Day and Repatriation Commission
[2003] AATA 287
•28 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 287
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1035
VETERANS' APPEALS DIVISION )
Re JEFFREY MICHAEL DAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date28 March 2003
PlaceBrisbane
Decision The Tribunal:
(a) sets aside the decision under review and in substitution therefor determines that Jeffrey Michael Day suffers from war-caused post traumatic stress disorder, alcohol dependence or alcohol abuse and depressive disorder;
(b) remits the matter to the respondent for assessment of a rate of pension payable to the applicant in accordance with these reasons for decision on and from 8 February 2000.
.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - pension - entitlement - whether or not the applicant experienced a severe stressor during his service in Vietnam - whether post traumatic stress disorder is war-caused
Veterans’ Entitlements Act 1986 ss 9, 120, 120A
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvaney and Repatriation Commission [2000] AATA 535
Re Cranage and Repatriation Commission [2000] AATA 1119
Re Jehn and Repatriation Commission [2000] AATA 484
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
28 March 2003 Mr IR Way, Member 1. This is an application by Jeffrey Michael Day (“the applicant”) for review of a decision of the Repatriation Commission made on 18 August 2000, and affirmed by the Veterans’ Review Board (“VRB”) on 21 August 2000, that the applicant does not suffer from war-caused post traumatic stress disorder (PTSD) or 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 Tribunal Act 1975 (T1-T6) and documentary evidence as follows:
§Exhibit A1 Applicant’s Statement dated 18 February 2002
§Exhibit R1 Report of Dr Peter Mulholland dated 5 July 2002
3. The applicant was represented by Mr D O’Gorman of Counsel and the respondent was represented by Mr J Stoner, a Departmental Advocate. The applicant gave oral evidence.
4. The applicant was born on 1 August 1948 and served as a National Serviceman in the Australian Regular Army from 30 September 1969 to 8 October 1971, including operational service in Vietnam from 13 March 1971 to 9 September 1971.
5. The applicant’s accepted service-related disabilities are:
§Bilateral sensori-neural hearing loss
§Post Traumatic Stress Disorder (Treatment only)
§Depression (Treatment only)
6. His non-service-related disabilities are:
§Localised Osteoarthrosis of the Left Knee
§Alcohol Dependence or Alcohol Abuse
§Post Traumatic Stress Disorder
7. The applicant served in the Corps of Royal Australian Electrical and Mechanical Engineers and during his service in Vietnam he was employed as an Armourer, posted to a field workshop but detached to 2 Australian Ordinance Depot in 1 Australian Logistics Support Group (“1 ALSG”) Vung Tau.
8. There is no disagreement between the parties that the applicant suffers from PTSD, alcohol dependence or alcohol abuse and depressive disorder, and in view of this and on the material before it, the Tribunal so finds.
9. The applicant’s hypothesis is that he experienced a severe stressor during his service in Vietnam, such that his PTSD is war-caused and, furthermore because of his war-caused PTSD, the applicant suffers from war-caused alcohol dependence or alcohol abuse and war-caused depressive disorder.
Legislative Framework
10. 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;…”
11. 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.”
12. 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.”
13. The RMA has, pursuant to section 196B(2) of the Act, determined SoPs in respect of PTSD, alcohol dependence or alcohol abuse and depressive disorder. It is common ground between the parties and the Tribunal accepts that the relevant SoPs in this matter are:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
§Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
§Depressive Disorder – Instrument No 58 of 1998
14. Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) (PTSD) relevantly states:
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or …”
and defines “experiencing a severe stressor” as follows:
“‘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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as 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;”
15. Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse) relevantly provides:
“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:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or …”
16. Instrument No 58 of 1998 (Depressive Disorder) relevantly states:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are: …
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or …”
Applicant’s evidence
17. In his written statement dated 18 February 2002 (Exhibit A1) the applicant describes six events which occurred during his operational service in Vung Tau and which he claims resulted in his experiencing a severe stressor. These are as follows:
“2.Firstly, the unit that I was stationed in, was right beside the hospital. Frequently, medivacs would land at the hospital. One day, a medivac landed and they called upon myself and a couple of felloe servicemen to assist in taking the injured inside. The gentleman that I helped to carry inside had had his leg blown-off. The wounded soldier was not covered in any way and I could see all of the blood and the bandages which had been hastily applied to him. This sight has stuck in my memory ever since. It made me very aware of my own mortality and the dangers which I faced being in a war area. It increased by vigilance.
