February 1975 – entry to Army
3. The applicant was represented by Mr R Clutterbuck and gave oral evidence. The respondent was represented by Mr B Williams. Dr P Mulholland, psychiatrist, and Major L Cooper (Rtd) gave oral evidence. Evidence was given by telephone by Dr Grotowski, psychiatrist, and Mr P Booth.
4. The applicant was born on 17 November 1943 and served in the Australian Army from 17 February 1961 to 1 March 1981. Included in his service are two periods of operational service in South Vietnam (SVN), from 5 November 1969 to 26 November 1969 and from 7 April 1970 to 2 May 1970.
5. The applicant’s accepted service related disabilities are:
§ Bilateral Sensorineural Hearing Loss
§ Bilateral Tinnitus
§ Anxiety Disorder (eligible for treatment – not service related)
His non-service related disabilities are post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse.
6. There is no dispute between the parties and the Tribunal accepts that this matter should proceed in respect to the applicant’s operational service in SVN and that his defence service is of no relevance.
7. The hypothesis put forward by the applicant is that the applicant experienced stressors during his service in SVN such that he developed an alcohol habit resulting in alcohol abuse or alcohol dependence. The questions before the Tribunal in this matter are:
§ Does the applicant suffer from alcohol abuse or alcohol dependence;
§ If so, when was the clinical onset of any such abuse or dependence; and
§ If the applicant suffers from alcohol dependence and/or alcohol abuse, are these conditions war-caused.
Legislative Framework
8. The relevant provisions of the Act are 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;…”
9. The relevant provisions of the Act relating to the appropriate standard of proof are 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.
…
(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.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“196B Functions of Authority
…
(2)If the Authority 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:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)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 that service.”
11. The RMA has, pursuant to section 196B(2) of the Act, determined a SoP in respect of alcohol dependence or alcohol abuse and it is common ground between the parties and the Tribunal accepts that the relevant SoP in this matter is Instrument No 76 of 1998.
12. Instrument No 76 of 1998 relevantly states:
“Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
…
Definitions
“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 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;
Concessions by the Respondent
13. At the hearing, the Tribunal was presented with detailed psychiatric medical opinions both in writing and orally from Dr Grotowski and Dr Mulholland about the applicant’s alcohol consumption. The Tribunal also had probative assistance in respect of the applicant’s alcohol consumption from a retired Army officer, Major Cooper, who, as a serving officer, knew the applicant during the relevant period of the applicant’s service.
14. At the conclusion of the taking of evidence the respondent conceded that the applicant was suffering from alcohol dependence and alcohol abuse with clinical onset in 1970/71.
15. In light of this concession and after careful consideration of all of the material before it the Tribunal accepts the respondent’s concession. In arriving at this view, the Tribunal is mindful that the evidence of both psychiatrists, Dr Grotowski and Dr Mulholland, which the Tribunal accepts, conformed to this view; and that the respondent’s concession was entirely consistent with the evidence of Major Cooper, which the Tribunal also accepts.
16. The Tribunal therefore finds that the applicant suffers from alcohol abuse and alcohol dependence with a clinical onset in 1970/71. In so finding the Tribunal has taken the view that further to what has been said above, it is not necessary to set out in these reasons for decision the details of the evidence of both doctors and Major Cooper, the principal aspects of their opinions and evidence being covered in the section 37 documents and Exhibits A1, A2, A6, A8 and R2.
17. The crucial issue then is whether the applicant’s hypothesis fits the template of the relevant SoP and specifically in this case whether factor 5(b) of Instrument 76 of 1998 exists, namely the applicant experienced, during his service in South Vietnam, a severe stressor within the meaning of that term in the SoP (as set out in paragraph 12 above).
Applicant’s Evidence about Stressors
18. The applicant told the Tribunal that he was a Royal Australian Artillery (RAA) Sergeant in charge of a small Electronic Velocity Analyser detachment which was despatched to Vietnam on two occasions for the calibration of 105 mm Howitzers in 1 Field Regiment RAA.
