Coulter and Repatriation Commission
[2008] AATA 1085
•4 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1085
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601094
VETERANS' APPEALS DIVISION ) Re BRIAN JOHN COULTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date4 December 2008
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED a reasonable hypothesis exists between the applicant's service in Vietnam and the illness of Posttraumatic Stress Disorder. The application is remitted to the respondent for assessment of pension. (Sgd) John Handley
Senior Member
VETERANS' ENTITLEMENTS ‑ Vietnam service – applicant exposed to a number of events – whether life threatening (refer PTSD Statement of Principle No 5 of 2008 Factor 6 (a)) – being shot at and exposed to shooting – involvement in an aircraft accident as a passenger and potential detonation of a land mine are all life threatening events – few records of these events – observations of role of Writeway consultants and reports – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s 120(1)
Mines v Repatriation Commission [2004] FCA 1331
Re Giger and Repatriation Commission [2007] AATA 2000
Re Sanderson and Repatriation Commission [2008] AATA 891
refer Hardman v Repatriation Commission [2005] FCAFC 83
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192
Statement of Principles No 5 of 2008 Factor 6 (a)
REASONS FOR DECISION
4 December 2008 Mr John Handley, Senior Member 1. Mr Coulter, the applicant in these proceedings, applies to review a decision made by the Veterans' Review Board (VRB) on 1 September 2006. The VRB then affirmed a decision previously made by the respondent refusing his application for acceptance of the condition of posttraumatic stress disorder (PTSD).
2. The applicant is 71 years of age and has been receiving 100 percent of the general rate of pension since November 2004. He claimed PTSD / anxiety on 30 September 2002 (T5) when he was then in receipt of pension at 30 percent of the general rate. By this application he seeks to recover pension, at the general rate, greater than 30 percent beyond 30 September 2002 until 3 November 2004. He does not claim extreme disablement adjustment nor will he claim special rate pension.
3. The applicant was engaged by the Australian Army (the Army) during two periods of service namely from 27 May 1964 until 26 May 1970 and from 27 May 1973 until 14 March 1984. The events in service which he alleges gave rise to PTSD occurred during a tour of Vietnam between 17 February 1968 and 18 February 1969. When the applicant arrived in Vietnam he held the rank of Captain and was first posted as the Second In Command of the 102 Field Workshop in Vung Tau. He was later transferred and became Commanding Officer of C Squadron in the 1st Armament Regiment Workshop and later held a staff position at the No 1 Australian Logistical Support Headquarters.
4. Prior to the commencement of the hearing, the representatives for the parties agreed that medical evidence would not be called. The medico-legal specialists engaged by each party had both diagnosed PTSD. The respondent did not concede that the alleged war‑caused events were responsible for that diagnosis. The respondent submitted that some of the symptoms of PTSD could be related to other illnesses and more likely to have been associated with events experienced by the applicant as a civilian. Counsel for the applicant contended that any one of the war‑caused events over which the applicant would give evidence would be sufficient to qualify as a life threatening event within the meaning of Statement of Principles No 5 of 2008.
5. In these proceedings evidence was given by the applicant, his wife and Mr Barsley, a former Member of the Australian Merchant Navy and the Australian Army who was engaged by Writeway to prepare research reports. Writeway was initially engaged by the VRB during its deliberations prior to delivering the decision which is under review in these proceedings. The report he prepared for the VRB is found at T16. Later, the respondent engaged Writeway who engaged Mr Barsley to prepare another report and it is found at T18. He acknowledged in cross‑examination that he has no formal qualification as a historian or as an archivist.
6. The applicant relied on nine events in service which he said gave rise to PTSD. Those events and the evidence with respect to them will be discussed below under the following headings.
(i) spent bullet
(ii) Caribou flight
(iii) being proximate to shooting by South Vietnamese Police
(iv) black citroen
(v) cordon and search mission
(vi) fire in armoured recovery vehicle (ARV)
(vii)accidental discharge of 50 calibre ammunition from Landing Craft Medium (LCM)
(viii) being fired at from South Vietnamese guard post
(ix) bombing of US vessel 825 Hickman County
evidence of the applicant
(i) spent bullet
7. The applicant said on an occasion when he was walking at or near the 102 Field Workshops a spent bullet landed at his feet. He said he did not see where that bullet had come from nor did he hear any sounds of weapons being discharged. His initial reaction was surprise and fear. He said that he wondered whether I would get home to my kids if this sort of stuff happened and recalled writing a letter to his wife about this episode.
8. Mrs Coulter said in evidence that she recalled a letter being received from her husband referring to the spent bullet and how that incident had caused him to think about the family.
(ii) caribou flight
9. In or about March 1968 the applicant said he was intending to travel to Long Binh where an American supply depot was located to investigate the supply of engines. He said Long Binh was on the other side of Saigon. He was then located in Vung Tau. He intended to travel on a Caribou aircraft to Saigon and then travel by road to Long Binh. The aircraft was also used for mail deliveries and in the course of the journey to Saigon it landed at the Black Horse Fire Support Base. After unloading the mail, the plane then intended to lift off and travel to Saigon. After it had taxied approximately half the length of the runway, the applicant said he heard a loud bang and the plane was brought to a halt finishing at the end of the runway. The applicant said that his first reaction was that accidents only occur during takeoff and landing and he was intensely fearful. He said that the pilots battled to bring the plane to a halt and everyone in the aircraft was very surprised and we thought it was mortar because well mortaring was going on at that time. He said after he and others disembarked from the aircraft he heard from one of the pilots that there had been a problem with the propeller. After waiting approximately half an hour another aircraft arrived and he then continued his journey.