3.During my service, I was deployed in the workshop where I would have to repair and do maintenance on equipment. There was one incident where a number of grenade launchers were bought in for repair. While I did not know which battle they had come from, I was aware that they had been extensively damaged as part of the war effort. There was blood and skin tissue on the damaged instruments. It was my job to strip off the parts, clean them, and then repair the launchers as best I could, or salvage any parts which were still usable. This incident once again made me aware of the dangers which I faced during my service and may me fearful for my life as I realised that fellow Australians had been injured or killed as a result of their service. This made me more fearful that we may come under attack at any time and that I may be injured.
4.also during my service, I was required to assist a mechanic to clean up 3 APCs which had been blown up.
5.We received regular briefings in what was going on in the war. A very short time before these APCs came in, we had been informed of an attack in which APCs were damaged and 15 people had been killed. I therefore believe that these APCs were those involved in the incident that had been reported to us.
6.As we were cleaning them up, one of the other soldiers found a human finger in the wreckage. I found this sight to be extremely unnerving. I feared for my own life and my own physical integrity serving in the war zone when I saw this sight and was horrified that this had happened to someone.
7.When asked what to do with the finger, a Commanding Officer told us that we just had to throw it down the pit toilet.
8.…
9.On two occasions I was on guard duty overnight on an Australian supply base which was situated on an American Airbase. At times I would hear firing coming from the American base next door and was afraid that we were coming under attack. Bursts of gunfire would come out of nowhere. You could hear the bullets ricocheting around. The American guards were quite trigger-happy and would shoot a dog if it came into their property. However, due to the circumstances at the time, you were always fearful and ever vigilant and worried that it was actually a true attack. You were also fearful of being struck by one of the bullets which you could hear ricocheting. I found these events to be very disconcerting and was keyed up on edge as a result of them.
10.On another occasion, I was performing guard duty around our compound. I was walking along with another gentleman just on dark. We had walked up the side of a shed and all of a sudden a bullet came through the wall a short distance from our heads. We hit the deck immediately. I feared for my life at this time and was extremely frightened as the bullet had come very close to striking us. I later found out that a Lieutenant had been cleaning his pistol inside the building and stated that he accidentally fired it.
11.…
12.A further firing incident occurred when I was asleep one night. Where we were, there was almost an unlimited amount of alcohol due to the cheapness of alcohol there. A gentleman had become intoxicated and thought that he was seeing little green men coming through his window. All of a sudden, he opened fire on his window. He was in the building next door to one where I was sleeping. All of a sudden out of nowhere I head the noise of firing and bullets started coming through the wall of our building. I thought that we had come under attack. Myself and the other gentlemen who had been sleeping in the building jumped out of beds to the ground. Luckily, the gentleman was restrained after a short time. I was fearful for my life at this time.”
18. In his oral evidence the applicant confirmed what he had said in his written statement and with respect to the stressful incidents set out above added:
(a)With respect to assisting a medivac evacuation the applicant said that the soldier who had his leg blown off was taken off the helicopter and then a sheet was put over him. However, the medic attendant lifted the sheet to see the extent of his injuries and he (the applicant) could see the extent of the soldier’s injuries.
(b)With respect to the hand grenade launchers he said this was a one-off activity and the skin tissue he observed was about the size of his fingernail and he knew it was skin, having skinned himself on various occasions.
(c)When asked to comment on how he was scared on seeing a finger in the APC which had been blown up in a forward area and back-loaded some 50 kms to Vung Tau, he said he felt he could have been put into a position in an APC where the same could happen to him. He said he was required on occasion to ride in an APC on guard duty in the 1 ALSG area. He agreed that he knew that the Vung Tau area was a relatively safe area. However, in briefings before going on leave into the town at night he said soldiers were warned about possible explosions.
(d)With respect to the Australian Supply Base situated on a US Base, the applicant said the American base was in the Vung Tau Air Base and that in addition to hearing gunfire and, contrary to his written statement, he had observed a bullet coming through the Australian shed on the Base, some 5–6 metres from where he was in the shed. He said he experienced this event about one month after his arrival in Vietnam and that this was the first of the stressful events he said he experienced.
(e)He said the accidental discharge by an AOD Lieutenant was within one metre of his face.
(f)He said the firing by a drunken soldier was from an adjacent hut, some 15 feet from his own and five bullets came about 18 inches above his head where he was sleeping next to the wall. He said the weapon used was a submachine gun firing single shots in rapid succession and that the huts were externally sandbagged to a height of approximately two feet.
Submissions
19. Mr O’Gorman, for the applicant, submitted that all three conditions suffered by the applicant, namely PTSD, alcohol dependence or abuse and depressive disorder are causally related to the applicant’s service in Vietnam as required by section 9 of the Act. It was submitted that the applicant meets factor 5(a) of Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) (PTSD), namely, experiencing a severe stressor and therefore the applicant suffers from the war-caused psychiatric disorder such that he meets factor 5(a) of Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse) and factor 5(c) of Instrument No 58 of 1998 (Depressive Disorder).