19. He said that equipment used was carried in a Land Rover and trailer and that in addition to himself, the detachment comprised two gunners and a liaison Senior NCO.
20. He said that on the first trip to Vietnam he travelled by charter civilian jet and on landing at Tan Son Nhut Airport (the main airport at Saigon) he saw the smouldering remains of a Chinook helicopter which he said had blown up, killing the crew. He said he was taken from Saigon to the 1 Australian Task Force base at Nui Dat by Caribou aircraft and billeted at the base with HQ Bty 1 Fd Regt. He said his team was required to travel to various Fire Support Bases (FSBs), to calibrate the Howitzers and in respect of one such trip to FSB Discovery, stated:
“1.In April 1970 while working in Vietnam, I was travelling to a fire support base with 3 members of my team in a chinook chopper. On board was a land rover and trailer housing the calibration equipment.
2.On approach to the fire support base I was looking out the port hole window when I witnessed an explosion and fire at the fire support base. I was terrified, my feelings frozen. I thought the fire support base was under attack.
3.I assisted the road (sic) master in unloading the land rover and trailer during the approach to the fire support base to ensure as little time as possible for the chinook to be on the ground.
4.The chinook landed some distance from the barb wire perimeter, explosions and fire. I was frightened and feared for my safety as we attempted to unload the land rover trailer from the chinook. The ramp did not go down far enough to enable the vehicle to exit so we had to dig under the ramp. It was hot and I was panicking.
5.When the equipment was offloaded, Mr Hugh Sparkes guided us from the chinook to inside the perimeter.
6.On 21st April 1970, an ammunition drop went dreadfully wrong by friendly fire and exploded within 200 metres. I was petrified and thought I was going to be killed.”
21. In a subsequent statement (Exhibit A2) the applicant stated:
“I have done some research into it and am able to provide the following details firstly the dates of the incident should be during Nov 1969, the task in April 1970 was very very similar - hence my mix up in dates.
…
The area of the ammunition drop was about 100-200 metres from the barbed wire perimeter of “FSB discovery”. The area was clear of foliage.
My research has revealed that the ammunition was dropped by Caribou aircraft and consisted of 105mm ammunition in an unboxed state. This means the complete rounds were protected only by the cylinder housing them. The impact caused tumbling, break up and live and explosions.”
22. In his oral evidence the applicant told the Tribunal that he thought that the helicopter landed some 300-400 metres outside the perimeter wire of the FSB and that the exploding ammunition was located some 200-300 metres from where the helicopter landed. He said that his team had carried out drills in loading and unloading the Land Rover and trailer from the helicopter as there was a very small clearance in the rear hatch of the helicopter and also he had particular duties in removing tie down devices. He said that on landing, because of uneven ground, they had to use shovels to dig out under the helicopter rear ramp so it could lower sufficiently to off-load the vehicle and trailer. He said that during this operation the Chinook helicopter did not turn off its rotors and that the extraction would have taken about ten minutes.
23. It was the applicant’s evidence that he believed the base was under attack and that he had no communication devices to liaise with the load master of the helicopter as to whether there was an enemy attack or what was causing the fires and explosions. He said his team was guided into the base proper and it was some time after they were inside the wire that he became aware of what was actually happening.
24. The applicant described his feelings on first seeing the fires and explosions as frightening and threatening, that he froze for a minute, was numb and thought he was being dropped into the thick of it. The applicant said that they spent some time calibrating the guns at FSB Discovery, slept in the gun pits while at the base, and while clearing patrols were conducted in close proximity outside the wire, he was not aware of any threat of enemy action and they left the base on the completion of calibration without further incident.