10. In cross‑examination Mr Coulter acknowledged that Mr Barsley had been unable to locate any report of that incident and added that he was not able to account for the RAAF reporting system. He acknowledged that there was a report of Caribou aircraft being attacked by small arms fire on 24 May 1968 and 22 June 1968 but said that he was not involved in those incidents. He said that his aircraft was not fired on but the loud bang that he heard was because of a propeller fault. Further, he said that the incident in which he was involved occurred in March 1968.
11. Mr Barsley said that he could find no record of this incident. He said that he looked at reports completed by the RAAF Headquarters in Vietnam and specifically inspected Squadron 35 records which was responsible for operation of Caribou aircraft. He said he found nothing. He understood that the incident occurred either in March or April 1968 and it was during those periods of time that his enquiries were directed. Enquiries were also made from Dr Wilson, a former head of the RAAF Historical Office, Air Commodore Max Brennan who was an RAAF Aircraft Engineer. Air Commodore Brennan was also commanding the RAAF in Vietnam at this time. Enquiries were also made of Squadron Leader Carmody who was the Director of Air Safety of the RAAF and another person, a former Sergeant of 35 Squadron serving at that time in Vietnam who reported that records, if any, of accidents or anything else that happened in Vietnam had been passed to the National Archive Office. Mr Barsley said that he could find no report of these incidents nor were the persons he spoke to above able to assist him in identifying this incident. He did locate other incidents involving Caribou Aircraft but they were different in nature and occurred at different locations. Mr Barsley said that as a result of his discussions with the persons identified above, an incident of the type described by the applicant would have been a recordable incident.
12. In cross‑examination, Mr Barsley agreed that he sought information from primary sources only and did not make enquiries of secondary or tertiary sources, an example of which was the maintenance records or maintenance logs of individual Caribou Aircraft. He agreed that those types of records would record mechanical work undertaken over aircraft. He was not aware that Mr Bell, the applicant's advocate at the VRB, was a former member of the RAAF who indicated (to the VRB) that a number of Caribou Aircraft used in Vietnam were subsequently sold with their maintenance records. He did agree that the base records, as described by Squadron Leader Carmody, would have recorded maintenance work over aircraft.
13. It was put to Mr Barsley that in the absence of maintenance records or enquiry to identify whether maintenance records for the particular Caribou did exist, that if the incident itself was not recorded in operational records, he would not have found any record of the incident. It was his opinion that if an aircraft is going to slide off the end of a runway, wreck a propeller, be left there and another aircraft coming in, I think that that would be in the details of operation sheets and there was no record of that in the details of operation sheet. In those circumstances he said that trying to find maintenance records would not have been of any help. He said that he was not an aircraft engineer and did not know whether replacement of a propeller simply involved removal of a single locking nut, removal and refitting of a new propeller and replacing of the locking nut. He did not know whether that would be a simple operation which might have been thought not worthy of reporting in maintenance records. He said in his opinion, if an aircraft had propeller damage, could not continue its flight and another aircraft was required to transport persons that the operation sheets would have recorded those events.
(iii) being proximate to shooting by South Vietnamese Police
14. The applicant said that during the tour to Long Binh (he was away from Base for two days) he was accommodated at a staging post in a small hotel in Saigon. Meals were supplied at Officers' Quarters and the hotel was located approximately half a mile away. The applicant said that there was an occasion approaching dusk when he was walking back to his hotel with Warrant Officer George Swan (who it was learnt had subsequently deceased). The applicant said that he heard firing and said the
Bullets whizzed past our ears, we heard the crack, which means it was probably within a foot of our head. We both drew our pistols, we dived into this doorway, and there were a few more shots fired around us and then luckily the MPs came along with a machine gun and the firing disappeared around the corner (Trans. p17).
15. The applicant said that the MPs were patrolling the district in a Jeep with a machine gun mounted on its back. He said the firing had commenced by the White Mice which were the South Vietnamese National Police. The applicant said it was not unusual for the South Vietnamese Police to be armed with sub‑machine guns and pistols, and use them, because the rockets were coming into Saigon and we could hear little fire fights all around through the streets. Indeed the applicant said that he had asked to be escorted to his hotel but that request was declined. The applicant said that he saw that the firing was coming from the South Vietnamese Police who were in pairs but he could not say at whom they were firing. He estimated that the firing lasted for a few minutes. The applicant said that he was dead scared, frightened I wouldn't get home. In fact I was shaking.
16. In cross‑examination the applicant said that this episode occurred during the same journey away from Vung Tau to the Long Binh Supply Base. The incident would have occurred within one or two days of the Caribou incident. He said that he did not know whether the incident was reported.
(iv) black citroen
17. On the day after the above incident and when returning from Long Binh to Saigon in a Jeep, the applicant recalled an incident when they stopped at traffic lights and were approached by a black Citroen motor vehicle which stopped beside them. The applicant said that he had heard reports of a person locally described as the dragon lady who had been responsible for assassinations of military personnel in Saigon and who committed the assassinations usually in traffic at intersections. The applicant said that he and George Swan who was seated beside him in the Jeep had their pistols drawn. He said that he observed the faces of persons within the Citroen looking at him and he alerted Mr Swan to those persons. He said that he was about to pull my pistol up when an elderly female person in the back of the vehicle put her head out of the vehicle and spit onto the ground. He said we were pretty anxious – more than anxious, we were scared stiff actually at the time. It could have been anything.
18. In cross‑examination the applicant said that the dragon lady had been reputed to be a pillion passenger on a small motor cycle which would pull up at stop signs or traffic lights and as the lights changed to green, she would remove a pistol, shoot an officer and then take off and disappear into traffic. He said that he had heard of this person from United States and Australian officers and she had been reported to have fired shots at officers from both of those forces. Despite the vehicle stopping beside them being a motor car, as opposed to a motor cycle, the applicant said that the dragon lady could have been in the Citroen and she could have changed her modus operandi.
