Davis and Repatriation Commission

[2007] AATA 1722

Administrative Appeals Tribunal

DECISION [2007] AATA 1722

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600915

VETERANS'       APPEALS        DIVISION		)
Re		WILLIAM DAVIS

Applicant

And REPATRIATION COMMISSION  

Respondent

Tribunal:  G. D. Friedman, Senior Member   

Date:24 July 2007

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal sets aside the decision under review and substitutes a decision that generalised anxiety disorder is war-caused with effect from 8 January 2005.  The Tribunal remits the matter to the respondent for assessment of rate of pension.

(sgd) G.D Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - generalised anxiety disorder - stressful events - whether condition war-caused - whether serious default, wilful act or breach of discipline 

Veterans' Entitlements Act 1986 ss 9, 9(3), 120(1), 196B(2)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

Stoddart v Repatriation Commission (2003) 197 ALR 283

REASONS FOR DECISION

24 July 2007 G. D. Friedman, Senior Member

1.        William Davis served in the Australian Army as a National Serviceman from 4 October 1967 to 3 January 1970.  He claims that his anxiety condition is related to his service in Vietnam in 1969, where he was a linesman in a signals squadron for ten months.

2.        The issues before the Tribunal are:

·What is the medical condition suffered by Mr Davis?

·What is the legal framework?

·Is the condition war-caused?

WHAT IS THE MEDICAL CONDITON SUFFERED BY MR DAVIS?

3.        Mr Davis made a claim for disability pension on the basis of dislocated right thumb, breathing problems and stress and anxiety.  The respondent accepted that osteoarthrosis right thumb is war-caused, and the Veterans’ Review Board found that chronic obstructive airways disease is war-caused.

4.        The Tribunal is required to determine to its reasonable satisfaction whether Mr Davis suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). There was no dispute that Mr Davis suffers from generalised anxiety disorder.

WHAT IS THE LEGAL FRAMEWORK?

5.        Mr Davis served in Vietnam from 6 January 1969 to 28 November 1969 which is operational service under the Veterans’ Entitlements Act 1986. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. This section requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

6.        In the circumstances of this case, where Mr Davis has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person…

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)….

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP…

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If the Tribunal is so satisfied, the claim must fail…

IS GENERALISED ANXIETY DISORDER WAR-CAUSED?

7.        Mr Davis said that before enlisting in the Army he had a number of jobs including the Victorian Railways.  He said that he was not aware of any emotional problems before being called up for National Service, and was a light smoker and drinker.  He was sent to Vietnam after undertaking corps training as a linesman/rigger and jungle warfare training.  He told the Tribunal that on arrival in Vietnam he was sent to Saigon to work in communications at the Australian headquarters rather than the Australian bases at Vung Tau or Nui Dat, and was anxious about his safety and well-being.  He also felt vulnerable and isolated as he was separated from others in his unit for the first four or five nights.

8.        Mr Davis explained that his anxiety disorder began during his service in Vietnam.  He stated that in addition to the general stress of working in a communications system in a war zone there were a number of stressful incidents that caused his condition, resulting in ongoing flashbacks and nightmares, as well as heavy alcohol consumption.  The first occurred in Saigon in about February 1969 when he witnessed a Buddhist monk self-immolating (the immolation incident).  He said that he was in a truck at the time and saw a bright orange sheet on fire and could smell burning flesh.  Mr Davis said that the incident brings back haunting memories and he has ongoing nightmares and flashbacks about the incident.  He said that the smell of cooked bacon reminds him of the burning flesh.

9.        The second incident also occurred in Saigon.  Mr Davis stated that in about March 1969 he was in a truck and witnessed a South Vietnamese Policeman shoot two young people on a motorcycle who apparently refused to stop when directed (the shooting incident).  He said that shortly afterwards he saw the victims lying motionless on the side of the road and blood on one of them.  Mr Davis stated that his truck did not stop, but the memory of the incident still haunts him.