20. Mr O’Gorman grouped the applicant’s experiences into three groups. The first group comprises what can be described as the “weapon firing incidents”.. The second group comprises the “equipment cleaning incidents” and lastly what can be described as the “casualty clearing event”.
21. With respect to the first group it was submitted that these all fall within the description of events that involved threat of serious injury or threat to the applicant’s or another person’s physical integrity and therefore were severe stressors within the meaning of that term in the relevant SoP.
22. With respect to the other two groups, it was Mr O’Gorman’s submissions that these events should be considered against the events given as examples of severe stressors in the relevant SoP, in particular:
“(iii)witnessing casualties or participation in or observation of casualty clearance…”
23. He contended that the casualty clearing event clearly fitted the description of examples in the SoP and that, while not as clear, so did the equipment cleaning incidents.
24. Mr Stoner, for the respondent, accepted that a definition of “experiencing a severe stressor” should be interpreted on the plain English meaning of the words and that the three examples quoted should only be taken as examples. However, he submitted that any such interpretation should be made in the context of the whole PTSD SoP and, in particular, paragraph 2(b)(A)(i) and 2(b)(A)(ii). In it consideration of this matter Mr Stoner referred the Tribunal to Re Budworth and Repatriation Commission [2000] AATA 127, Re Mulvaney and Repatriation Commission [2000] AATA 535, Re Cranage and Repatriation Commission [2000] AATA 1119, Re Jehn and Repatriation Commission [2000] AATA 484 and Re Slattery and Repatriation Commision (1998) 52 ALD 90.
25. Mr Stoner submitted that the weapon firing incidents were all observed by the applicant as an aftermath of the event and it could not be said that the events involved actual or threat of serious injury, the applicant being only in the proximity of the firing. As such, it was submitted that none of these events resulted in the applicant experiencing a severe stressor.
26. With respect to the equipment cleaning events, it was Mr Stoner’s submission that both of these events were too remote to meet the definition of “experiencing a severe stressor”.
27. With respect to the casualty clearing event, Mr Stoner accepted that this event was less remote than the equipment cleaning events. However, he submitted that it was a matter for the Tribunal to determine on the evidence before it whether the casualty clearing event was such that the applicant experienced a severe stressor.
Consideration
28. 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.”
29. As has already been indicated, the Tribunal is satisfied that the applicant suffers from PTSD, alcohol dependence or alcohol abuse and depressive disorder. On all of the material before it the Tribunal is of the view that the material points to an hypothesis as put forward by the applicant, that there are relevant SoPs in force (as set out in paragraph 13), and that the hypothesis, being consistent with the template to be found in the relevant SoPs, is a reasonable hypothesis.
30. Following the final step as set out in Deledio’s case, the Tribunal must consider, pursuant to section 120(1) whether it is satisfied beyond reasonable doubt that the applicant’s incapacity did not arise from a war-caused injury. In this case the applicant’s claim must succeed if the Tribunal is not satisfied, beyond reasonable doubt, that the applicant’s claimed experienced stressful events are not severe stressors within the meaning of that term in Instrument No 3 of 1999 (as amended by No 54 of 1999).
31. Turning then to the meaning of the term “experiencing a severe stressor”.
32. In Re Budworth and Repatriation Commission (supra) the Tribunal relevantly examined the provisions of the Diagnostic and Statistical Manual of Mental Disorders IV Edition (DSM-IV) where the manual includes PTSD diagnostic criteria with respect to being exposed to a traumatic event in the same terms as set out in Instrument No 3 of 1999 (as amended by No 54 of 1999) in paragraph 2(b). The Tribunal set out what the authors of DSM-IV said with respect to traumatic events as follows:
“The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; …
Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness… Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts.”
33. The Tribunal commented on this as follows:
“…the nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective ‘extreme’. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of ‘intense fear, helplessness or horror’. This is an extremely high level of reaction to extremely traumatic stressors.”
34. The grave or serious nature of a traumatic stressor as envisaged by the authors of DSM-IV is consistent with the definition in the relevant SoP of “experiencing a severe stressor” (Tribunal emphasis); and what the Tribunal said after extensively reviewing the background of diagnostic criteria for PTSD and related Statements of Principles in Re Cranage and Repatriation Commission (supra), namely:
“There is much to suggest that the opportunity to connect PTSD with service, having regard to more recent Statements of Principles, has become much more restricted and difficult to satisfy. (A more recent Statement of Principles concerning PTSD refers to ‘experiencing a severe stressor’).”