19. This incident and the previous incident (being proximate to shooting by South Vietnamese Police) occurred in or near Saigon. Mr Barsley contacted Colonel Tinkler who was the officer commanding the 106 Field Workshop of which the applicant was a member. Colonel Tinkler apparently notified Mr Barsley that he had no recollection of these incidents but could not access his diaries which were located at the Australian War Memorial. Mr Barsley said that he was able to access those diaries and could find no reference to either of these incidents.
20. In cross‑examination, Mr Barsley agreed that whilst the diaries did not offer proof that the incidents in Saigon did occur, there was nothing from the diaries which would indicate that the incidents did not occur. He also agreed that Colonel Tinkler had told him that he had no recollection of those incidents as opposed to him denying that those incidents did occur. Mr Barsley also agreed that there was no reference in Colonel Tinkler's diaries to the applicant visiting Saigon at or about this time but equally there was nothing to indicate the applicant visiting or being in any other place at or about that time.
21. Mr Barsley said that a facility exists at the Australian War Memorial to make enquiries of persons either by searching by name or date range or location. He said if nothing comes up, then there is no file. However, he qualified that answer by indicating that the Australian War Memorial is interested in operational matters and if incidents are not reported, you're not going to find a report on them anywhere. He did not agree that enquiries made of Routine Orders Part 1 or Detachment Orders or Ration Orders or Personnel Occurrence Returns would necessarily indicate that an incident, as alleged, did occur or that a person was at a particular place at a particular time. Additionally, he said that he did not know whether those records were maintained by the War Memorial. Nonetheless, Mr Barsley agreed that he did not make enquiries of any of those type of records despite having been provided with the applicant's name, his location and the range of dates during which the applicant alleged these incidents occurred.
(v) cordon and search mission
22. In June or July 1968 the applicant had recently joined C Squadron as the Workshop Commander and decided to attend and observe a cordon and search mission at a village in Duc Thanh. The applicant said that a cordon and search mission was the placement of an armed cordon around the perimeter of a village before dawn and at dawn search parties entered and looked for weapons and other contraband. The applicant said that he travelled to Duc Thanh in the boss' command vehicle.
23. After the search had commenced and was in progress, he said the boss invited all officers present to have lunch with him and from his command vehicle, a table with a white tablecloth was removed, and wine, tea and coffee was made available. During the course of some discussion amongst officers they were approached by an allied armoured personnel carrier (APC) and when it was about 50 feet away from the assembled officers a land mine exploded which blew away the track of the APC. It was not known that the area over which the APC had travelled was a mine field.
24. The applicant said that the driver of the vehicle emerged, looked over the side and then jumped down to the ground. As he was doing so, the applicant said that there was a fearful intake of breath which you could actually hear because all officers knew that jumping to the ground in the circumstances was dangerous because the driver could have detonated another mine. The applicant said all persons present were just flabbergasted. He said we were speechless actually and most of us had white faces. He said the driver managed to climb back onto the APC without moving his feet other than to elevate himself. The applicant said I thought we'd all go up because it was fairly close . . . those things blow for about 10 to 20 metres.
25. In cross‑examination the applicant agreed that the cordon and search mission did not occur in the village of Duc Thanh but rather in the village of Ngai Giao. He agreed with a report completed by Mr Barsley that Ngai Giao is a village within the province of Duc Thanh and the name of the village intended for the cordon and search would not have been broadcast by radio for security reasons. Therefore the intended search at Duc Thanh was referred to in radio broadcasts to ensure that enemy persons would not be aware of the location of the cordon and search operation.
26. The applicant said that the 3rd Calvary Regiment of A Squadron was listed to undertake this operation together with the C Squadron Armed Regiment to which the applicant was attached for the purposes of this exercise. By reference to documents that became available after the conclusion of the first day of hearing and the commencement of the second day of hearing, the applicant was recalled and further examined by Counsel for the respondent. He agreed that a Commander's Diary Narrative was completed by Commanding Officer Lieutenant Colonel Bennett of the 1 RAR Unit and another Commander's Diary Narrative was completed by Major Keldie of the Calvary Regiment of A Squadron. The applicant acknowledged that the Narrative completed by Lieutenant Colonel Bennett referred to the APC as having slight damage and the Narrative completed by Major Keldie referred to a vehicle from 3 Tp detonated an M16 mine with no casualties. The applicant said that the slight damage was a description probably given because the broken track was capable of repair but not at its location because it was in the presence of a mine field. It would have been towed away at a later time. The applicant said that the description of damage was subjective.
27. The applicant was adamant that the Commanding Officer did provide morning tea (in evidence in chief he said lunch) at or about the time that the APC detonated a mine. It was that event which caused damage to the APC. The Commander's Diary Narrative records the detonation of the M16 mine as having occurred at 6.25am on 23 July. The applicant said that morning tea would have been taken, then, because the Commanding Officer wanted to put on a bit of a side. Additionally, he said the troops had been up since 4 o'clock . . . and by the time they had established the cordon and everything was in progress they sat down for morning tea. If it happened to be at 6.27 then it was 6.27 in the morning.
28. Mr Bob Thomson was a Warrant Officer in Vietnam between April 1968 and April 1969. He provided a statement at pages 134 – 135 of the T documents. He reported
Whilst I was inspecting Brian's Unit September '68 I was in his office and being an old friend he told me about when he went out with the APCs in a support roll [sic] to see another very close APC run over a landmine that dislodged a track and then see the young inexperienced officer jump off his track onto the ground to inspect the dislodged track. Brian thought that the young officer would step on at least an anti personnel mine that were usually distributed around any landmines. He could see himself in the young officer's role and being killed. This observation out in the field really shook Brian up. He told me about it shaking and told me that it could have been him.