10.      The third incident occurred soon after the shooting incident.  Mr Davis said that a young Vietnamese man stole his watch and Mr Davis dislocated his right thumb in apprehending the perpetrator (the watch incident).  He said that he sought medical treatment and was kept in hospital for three days.

11.      The fourth incident took place in a bar in Saigon where he had been drinking and playing cards.  Mr Davis said that a Vietnamese woman was disclosing his cards to others and he struck her in the face with his hand, after which a Vietnamese barman escorted him out of the bar at gunpoint (the bar incident).  Mr Davis said that he feared for his life.

12.      The fifth incident occurred shortly before his transfer to Vung Tau.  Mr Davis described how he had been drinking in a bar and was walking in the street with two others when he was confronted by five men, who came too close.  Mr Davis said that one man produced a sword and wielded it in a threatening manner (the sword incident).  Mr Davis said that he drew his rifle in self-defence and shot the man in the stomach, and ran from the scene in fear of reprisal.  He stated that he did not know the extent of the man’s injuries and he did not report the incident.  Mr Davis said that he feared for his life and the incident has been on his mind ever since.

13.      The sixth incident occurred at Vung Tau when he was attending the outpatients section of the field hospital.  Mr Davis said that he witnessed the arrival of a helicopter and saw a wounded soldier covered with blood (the casualty incident).  Mr Davis stated that he was asked to help carry the casualty on a stretcher and was sickened by the sight of the soldier.

14.      In a report dated 8 February 2007 (Exhibit R1) Dr N. Strauss, consultant & occupational psychiatrist, said that he believes Mr Davis has had the anxiety condition since his service in Vietnam, causing mood swings, irritability  and interpersonal relationship problems.  Dr Strauss said Mr Davis had a number of distressing experiences in Vietnam that could be classified as severe psycho-social stressors, and that the SoP for generalised anxiety disorder has been met.

15.      In a report dated 13 January 2007 on behalf of Writeway Research Service Pty Ltd (Exhibit R2) Mr H. Conant referred to the immolation incident and stated that acts of self-immolation by Buddhist monks were rare, and the only one believed to have occurred in Saigon was in 1967.  In relation to the shooting incident Mr Conant stated that he could find no record of such an incident, which he said was strong proof that the incident did not occur as described by Mr Davis.  In relation to the watch incident Mr Conant said that an entry in Mr Davis’ medical records shows a fractured right thumb on 24 March 1969 was sustained in a fight and required hospital treatment.

16.      In relation to the bar incident Mr Conant said that Mr Davis had provided insufficient information for proper investigation, but such an incident would probably have been reported, and the absence of a report is a strong indication that it did not occur.  In relation to the sword incident Mr Conant said that the shooting of a Vietnamese civilian would have attracted attention from civil and military authorities, and the absence of a report is a strong indication that it did not occur.  In oral evidence he said that Australian personnel were not permitted to carry weapons while in civilian dress.  In relation to the casualty incident Mr Conant said that Mr Davis would not have been allowed to watch activities that would bring him in contact with casualties.  Further he said that there were sufficient personnel at the hospital to treat casualties, and there was little likelihood that Mr Davis would have witnessed unloading of wounded soldiers.

17.      In oral evidence Mr Conant agreed that documents produced to the Tribunal (Exhibits A1, R3 and R4) suggest that the self-immolation he referred to might have occurred in 1963 rather than 1967, and that his research on the matter was brief.    He agreed that in the absence of reliable information from military records his report was based largely on his views about the likely action on the part of military and civilian authorities in Saigon at the relevant time. 

18.      In relation to the first step from Deledio, after considering Mr Davis’ evidence and the evidence from Dr Strauss about the generalised anxiety disorder and service in Vietnam, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Davis.  Therefore he satisfies the first step.

19.      In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP under s 196B(2) of the Act, so Mr Davis satisfies the second step. The SoP is No. 1 of 2000 concerning Anxiety Disorder. Factor 5 provides:

(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only

…

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or

In paragraph 8 of the SoP:

“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

20.      In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 the Court held that a “reasonable hypothesis” involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.  The Tribunal has considered all the material, including the evidence from Mr Davis and the medical evidence from Dr Strauss, and considers that the material is consistent with factor 5(a)(ii).  The material points to the hypothesis linking Mr Davis’ operational service with the anxiety disorder.  Therefore Mr Davis satisfies the third step.

