Dee and Repatriation

[2003] AATA 528

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/600

VETERANS' APPEALS DIVISION		)
Re		JAMES RAYMOND DEE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date6 June 2003

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor the Tribunal finds that the applicant’s post-traumatic stress disorder is war-caused.

....................(Sgd).....................

Mr B J McCabe
  Member

ORDER TO AMEND DECISION

Tribunal Mr B J McCabe, Member

Date10 June 2003

PlaceBrisbane

WHEREAS the Tribunal made a decision in this matter on 6 June 2003, and it has come to the Tribunal’s attention that there were errors in that decision;

AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the errors with the least cost and inconvenience to the parties;

THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:

1.    The decision in this matter be varied to read:  "The Tribunal sets aside the decision under review and in substitution therefor the Tribunal finds that the applicant's post-traumatic stress disorder is war-caused.  The Tribunal remits the matter to the respondent for reconsideration in accordance with the Tribunal's reasons for decision."

MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – PTSD – whether veteran’s PTSD caused by his war-service – whether veteran suffered a severe stressor - attack by sea snakes – whether threat of death or serious injury or risk to physical integrity –whether attack by sea snake, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the veteran, is capable of and did convey the risk of death or serious injury or to physical integrity

Veterans’ Entitlements Act 1986

Stoddart v Repatriation Commission [2003] FCA 334

Re Mulvaney and Repatriation Commission [2000] AATA 535

REASONS FOR DECISION

6 June 2003 Mr B J McCabe, Member  

Introduction

1.      Mr James Dee is the applicant in these proceedings. Mr Dee was a naval clearance diver who served aboard HMAS Vampire while it operated in South Vietnamese waters in 1967. He suffers from post-traumatic stress disorder (PTSD). He says the PTSD can be traced back to two incidents that occurred while he was working as a diver in Vung Tau Harbour. He says a charge exploded near him while he was in the water, and he was attacked a by a sea snake. 

2.      The Repatriation Commission did not accept that either of these two events occurred. In any case, the respondent says neither incident was capable of constituting a severe stressor within the meaning of the relevant statement of principles. The Veterans’ Review Board agreed, and Mr Dee now appeals to the Tribunal.

The Material Before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It heard oral evidence from Mr Dee and received his statement. The Tribunal also heard evidence from Kevin Connolly, John Shearer and Nigel Stoker who served on the Vampire. Extracts from a divers’ log were also tendered in evidence. Captain Harry Joseph RN (Ret) also gave evidence and provided a report.

4.      Mr Gladstone represented Mr Dee. Mr Williams appeared for the respondent.

The Matters in Dispute

5.      The respondent accepts the applicant suffers from PTSD. It also accepts that the events in question, if they occurred, took place while the applicant was on operational service. The Tribunal must decide if it is satisfied the applicant experienced “a severe stressor” within the meaning of the relevant Statements of Principles published by the Repatriation Medical Authority (SoP No 3 of 1999, as amended by No 54 of 1999).

The Facts

6.      Mr Dee claims a charge exploded in the water near him while he was conducting a dive shortly before the Vampire left Vung Tau Harbour. The facts are set out in the findings of the Veterans’ Review Board at paragraphs 15-19. The evidence at the hearing was more detailed, but it conformed in substance to the findings of the Board.

7.      I indicated at the conclusion of the hearing I was not satisfied the incident with the charge took place as Mr Dee alleged. I do not intend to reflect on his integrity as a witness, but the account he gave was too vague to draw definite conclusions. I note in particular he was unable to identify the source of the explosion – there were no boats apart from the tender and the ship itself nearby – and he did not raise his concerns with anyone on the ship until some time after the event. There is no evidence that anyone else heard the explosion. The applicant explained he did not discuss the matter because the culture of the ship was such that one did not express concerns or make a fuss about incidents for fear of being regarded as a trouble-maker or a whinger. While an explosion may have occurred, it is not clear how close it was and what effect it had.

8.      The incident with the sea snake falls into a different category. Mr Dee says there were many sea snakes in Vung Tau Harbour, and one learned to ignore them. But on one occasion, he says he came literally face to face with a sea snake: it lunged at his face and struck his face mask and breathing apparatus. He says he swam backwards to get away from the creature. He says the encounter left him shaken and contributed to the development of PTSD. I accept the attack occurred as Mr Dee described it.

9.      Mr Williams for the respondent says there was no evidence the sea snake in question was poisonous. The Tribunal understands many (if not all) species of sea snake are venomous. In any event, Mr Dee did not have the opportunity to determine the sea snake’s qualities as it was attacking his face. The event occurred very quickly and the water was murky. He said he assumed the snakes were dangerous, and I believe him. Moreover, I am satisfied the belief was a reasonable one in the circumstances.

10.     There was ample evidence that Mr Dee was troubled by his experiences. He became involved in fights and was counselled by his supervisors. He drank heavily and his performance as a sailor was degraded. This deterioration began shortly after the incidents he described in Vung Tau Harbour.

Could the Encounter with the Sea Snake Amount to “Experiencing a Severe Stressor”?

11.     The Federal Court’s recent decision in Stoddart v Repatriation Commission [2003] FCA 334 considers the correct approach to the question. Mansfield J said (at paragraph 55):

“the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”

12.     I am satisfied that coming face to face with a lunging sea snake that may have been venomous would terrify a reasonable person who was in the same position with the same knowledge as Mr Dee. I think it is altogether different from and more serious than the encounter with rats described in Re Mulvaney and Repatriation Commission [2000] AATA 535. It follows I accept that the encounter with the sea snake is capable of amounting to “experiencing a severe stressor” that occurred prior to the onset of the symptoms of PTSD.

Conclusion

13.     The decision of the Veterans’ Review Board is set aside.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  1 April 2003
Date of Decision  6 June 2003
Solicitor for the Applicant          Mr Gladstone, Solicitor
For the Respondent                  Mr Williams, Departmental Advocate