25. The Tribunal notes that Associate Professor McCarthy’s research (Exhibit R1) confirmed the incident of 105 mm ammunition being unsuccessfully dropped at FSB Discovery at the time the EVA detachment was present. Major Bertram (the BC of 101 Fd Bty at the time) is quoted as recording:
“FSPB Discovery [was] occupied during October and November. This operation was reasonably quiet from a gunner’s point of view, and for the first time in the tour, boredom became apparent. This was overcome by numerous games of volleyball, patrols in the near vicinity of the fire support base… During this operation, the battery had its first experience with the electronic velocity analyser for the calibration of its guns. It was at FSPB Discovery that a Caribou unsuccessfully dropped some 105mm ammunition and this caused much consternation in the fire support base due to shrapnel from exploding shells whistling through the rubber trees.”
26. Furthermore, Mr J Booth also confirmed the incident (Exhibit A5 and evidence by telephone). Mr Booth’s interaction with the applicant at FSB Discovery did not involve assistance with unloading of the Chinook helicopter and while he spoke to the applicant about gun histories in respect of their calibration, he could not recall discussing with the applicant the causes of the fires and explosions. Mr Booth told the Tribunal that the exploding ammunition and fires were within their own area of control but he could not provide any details of exactly where the rounds had landed.
27. The Tribunal also notes that at the time of the incident at FSB Discovery in 1969, the applicant had served in the Army from 1961 for nearly nine years, that he had served in FARELF with 103 Fd Bty (RAA), attached to 6 Fd Regt (RA) for approximately nine months in 1963, that he had steadily progressed by way of qualification and experience in regimental duties and was promoted to temporary Sergeant in February 1968 and Sergeant in March 1968 (T4).
28. The applicant described a second stressful incident as follows:
“A further incident which occurred in May 1970 when travelling back to Australia in a C130 Hercules. I assisted with the loading and securing of the land rover, trailer and calibration gear onto the aircraft in preparation for the journey home.
The load master required assistance in loading a long silver metal box onto the aircraft. The load master informed me it was the body of an Officer from our Battalion who was blown up by a mine. The coffin was secured to the floor towards the rear of the aircraft near the ramp hinges. My seat on the plane was right next to the coffin approximately 2 metres. I was confronted with the death of this soldier until we landed at Butterworth in Malaysia. I did not speak to anybody while on board the plane, I sat in silence. The guilt of surviving was overwhelming, I felt nauseous and experienced pins and needles.
On arrival at Butterworth, I attended the Sergeant’s Mess where I consumed an excessive amount of alcohol. It was the first time in my life I had ever been drunk.”
29. In his oral evidence the applicant told the Tribunal he had assisted in putting the coffin into the C130, that the trip took approximately 6 hours, that the noise of the aircraft made communication impossible and that he sat opposite the coffin feeling helpless and feeling that the dead soldier was talking to him. Furthermore, he said that while he did not feel in danger he felt numb, uncomfortable, insecure, felt guilty that he was coming back, felt alienated and that it all brought back to him the threats he had faced in Vietnam. When asked why he did not move to a forward position in the plane away from the coffin he said he did not know.
30. The other stressor referred to by the applicant was his fear of being blown up by a mine when riding in vehicles in South Vietnam. He described a number of trips where he was travelling between bases by vehicle, sitting in the back of trucks with “shotgun” guards and wearing or sitting on flak jackets. He said there were no actual mine incidents and his fear arose from being advised that mines were a threat.
Medical Evidence
31. Dr Grotowski, consultant psychiatrist, first saw the applicant on 30 April 2001 on referral by his GP. She reported that at that time the applicant “described one incident, which has been a major cause for concern for him involving a corpse. He is continuing to experience flashes of memories from his time in the war. Recent problems are physical symptoms of aches and pains, itch, generalised insomnia, some memories, some anxiety, feeling of being blank in the head”. (T4/9)
32. Dr Grotowski continued to see the applicant and again reported on 22 July 2001 as follows (T4/24):
“He describes constant threat and danger from the Vietcong, including mortar fire and mines. He was also driving along in vehicles on roads where mines and sniper fire were an ongoing possibility. He returned to Australia in 1969 and then went back to Vietnam in 1970. He describes returning to Australia in an [sic] RAAF Hercules within 2 meters of a coffin carrying a dead soldier. He describes feeling distressed and anxious, feeling guilty that he had survived and the other person had not. He claims that on return from that trip he immediately went into the Mess and became heavily intoxicated for the first time in his life.