35. The respondent referred the Tribunal to Re Jehn and Repatriation Commission (supra) where the Tribunal appeared to suggest that in addition to objectively considering whether an applicant meets paragraph 2(b)(A)(i), there is also a need to consider subjective reactions. This approach is not consistent with Budworth’s case nor is it supported by what the Tribunal said in Re Mulvaney and Repatriation Commission (supra). The Tribunal respectfully agrees with what the Tribunal said in Budworth’s case and Mulvaney’s case.
36. The Tribunal further in Mulvaney’s case saw fit to make some general comments about the meaning of the phrase “physical integrity”.. The Tribunal said:
“The phrase ‘physical integrity’ is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness. In the Tribunal’s opinion, however, the connotation of that phrase, as appearing in the definition of ‘experiencing a stressor’ in cl 4 of the SoP concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase ‘threat to … physical integrity’ in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only.”
37. The Tribunal is mindful that the context in which these comments were made (“the rats incident”) differed from the circumstances pertaining in this matter. However, the Tribunal, with respect, agrees with the general thrust of the comments made.
38. Turning then to the wording of the meaning of “experiencing a severe stressor” as set out in the relevant SoP. In Re Slattery and Repatriation Commission (supra) the Tribunal held that the term “witnessed” suggested an applicant was present at an event, the term “experienced” suggested that an applicant observed or encountered and event and “confrontation” meant facing such an event. The Tribunal, with respect, agrees with these suggestions. The plain English meaning of the word “threat” is set out in The Concise Oxford Dictionary as follows:
“Declaration of intention to punish or hurt; such menace of bodily hurt or injury as may restrain a person’s freedom of action; indication of coming evil.”
39. The Tribunal is of the view, that within the context of what has been set out above and accepting that the events set out in the SoP that qualify as stressors are examples only, the task before the Tribunal is to determine whether the applicant was present at an event, or whether the applicant observed or encountered an event, or whether the applicant faced an event that involved a declaration of intention to injure him or harm his bodily wholeness or soundness; or involved a menace of bodily injury or harm to bodily wholeness or soundness, as may restrain his freedom of action; or whether the applicant was subject to an indication of coming evil such that he could suffer serious injury or probable harm of an extreme kind to his bodily wholeness or soundness.
40. And further within the above context, are any of the events claimed by the applicant to be severe stressors the same or of the same type as those set out as examples in the definition of “experiencing a severe stressor” in the relevant SoP.
41. Turning then to an examination of the claimed severe stressors.
42. The applicant’s first claimed stressor is that he participated in casualty clearance. His evidence with respect to this event is quite clear and the Tribunal is satisfied, beyond a reasonable doubt, that his account accurately records what took place. He was required to assist in carrying battle casualties arriving at Vung Tau from a forward operational area by helicopter, from the helicopter LZ to the adjacent hospital, and in so doing he observed a soldier who had one of his legs blown off. Although the wounded soldier was covered by a sheet when being stretchered to the hospital, he was initially removed from the helicopter without a sheet covering him and even after he had been covered by the sheet, a medical attendant had lifted the sheet to assess his wounds. The applicant saw the bloodied remains of the soldier’s leg and what was left of his trousers.
43. Following the approaches set out above the Tribunal is satisfied, beyond reasonable doubt, that the applicant participated in casualty clearance such that he experienced a severe stressor within the meaning of that term in the relevant PTSD SoP. That being so, the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant suffers from war-caused PTSD.
44. It follows from this finding that the Tribunal likewise is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant suffers from war-caused alcohol dependence or alcohol abuse and war-caused depressive disorder.
45. The Tribunal therefore finds that the applicant suffers from war-caused PTSD, war-caused alcohol dependence or alcohol abuse and war-caused depressive disorder, and remits the matter to the respondent for assessment of a rate of pension payable to the applicant in accordance with these reasons for decision, on and from 8 February 2000.
46. For the sake of completeness the Tribunal has considered the remaining five claimed stressful events and again, following the approaches set out above, and on all of the material before it, is satisfied, beyond reasonable doubt, that none of these events meet the definition of “experiencing a severe stressor” in the relevant SoP. However, in view of the Tribunal’s finding with respect to casualty clearance, the Tribunal being not satisfied beyond reasonable doubt of the other claimed stressors has no material effect on its decision that the applicant suffered from war-caused PTSD, war-caused alcohol dependence or alcohol abuse or depressive disorder.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 28 February 2003
Date of Decision 28 March 2003Counsel for the Applicant Mr D O’Gorman
Solicitor for the Applicant Messrs Gilshenan and Luton
Solicitor for the Respondent Mr J Stoner, Departmental Advocate
0
6
0