29. Mr Barsley said that he was asked to investigate whether an incident described to him as a search and destroy mission occurred at or about the Village of Duc Thanh. He acknowledged that he later learnt that it was in fact a cordon and search mission. He reported that he could find no references at all to a village called Duc Thanh because the co-ordinates of the incident reported to him referred to the village of Ngai Gaio. On further enquiries made by him, indeed by internet search, he found Commanders' Diaries with respect to the episode described by the applicant. He could not find any reference to the applicant being a part of the cordon and search mission despite locating two Commanders' Reports.
30. Mr Barsley could not locate any Operational Orders but he was satisfied that the mission was a major event. The event was known as Operation Elwood and it involved personnel from C Squadron of the No 1 Armoured Regiment, the No 3 Calvary Regiment, APCs and No 1 Field Squadron. Also involved were a platoon of SAS personnel, United States personnel from the 2nd and 35th Artillery, a helicopter fitted with loudspeakers and a reconnaissance aeroplane.
31. Mr Barsley acknowledged that the Commanders' Diary Narratives completed by Lieutenant Colonel Bennett and Major Keldie (refer above) each referred to an M16 mine being detonated by an APC. He said that he could not explain whether there was a difference between anti personnel and an anti tank mine.
32. Additionally, he noted that the report completed by Major Keldie referred to the episode occurring on 24 July but by references to other parts in his report, including alterations where the numeral 24 had been overwritten by the numerals 23, he was satisfied that Major Keldie was reporting the same incident as was reported by Lieutenant Colonel Bennett. He said the differences in the reporting and the quality and extent of information provided could be explained by one of the reports being completed from an infantry perspective and the other from a calvary regiment.
33. Mr Barsley said that he was not aware that the applicant in evidence had said that morning tea was provided and a bottle of wine had been produced. Additionally, he said that he had no personal experience in any cordon and search mission. He also said that he could not explain the difference between minor and major damage (refer evidence of applicant above).
(vi) fire in armoured recovery vehicle (ARV)
34. In September 1968, the applicant said that two ARVs returned to the Nui Dat Base at about lunchtime following an operation. One vehicle drove and parked near the workshops and the other vehicle, which was carrying the applicant, parked behind the workshops. The applicant's crew left for lunch but he walked to his office within the workshop building. A short time later, the applicant walked out of his office and observed that his vehicle had burst into flames. It was later learnt that a tarpaulin had fallen from the top of the vehicle onto a muffler located on the side of the vehicle and had caught fire.
35. When the applicant first observed the fire, he manoeuvred a 40 gallon foam extinguisher into position but as he did so, ammunition stored within ammunition liners on the ARV, located behind armour plating commenced to explode.
36. The applicant said that the 40 gallon foam extinguisher did not work properly and he then ran back and forth from the vehicle to the workshop to collect small fire extinguishers. He said that 27 smaller type extinguishers were used to eventually extinguish the fire. Whilst discharging the extinguishers, the ammunition continued to explode and he said that upwards of 8,000, 30 calibre bullets exploded puncturing the ammunition liners but not escaping the armour plating. The applicant said that the location of the ammunition liners was above head height and he was attempting to extinguish the fire by having his arms raised and applying the fire retardant above the location of the liners. He said I wasn't going to stick my head up because I didn't want it blown off. He estimated that the rounds were discharged over five or six minutes and approximately 10 minutes was taken to extinguish the fire. The applicant said that he then felt pretty weak, pretty vulnerable and again terrified.
37. On reflection, the applicant said that the tarpaulin was approximately 20 feet by 10 feet and had been rolled. He said there was oil in the tarpaulin and it was his belief that it was the oil within the tarpaulin which was burning. The applicant agreed that the explosion of the ammunition would have been noisy yet it was only Lieutenant Catterall who assisted him and who had been located at the other end of the workshop buildings. The applicant said that other members of his squadron had vacated the area to have lunch and would have been approximately 500 metres away.
38. In cross‑examination the applicant was referred to a report of Mr Barsley who identified a fire by reason of a tarpaulin falling on the engine of a Centurion tank on 19 May 1971. The applicant said he was not in South Vietnam in 1971. Additionally, he said that the vehicle reported by Mr Barsley was a Centurion tank which would have been part of an Armed Corps Unit. He said that the vehicle which was on fire in the incident at his workshop was a RAEME Vehicle (Royal Australian Electrical and Mechanical Engineers) of which he was responsible. He said that the incident was not reported because he did not make a report. He regarded the vehicle as usable and would be repaired in his workshop. He said that an incident report was not necessary because person's lives were not in danger. Additionally, he said it's only making paperwork for myself. This was a war.
39. Lieutenant Catterall provided a Statement found at page 122 of the T‑documents. He recorded that he recalled an incident in September 1968 at the 1st Armoured Squadron Workshop where an ARV had caught fire. He recalled that the top deck of the ARV had flammable materials being smoke canisters and white phosphorous grenades. He said he could not recall any ammunition exploding but assumed that it did because he had climbed onto the vehicle in an attempt to extinguish the fire but had been ordered by the applicant to jump down and move away from the vehicle as far as was possible. Mr Catterall specifically recalls the episode because in the course of jumping he injured his leg and lower back which was subsequently accepted by the respondent as a war‑caused injury. Mr Catterall recorded that he was affected by this life threatening experience and regarded the incident as highly dangerous.