…
He describes his psychological state during his time in Vietnam as constant terror and fear that he was going to die, anxiousness and the belief that he had no future”
33. Dr Grotowski, in her report dated 19 November 2002 (Exhibit A1) stated:
“As previously stated my report to Repatriation Medical Authority Mr Campbell gives a history of problematic drinking as a direct result of being in a plane with a coffin. He states that he had never been drunk until then, that he became heavily intoxicated for his first time in his life after being in that plane and that he has had problems since, but he saw himself then on return to services as being in danger. Mr Campbell certainly perceived that he was in danger of losing his life, that he felt guilty and distressed at that time. He also describes other events when he felt his life was in danger, including being involved in mortar fire and driving where land mines were and with sniper fire occurring. He described feeling distressed and anxious and feeling guilty that he survived, but also terrified for his own life much of the time.”
34. On 25 May 2003 (Exhibit A2) she said:
“His psychiatric disability is that of alcohol abuse and dependence and the history he gives would certainly establish a causal link between his problem drinking and his duty; specifically the events he describes when he was in the plane with the coffin and that his first episode of drinking to oblivion occurred after this.”
35. In her evidence by telephone, Dr Grotowski, when asked what were the stressors she believed contributed to the applicant’s alcohol problems, referred to the incident at FSB Discovery, the coffin incident and the threat of mines. She said that these events combined were quite sufficient to cause his drinking problem and that she believed the applicant thought his life was at risk at Vietnam. When questioned about the FSB Discovery incident, Dr Grotowski agreed that she had no military background that would assist her in fully understanding the circumstances of this event. However, she said the applicant had told her on several occasions (the first being in July 2001) about believing that the FSB was under attack at the time and that she considered this event to be a severe stressor.
36. The Tribunal notes that Dr Grotowski makes no specific mention of the incident at FSB Discovery in any of her written reports.
37. Dr Mulholland, psychiatrist, interviewed and examined the applicant on 4 February 2002 and provided a written report dated 12 February 2002 (Exhibit 2).
38. In his written report Dr Mulholland opined:
“This man gives a history that his alcohol consumption dates back to one specific event namely travelling in the Hercules with the coffin of a dead officer. Such an event would not constitute the type of psychosocial stressor which would precipitate an individual into a lifetime of alcoholism. It is readily appreciated that it would be upsetting at the time. In any event such single cause factors are rarely, if ever, the true cause of long term chronic alcoholism.”
39. In his oral evidence Dr Mulholland said that he found no severe stressors given to him by the applicant. He said that the applicant had not presented to him with concern about the FSB Discovery incident, the main incident discussed being the coffin incident.
40. When all of the incidents now relied on by the applicant were put to Dr Mulholland he said that collectively they would heighten ones arousal and be a salutary reminder of one’s mortality. He expressed the view that while he thought the applicant’s reaction was greater than what might be regarded as normal, he appreciated that subjectively what was in the applicant’s own mind might be categorised as a severe stressor. He said he was not sure if the events, as described, viewed objectively would be severe stressors but went on to say that he did not think they were. Dr Mulholland confirmed that DSM IV, while setting out diagnostic criteria for alcohol dependence or alcohol abuse, is silent in respect of any definitions of stressors leading to such a condition.
Submissions and Consideration
41. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 s196B(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 s196B(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 s120(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.”
42. The Tribunal accepts that the material before the Tribunal points to a hypothesis connecting the applicant’s alcohol dependence and alcohol abuse with his service in South Vietnam in 1969/70 and that there is a relevant SoP, namely Instrument No 76 of 1998.
43. For the applicant’s hypothesis to be consistent with the template in this SoP, the applicant, during his service in South Vietnam, must have experienced a severe stressor within the meaning of that term as defined in the SoP and as set out above in paragraph 12.