21.      In relation to the fourth step from Deledio the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Davis’ anxiety disorder was due to his operational service within the meaning of s 9 of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved. There are both objective and subjective elements to consider when assessing claims of stressful circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).

22.      The Tribunal has some difficulty with most of the conclusions reached by Mr Conant in the Writeway report.  Each incident except the casualty incident occurred in Saigon, where Mr Conant had little practical experience.  In addition, the incidents occurred on the streets or in bars in a war zone involving South Vietnamese Police and civilians, so accurate records or witness statements involving the discharge of weapons or investigation of alleged breaches of discipline or the law are not available.  Similarly Mr Conant conceded that his research into self-immolation during the Vietnam War was limited.  For these reasons the Tribunal places little weight on the report.

23.      The Tribunal finds Mr Davis to be truthful witness who described the stressful incidents in a forthright and candid way.  He admitted that some of the incidents had been stressful but did not cause lasting distress.  He did not seek to embellish the consequences of several of the incidents.  His evidence was largely consistent with the history he gave to Dr Strauss, whose evidence and conclusions were generally not disputed.  In relation to the immolation incident the Tribunal accepts Mr Davis’ evidence that he witnessed a person in an orange robe who was on fire, and that he has flashbacks of the incident, he wakes sweating, and the smell of bacon makes him recall the incident.  This is consistent with the documents that suggest that self-immolation during the Vietnam War may have occurred in the period 1963 to 1970.  The Tribunal accepts that the event occurred as an identifiable occurrence that evoked feelings of substantial distress in him, and this constitutes a severe psychosocial stressor as defined in the SoP.  After considering the medical evidence the Tribunal finds that clinical onset of generalised anxiety disorder was during Mr Davis’ service in Vietnam.  Therefore Mr Davis satisfies the fourth step.

24.      The Tribunal also finds that the bar incident occurred as described by Mr Davis and that it constitutes a severe psycho-social stressor.  The remaining incidents do not appear to have had the requisite impact on him and are not severe psycho-social stressors.

DOES SECTION 9(3) OF THE ACT APPLY?

25. Section 9(3) of the Act provides;

Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:

(a)       resulted from the veteran’s serious default or wilful act; or

(b)       arose from:

(i)        a serious breach of discipline committed by the veteran; or

(ii)an occurrence that happened while the veteran was committing a serious breach of discipline.

26. At the hearing the respondent submitted that some of the incidents involved actions by Mr Davis that, if they occurred, bring the matter within s 9(3) of the Act. The respondent argued that the actions amount to a breach of discipline, serious default or wilful act, and that as a consequence paragraph 1 of s 9 of the Act does not apply and the application cannot succeed. In particular the respondent claimed that evidence by Mr Davis demonstrates serious assault of a Vietnamese civilian (the bar incident) and a breach of discipline arising from unauthorised use of a weapon while in civilian dress (the sword incident).

27. The Tribunal does not accept these submissions. The issue was not raised at any time before the hearing or during the taking of evidence at the hearing. There was no investigation of the incidents by Australian authorities and there is no record of any investigation by civil authorities in Saigon. There is insufficient material to support a finding that s 9(3) of the Act applies.

DECISION

28.      The Tribunal sets aside the decision under review and substitutes a decision that generalised anxiety disorder is war-caused with effect from 8 January 2005.  The Tribunal remits the matter to the respondent for assessment of rate of pension.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)              Mara Putnis

Associate

Date of hearing:  24 July 2007

Date of decision:  24 July 2007

Counsel for the applicant:            Mr G. Chancellor

Solicitor for the applicant:            Williams Winter

Advocate for the respondent:       Mr K. Rudge

Solicitor for the respondent:         Advocacy Section, Department of Veterans’ Affairs