40. Mr Barsley said in evidence that he could find no record or report of this incident but did locate a report of a Centurion tank in 1971 being on fire apparently as a result of a tarpaulin falling onto engine covers. In cross‑examination it was suggested to Mr Barsley that his report was not balanced because he referred to that part of the statement of Lieutenant Catterall who recorded that he did not recall ammunition exploding but no reference was made in his report to Lieutenant Catterall acknowledging that the incident did occur, that it was highly dangerous and the applicant and he had risked their lives. Mr Barsley said that those comments by Lieutenant Catterall amounted to opinion whereas he was looking for facts.
(vii) accidental discharge of 50 calibre ammunition from landing craft medium (LCM)
41. In November or December of 1968, the applicant travelled from Baria to Nui Dat with an armoured tank which had been written off and which was being transported on a low loader semi trailer. The tank was being taken to Vung Tau and would eventually be located in the Australian War Museum. On arrival at the Song Rai river, it was loaded onto a landing craft which would eventually travel along the Song Rai river to Nui Dat. The low loader and the LCM were American vehicles. The combined weight of the tank and the low loader caused the LCM to descend into the water and it was decided to wait until high tide to allow the LCM to move away from the loading area.
42. High Tide was not expected until after dark. The LCM did not have radar. It was also decided to travel under escort and an American Armed Patrol Boat assisted to provide protection and guide the LCM by its radar.
43. After the LCM commenced its journey, the applicant said that he was standing on its bridge looking over the side towards the patrol boat. It had 50 calibre machine guns mounted at the front and the back. American personnel were manning each of the guns. The person manning the front machine gun was in a seated position within a turret. A photograph produced at the hearing depicts a person in that position. That person is visible only by his chest, shoulders and head. The tops of his knees are above the top edge of the turret in which he is seated. The applicant said during the voyage he was located on the bridge of the LCM and was looking towards the front machine gun of the patrol boat. He observed the operator commence to climb out of the turret initially by attempting to stand on his seat. In so doing, one or both of his knees struck the machine gun and five or six rounds of 50 calibre ammunition were discharged. The applicant said the ammunition ricocheted of the side of the LCM on which he was travelling. The applicant said that his reaction was again fear. More than fear.
44. In cross‑examination the applicant acknowledged that there probably was no report accessible by Australian personnel of that incident because the patrol boat and the LCM were United States vessels. The applicant said that he was not aware that he would have been required to complete a report for security purposes, to alert other people.
45. Without discounting the effect on him of any of the incidents upon which he relies in this application, the applicant said that this event was the most worrying incident (refer Transcript of VRB and Transcript of this proceeding at page 63).
46. Mr Thomson (refer paragraph 28 earlier) knew that the applicant escorted a tank to Vung Tau. He was posted to the 1 Armed Squadron Workshop of which the applicant was the Commanding Officer. He recalled an episode of the applicant escorting a tank to Vung Tau which was beyond repair. He reported I heard that Brian had nearly been killed by an AD from a 50 Cal machine gun. Later I spoke to Brian about the incident to have it confirmed by Brian and as he told me the story he began to shake uncontrollable [sic]. He thought he was going to die.
47. Mr Barsley provided photographs of a typical patrol boat with the guns mounted at the front and at the rear. He said he could find no report of the incident described by the applicant because it involved a United States vessel and said it would not have been reported to Australian officials unless an Australian person was injured or involved.
48. In his research he did find a record of the movement of damaged tanks from Baria to Vung Tau on 5 November 1968 and 28 December 1968. The reports located identified the tanks being transported by inland water and he conceded that a United States vessel could have been involved.
49. In cross‑examination Mr Barsley agreed that he did not seek to identify the United States personnel who were onboard the LCM or the patrol boat. It followed that he did not seek evidence from United States personnel with respect to this incident. Mr Barsley had been provided with a copy of the statement of Warrant Officer Thomson after he had completed both of his reports. He said that the comments within the statement does take a measure of support but said that those comments would be second hand and the incident was not witnessed by Warrant Officer Thomson.
50. Mr Barsley said that it would not be necessary for the machine gun operator to remove himself from the turret by standing on the seat. He said it was possible to traverse the gun and then obtain an unimpeded standing position. In those circumstances the gun would not have been struck by his knees. He said that would be the safe way.
(viii) being fired at from South Vietnamese guard's post on song rai river
51. The applicant said that during the voyage referred to above, the vessel on which he was a passenger was fired upon by South Vietnamese guards.
52. He said whilst travelling along the Song Rai at night the vessel passed many bridges (he said approximately 20) located in or near mangrove swamps adjacent to the edges of the river which allowed motor vehicle traffic to travel along a road which ran parallel to the river. He said South Vietnamese persons would occupy the bridges during the night and would be armed. During this voyage, tracer bullets were fired over the top of the LCM until the American patrol boat escort identified itself. The applicant said that every person onboard the LCM lay flat on the deck to avoid the firing. He said that he was intensely frightened.
53. In cross‑examination the applicant said that the bridges that he referred to would not necessarily be shown by maps or aerial photographs that were produced during the hearing. He said some of the bridges would have been obscured by the mangrove trees and some of the bridges would have been temporary. He said they were known as Bailey Bridges which were bridges made up in sections on shore and pushed out on pontoons and joined together. The applicant said that the reason why the armoured tank had been transported along the river was because the bridges crossing or adjacent to the river and passing through the mangrove areas would not have been strong enough to support the weight of the low loader and the tank.
54. The applicant said that the local bridges were protected nightly by a platoon of South Vietnamese persons who were members of what was known as the popular force. He said they were patrolled by persons with machine guns and who fired at anything that moves near it.