44. In Stoddart v Repatriation Commission [2003] FCA 334 his Honour Justice Mansfield held:
“The language of the definition of experiencing a severe stressor caters for a person experiencing, or being confronted with, an event involving the threat – of death, serious injury, or harm to physical integrity – if the event said to constitute that thread – judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event – is capable of and did subjectively convey the threat.”
45. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
46. In Repatriation Commission vStoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by His Honour Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J namely “an indication of probable evil to come; something that gives indication of causing evil or harm”, and furthermore stated that the description “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
47. Also significant is the Full Court’s observation, in addressing what can be described as routine normal service duties, “that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time”.
48. It was submitted for the applicant that he both witnessed and was in fear of serious injury or death when landing by helicopter at FSB Discovery. Furthermore, it was contended that the applicant’s experience of time spent with a coffin on the Hercules aircraft was a further significant stressor; as was his fear of death and the highlighting of his own mortality on moving by road transport in operational areas where it was likely he would be subject to injury or death by explosion of a mine. In view of this it was submitted that the applicant satisfied the necessary tests and criteria as set out in the relevant SoP and that the matter ought to be determined in favour of the applicant.
49. The respondent submitted that while there is a subjective element required to “experience” a severe stressor, this does not mean that a connection to service is established by a veteran simply asserting that he perceived a threat and as such supplanting any need for objectivity altogether. It was submitted that the word “expressing”, introduced a subjective element, not a completely different and highly subjective test.
50. It was the respondent’s submission that objectivity should be retained and in so submitting contended:
“Thus there might be a subjective element to ‘experiencing a severe stressor’, but that departure from a strictly objective test extends only so far as the veteran’s personal knowledge and experience could reasonably permit a threat to be perceived. Use of the word ‘reasonably’ requires an objective assessment in relation to the person’s subjective perception.”
51. In the present case it was submitted that the applicant was twenty-six years of age and a qualified RAA sergeant when he went to Vietnam in 1969 and in respect of each claimed stressor, the respondent’s views were expressed as follows:
“(a)In relation to the ammunition incident, unlike Stoddart, he was not alone, and he was not in a sealed compartment of a stationary ship. He was enroute to FSB Discovery in the company of fellow servicemen and the helicopter crew. He was at all times in a position to assess for himself whether or not a threat existed (and to the extent that there was perceived danger to the helicopter, he was in a position to abate that threat, by enquiring with initially the loadmaster and ultimately the pilots of the chinook). Ultimately, the helicopter landed at a point 300-400 metres distant to the ammunition at an alternate landing zone being 200-300 metres outside the outside the base. That the landrover and trailer experienced difficulty unloading simply indicates the landing zone was unsuitable. The calibration activity in which his team was engaged had no direct prospect of confrontation with enemy. The calibration activity encompassed discussions with officers from the artillery battery. Nor was there an immediate past event to prey on the applicant’s mind as he carried out his work in the environment in which he did as the unit records deny any immediate enemy activity.
(b)In relation to the coffin incident, the applicant was in no threat of injury. The applicant did not experience, witness or was confronted with an event that involved actual or threat of death or serious injury. The applicant was only advised of the identity of the officer on boarding the aircraft to return to Australia, there is no evidence the applicant personally knew the officer, nor has the officer been named in the applicant’s oral evidence. The event may be distinguished from the facts in Woodward and Repatriation Commission since the dead pilot was known to the applicant, further the applicant was required to collect the officer’s personal items including a photograph of the officer’s family.
(c)In relation to the convoy events, the applicant held fears of injury or death solely based on his observance of the presence of ‘shotguns’ riding in the vehicles. The applicant was deployed for calibration activities, a task not involving direct confrontation with the enemy. The applicant’s fears of mines and snipers were ultimately unfounded since there were no such events. The respondent contends that the apprehension held by the applicant does not satisfy the ‘reasonable person test’ when all the facts are considered.”
52. It was submitted for the reasons given above, the material before the Tribunal does not fit the template in the relevant SoP and therefore the hypothesis put forward by the applicant is not a reasonable hypothesis.