55. Mr Barsley said that he understood that the applicant was fired at when his vessel was passing under a bridge. Mr Barsley said he understood that that event occurred in those circumstances by reference to a history taken by Dr Gelb in his report. Mr Barsley said the only bridge that was manned on a regular basis was the Kaumai Bridge which was near the hard landing at Baria. He said that he could find no report with respect to this episode. In cross‑examination he confirmed that he was only aware that the Kaumai Bridge was manned by South Vietnamese guards and was unable to say whether other bridges, at night, were manned by armed South Vietnamese forces.
(ix) bombing of US vessel 825 Hickman County
56. The applicant said that he was at or near the United States Vessel 825 Hickman County in December 1968 when it was subjected to rocket attack and when there were US casualties.
57. This episode occupied a considerable amount of the time spent during the hearing. A number of photographs and reports were tendered. Mr Barsley conducted extensive research. It became apparent, and it was eventually conceded by the applicant, that he did not observe, nor was he at or near, the vessel Hickman County at the time that it was attacked.
58. It would appear that there was no doubt that that incident did occur as described. I am satisfied that the concession made by the applicant was properly made. Nonetheless the incident is referred to in these Reasons because the episode formed part of the history given to some of the doctors who diagnosed PTSD.
59. Mr Barsley said that he was the Commanding Officer of the Australian vessel Clive Steele for a period of time in Vietnam. The applicant had said in evidence that he was onboard that vessel and standing on its bridge when the United States vessel was attacked. The applicant produced a photograph taken by him of the bridge of the vessel, indicating that he had been onboard.
60. The combined effect of the evidence of Mr Barsley and the documents that he was able to produce were in large part responsible for the concession made by the applicant that he was not at or near the attack on Hickman County when it occurred. Indeed, Mr Barsley knew of that episode and said that he and the vessel Clive Steele had left Vung Tau some hours previously. Additionally, Mr Barsley produced records from the internet site of the Hickman County vessel which indicated that it was not in Vung Tau in December 1968 when the applicant alleged that it had been subjected to bombing attack.
conclusion and reasons for decision
61. An illness or injury must be found on the balance of probabilities before any consideration can be given to the reasonableness of a hypothesis.
62. In the present case, both parties conceded that the majority of doctors had found that the applicant suffered from PTSD. The respondent did not concede that that illness had a nexus with war‑caused events. The case for the respondent was that some of the applicant's symptomatology of PTSD can relate to other conditions that he suffers from (Trans. p7). Additionally, it was submitted that no weight should be attached to the applicant's evidence which was described as unreliable (Trans. p171). Issues of that type will be discussed later when s 120(1) of the Veterans’ Entitlements Act 1986 (the Act) is considered. At this stage I am satisfied and find as a fact that the diagnosis of PTSD has been properly made and the veteran, unfortunately, suffers from it.
63. The respondent's case of the applicant suffering from other conditions is difficult to comprehend. I assume that some other distressing events in the applicant's life ‑ apparent from the medical reports and records and admitted in evidence were the subject of the respondent's focus. The medico-legal doctors reported a history of past personal and familial events and the applicant's response. Dr Stauss virtually dismissed those events and responses as relevant to the diagnosis he made of PTSD by the events in service. Dr Cooper reached a similar conclusion.
64. Between both periods of service the applicant was employed in a personnel role as a civilian. He did then suffer stress and it was well documented. But those symptoms resolved and upon (and subsequent) to reenlistment, he was very highly regarded (as evident by the descriptions of him) during an Officer Selection process (refer Ex R7). The applicant was found to be anxious in late 1999 as he was about to have open heart surgery. That reaction is hardly surprising. The applicant had a good result from the surgery and was not subsequently anxious (refer Trans. pp53 and 54). There were also issues involving his children, which, to preserve their privacy, need not be repeated here, save that they are well documented in the medical reports. There is nothing which points to these or any other incidents as a civilian being responsible for the PTSD diagnosis.
65. In the present application the hypothesis is well known to the respondent namely, that the applicant experienced a number of life threatening events during his service in Vietnam which would satisfy factor 6(a) of Statement of Principles No 5 of 2008 entitled Posttraumatic Stress Disorder. The hypothesis of connection between service and injury is reasonable because the material that raises it contains the elements prescribed by the Statement of Principle, that is to say, it is consistent with that template (refer Repatriation Commission v Hill [2002] FCAFC 192 at [55]). This is an application, like many others, which can proceed to fact finding under s 120(1), the so called stage 4 of Deledio, with little more than a glance at s 120(3) (refer Hardman v Repatriation Commission [2005] FCAFC 83 at [32]; Repatriation Commission v Deledio (1998) 49 ALD 193; Mines v Repatriation Commission [2004] FCA 1331 at [48]).
66. For reasons which will follow I am satisfied that the events alleged by the applicant and discussed above did occur except for the incident involving the US Vessel Hickman County.
67. It was the case of the respondent that the applicant's evidence was unreliable and or a number of events were first learned when he volunteered them during VRB proceedings. Surely the respondent must now realise, after having processed many thousands of applications from Vietnam Veterans, that not all incidents which are alleged as giving rise to injury were reported or that veterans' memories may be imperfect (hardly surprising when that conflict occurred more than 40 years ago). Additionally, the effect on a veteran's health from an event in service may not become manifest until many years later. An attack on a veteran's credit because a report of an incident could not be found or, in fact was not reported often causes a sense of resentment in veterans when their evidence is regarded by the respondent as inferior to consultants who are engaged at or about the time of VRB proceedings or proceedings in this Tribunal. The respondent is of course entitled to cross‑examine but it is not entitled – nor should it – submit that a veteran's evidence is unreliable when a plausible – and supported – description of an event has been given. The failure or inability to locate a report of an incident does not permit a finding that the incident did not occur. It is a matter which is to be taken into account only in the process of fact finding. I am also concerned whether Writeway consultants understand their role is to provide research reports and assist the Tribunal. The evidence of Mr Barsley at paragraphs 40 and 49 earlier is curious. The Tribunal is required to evaluate and weigh the evidence. Witnesses do not have that responsibility. The applicant gave his evidence on oath. He was cross‑examined and his evidence was credible.