53. The respondent submitted that in the alternative, Stoddart should be confined to its facts and is distinguishable unless the Tribunal can be reasonably satisfied that a reasonable person, in the applicant’s position and possession of his knowledge, reasonably objectively would have believed himself to be at risk of death or serious injury.
54. The Tribunal has carefully considered all of the material before it and the submissions of both parties.
55. The Tribunal has considered the applicant’s circumstances in accordance with the law as determined in Stoddart (supra).
56. In the light of the approach taken by the Full Federal Court in Stoddart, the Tribunal, noting the nature of the Vietnam conflict, is constrained to make the observation that it would not be difficult to hold the view that most of those who rendered operational service in Vietnam, if not all, were faced with the possibility, albeit at the least a mere possibility, of the threat of death or serious injury, even though they were not engaged in a specific offensive operation directed against known or suspected enemy forces.
57. In making this observation the Tribunal is mindful that the enemy forces in Vietnam were Vietnamese who had the capability of conducting their operations enmeshed, to varying degrees, with the local Vietnamese population and infrastructure, to the point that the line between friend and foe was often blurred.
58. Furthermore, Australian forces were faced with a ubiquitous enemy where any concept of a “front line” was not only inappropriate but dangerous. In the face of an ever present threat of enemy action in all locations, Australian commanders (apart from mounting offensive operations against known or suspected enemy forces), took vigorous and constant defensive action to ensure that the locations and the movements of their troops and material were secure and protected from possible enemy action.
59. As a further general observation, it is reasonable to expect that well trained soldiers (in the absence of a specific threatening event) would cope with the operational environment, as described above, without suffering psychological damage as a result of a mere possibility of death or serious injury. However, that is not to say that all servicemen would cope adequately with what might be described as routine operational circumstances and each case must be considered within the context of the law as it now stands and the particular circumstances of that case (including specific events, if any) and the individual’s reactions to those circumstances.
60. In Mr Campbell’s case, the Tribunal is satisfied that the events he describes in respect of insertion to FSB Discovery and movement by military road convoy during his tours of duty in SVN are both capable of conveying the possibility of risk of death or serious injury when judged objectively from the point of view of a reasonable person in the position of the applicant experiencing these events. Furthermore, the Tribunal accepts the veteran’s evidence that he feared for his life in experiencing these events. In accepting the veteran’s evidence about his reactions to the two events, the Tribunal has taken into account the veteran’s high level of training, regimental experience and seniority; and the somewhat routine nature of the tasks in which he was engaged. However, the Tribunal, nevertheless, is satisfied that he did suffer the intense fear he describes as a result of these events.
61. Given the above findings, it is not strictly necessary for the Tribunal to consider the “coffin event” as described by the veteran. However, for the sake of completeness the Tribunal has considered this event. The Tribunal accepts that the veteran found the event distressing and that the event probably heightened his awareness of the dangers he faced while he was serving in Vietnam. However, the Tribunal is satisfied, applying the approach as set out in Stoddart, that the “coffin event” was not an event that involved actual or threat of death or serious injury or a threat to the veteran or other people’s physical integrity. The Tribunal therefore finds that the veteran did not experience a severe stressor as a result of the “coffin event”.
62. The Tribunal is therefore satisfied that the veteran did experience severe stressors during his service in SVN and that the hypothesis put forward by the veteran is a reasonable hypothesis.
63. The Tribunal, after consideration of all of the material before it and the submissions of both parties, is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s alcohol dependence or alcohol abuse are war-caused.
64. The Tribunal therefore sets aside the decision under review and in substitution therefore determines that the veteran suffers from war-caused alcohol dependence and alcohol abuse with effect from 5 April 2001.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Kirsten Donnelly
AssociateDate/s of Hearing 20 & 21 November 2003
Date of Decision 11 February 2004Counsel for Applicant Mr Clutterbuck of Counsel
Solicitor for Applicant Streeting Haney
For the Respondent Mr Williams, Departmental Advocate
0
4
0