68. The applicant said that he was not aware or was not prepared to admit until recent years that the events to which he was exposed in Vietnam were frightening and that he had feared for his life. He also indicated that he was not prepared to discuss events of this type, including with his wife, until he was encouraged to seek professional help. Ultimately he was engaged in a period of extensive treatment at the PTSD clinic at the Repatriation Hospital in Melbourne.
69. Dr Gelb recorded that the applicant had told him that confiding in me and completing my questionnaires has been the most difficult task ever set for (him). Dr Schrueder recorded that the applicant had told him that he had been a professional soldier, that he should just get on with life and not discuss his experiences and he believed that PTSD was just garbage and he scorned those complaining of it. Dr Schrueder formed the opinion that the condition of chronic PTSD had been suppressed until the last few years and he has engaged in psychotherapy which has been helpful.
70. It would appear also that the applicant was cautious and or unwilling to discuss his service with two psychiatrists appointed by the respondent namely, Dr Robinson and Dr Seabridge.
71. Despite applying in 1994 for acceptance of the condition of anxiety the applicant did not volunteer his history to Dr Robinson of any of these events in Vietnam. The applicant said I gave the standard answer, if you like. I relied on the doctor to analyse me. I can only say what I would normally answer someone who asked me that I didn't know (Trans. p49). With respect to the consultation with Dr Seabridge, the applicant said
I must say I didn't feel well served by Dr Seabridge because he was not diagnostic in my opinion. He didn't ask me questions. He asked me to tell him what had happened. After spending three quarters of the time allotted to my appointment telling me that DVA are not paying PTSD anymore and that officers should know what they're doing anyway. (Trans. p55 – 56)
72. Dr Steer, a former LMO of the applicant reported in September 2002 (Tdocs, p20 in the applicant's claim for acceptance of PTSD / anxiety) collapsed and hospitalised Vietnam for stress. Avoids talking about it. Nightmares, emotional liability – weeping triggered by emotional content – films etc.
73. Dr Seabridge reported that the applicant does not report anything from his period of service in Vietnam and he did not elaborate on any personal incidents or episodes of a traumatic nature. That is consistent with the evidence of the applicant that he was not prepared to divulge the events in service or his symptoms to Dr Seabridge. However, Dr Seabridge did report that the applicant is sentimental and can be moved to tears by prompts relating to army matters. Dr Robinson concluded that the applicant suffered from anxiety with associated depression and whilst he did not record any episode of service giving rise to anxiety or stress or PTSD (probably consistent with the applicant's evidence of the consultation, refer above) he did conclude that the applicant did enjoy his service in Vietnam although he said that he was on occasions shot at. It follows that there is some, although very limited acknowledgement by Doctors Robinson and Seabridge that something or some events in service in Vietnam were capable of producing an emotional response or reaction.
74. To conclude this part it is appropriate to reproduce part of the final paragraph of the report of Dr Cooper (Ex A1) because it is a compelling opinion arising out of his clinical observations.
From a clinical perspective, Mr Coulter's manner was to underestimate rather than exaggerate. His personal history does not suggest a person with honesty problems or a propensity to malinger, rather the opposite. His delays in understanding his problems and accessing treatment are typical of Vietnam veterans and particularly those who were officers or career soldiers.
75. Doctors, Gelb, Stauss, Schrueder and Cooper are also psychiatrists and were all of the opinion that the applicant suffered from PTSD. In reaching that conclusion they relied on histories given by the applicant of specific events in service. Those events, but for some slight inconsistencies in description by the doctors compared to the description given by the applicant in evidence, are consistent with the evidence he gave in these proceedings and on the evidence heard and by reference to the reports prepared (and read) I am satisfied that the diagnosis of PTSD was well founded because as I indicated above I am satisfied that the events in service, except the Hickman County episode did occur.
76. I am satisfied also that some of the events did amount to experiencing a life threatening event.
77. In the Tribunal decision of Re Giger and Repatriation Commission [2007] AATA 2000 at [20], Deputy President Hack decided that the events that constitute a category 1A stressor all involve events that directly impact upon the life of the person in question rather than someone remote from that person. In Re Sanderson and Repatriation Commission [2008] AATA 891, Members Fice and Breen decided at [99] we understand that the life threatening event must be experienced by the claimant and not by some other person.
78. The applicant relied on three events which involved the actual discharge of ammunition at or near him. The shootings by South Vietnamese Police in Saigon exposed him to passing bullets such that he was required to take shelter in a doorway. He said that the bullets passed very close to him and he could hear the noise of their passage. When onboard the LCM, he was exposed to the accidental discharge of 50 calibre ammunition from an adjacent United States patrol boat. That event was sufficient to cause him and others onboard to lie flat on the deck whilst the bullets ricocheted off the side of his vessel. Whilst onboard the same vessel, during the same journey, he was exposed to so called friendly fire from South Vietnamese manning a guard post on a bridge. Those three events clearly are life threatening because they directly impacted upon him and exposed him to the threat of death. Those events formed, in part, the histories taken by Doctors Strauss, Gelb and Cooper who also had the benefit of a detailed description of the events in a statement prepared by the applicant dated 7 May 2007. Dr Schrueder also had a history of the shooting in Saigon. The applicant spoke of these events in his evidence. He recorded it in his statement of 9 May 2007. Indeed Dr Robinson, despite the limitations of his report, recorded he said that he was on occasions shot at.
79. Mr Barsley described the near impossibility of obtaining reports from US personnel and in those circumstances a record of the discharge of ammunition from the patrol boat escorting the applicant's vessel on the Song Rai river would not have been located. It appears that Mr Barsley had an incomplete or inaccurate description given to him of the bridges which the applicant said were being guarded and accordingly he was unable to locate reports. The episode in Saigon was not reported by the applicant and it is hardly surprising that no record of it could be found. I am not satisfied that the absence of reports should weigh against the applicant. I am satisfied that he is a witness of truth and that these events did occur.
80. I am satisfied that the cordon and search mission also did occur. During that event the applicant was exposed to a life threatening event when a tank driver jumped from his tank onto the ground which was in a mine field. It may be given that description because immediately before that occurrence the same tank had driven over a landmine and one of its tracks had been blown apart. The applicant described his reaction and that of others to the potential of being exposed to the detonation of a landmine. It is to be noted that the applicant was in relatively close proximity to the location where the tank driver jumped. I need little persuasion that a life threatening event can be established by the potential detonation of a landmine.
81. That episode was reported to Dr Gelb and the applicant's reaction to the event was relayed to Mr Thomson who described the applicant's visible reaction when recounting the incident and also recorded that the applicant had told him that he had thought that he was going to die.
82. Doctors Strauss, Schrueder and Cooper all took a history from the applicant of the fire in the ARV. That in my view would have been a very distressing and frightening event because during the attempt to extinguish the fire, 8,000 rounds of ammunition were discharged but fortunately did not penetrate the armour plating at the top of the ARV. The applicant must have then been experiencing a life threatening event because he did not know whether he would have been struck by any one or more of the bullets. He must have been sufficiently alert to the dangers as evidenced also by the statement of Mr Catterall who recorded that he was ordered to jump away from the top of the ARV and in so doing he suffered injury.
83. In addition to the applicant's evidence of this event, a history was given of it to Doctors Strauss, Schrueder and Cooper. Support for the event was also given by the statement of Mr Catterall. Mr Barsley would not have found any record of that event because none was made by the applicant.
84. The event involving the Caribou aircraft was the subject of extensive investigation by Mr Barsley of a number of high ranking officers and senior personnel within the RAAF, all of whom were rigid in their opinion that the event as described would have been the subject of report. Additionally it is likely that the repair to the aircraft would have been recorded in maintenance data or in the maintenance log of that particular aircraft.
85. Mr Barsley did not enquire whether maintenance logs or records existed and whether such a record could be found for this aircraft. It was also learnt that a number of Caribou aircraft were sold after the Vietnam conflict ended with their log books. If this aircraft was sold any recording in its maintenance log book would never have been located by Mr Barsley.
86. An event of this type probably would have required reporting but on the evidence heard the replacement of a damaged propeller was relatively simple and it is conceivable that a report would not have been made. There was evidence in these proceedings by the applicant that he himself did not complete a report in respect of another episode because it would have involved paper work. Perhaps those responsible for the replacement of the propeller on this aircraft had similar thoughts. Perhaps in fact a report was completed but could not be located. I am not prepared to dismiss the event as not having occurred because records could not be found. I am prepared to accept the applicant's evidence and find as a fact that this episode did occur.
87. The issue however is whether it was a life threatening event. More precisely the question needs to be asked, and answered, is, what was the event? Was the event the sound of a bang that the applicant described and which he initially thought was the sound of the aircraft being subjected to attack? Coupled with his belief that aircraft accidents occur on takeoff and landing, it would not be difficult to comprehend that that event would be the experiencing of a life threatening event. The event however of the aircraft coming to a halt with all passengers being able to disembark and learning of the banging noise being caused by a faulty propeller would not of itself be the experiencing of a life threatening event.
88. That the applicant was frightened, that passengers on the aircraft apparently became white in complexion and also expressed anxiety by the sound that they heard before they disembarked, satisfies me that the event being the banging type noise heard in the circumstances of taxiing along the runway for takeoff was a life threatening event.
89. Whilst I am satisfied that all of the events except for the Hickman County episode did occur, only the events as described above amount to the experiencing by the applicant of a life threatening event.
90. The remaining episodes of the applicant coming across a spent bullet and the episode involving the black Citroen on the description of the respective events would not in my view amount to the experiencing of a life threatening event.
91. The events where the applicant was exposed to shootings being the event in Saigon, the discharge of the machine gun from the United States patrol boat, being fired upon from South Vietnamese guard posts on the Song Rai river and the discharge of ammunition during the ARV fire, were all life threatening. In fact Dr Cooper reported that the applicant continues to suffer from flashbacks and dreams of the episode in Saigon and the ARV fire. The exposure to the life threatening event of being at or near a place where a landmine had the potential for detonation should not be underestimated, nor should the Caribou incident.
92. Without the intimacy of the enquiry by these proceedings, the evidence of the applicant and the documents lodged, the respondent might be excused for its belief that the applicant's evidence was unreliable.
93. There is, now that this review is concluded, no merit in my view for a finding of that type but rather being satisfied that the events as described, subject to one exception, did occur and being satisfied also that the majority of those events do amount to the experiencing of a life threatening event, I am satisfied, if not already apparent, that the PTSD suffered by the applicant is war‑caused.
94. There is no evidence of the applicant ever suffering PTSD before his period of service in Vietnam (during which the above episodes occurred). That diagnosis was made later. It follows that the applicant suffered a life threatening event, a Category 1A stressor, before the clinical onset of PTSD. The qualifying parts of Factor 6(a) of the Statement of Principle are therefore satisfied.
95. The decision under review must therefore be set aside and in substitution the application should be remitted to the respondent for assessment of pension.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Dates of Hearing 27 and 28 October 2008
Date of Decision 4 December 2008
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Ms J McCulloch
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