Drysdale and Repatriation Commission
[2011] AATA 764
•31 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 764
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2010/2573-74
VETERANS' APPEALS DIVISION ) Re DOUGLAS JOHN DRYSDALE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Lt Col R Ormston (Ret’d) (Member)Date31 October 2011
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decisions under review and in substitution for those decisions decides that Mr Drysdale’s condition of PTSD is war-caused with a date of effect of 21 June 2007; and
(b) remits the matter to the respondent for determination of the rate of pension payable to Mr Drysdale as a result of this decision.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Disability pension – Whether PTSD war-caused – Deledio steps – Whether veteran experienced a “life threatening event” within meaning of SoP – One of events relied upon satisfies SoP – Reverse onus not satisfied – PTSD war-caused – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 9, 13(1), 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Gorton v Repatriation Commission (2001) 65 ALD 609
Woodward v Repatriation Commission (2003) 75 ALD 420
Howard v Repatriation Commission [1999] FCA 1030East v Repatriation Commission (1987) 16 FCR 517
Statement of Principles Instrument No 5 of 2008
Statement of Principles Instrument No 54 of 1999
REASONS FOR DECISION
31 October 2011 Senior Member K Bean
Lt Col R Ormston (Ret’d)(Member)introduction
1. The applicant, Mr Drysdale, served in the Royal Australian Navy from 11 March 1967 to 10 March 1976. In May 1970, when he was only 18 years old, he was sent to Vietnam as part of the Navy band. Even before he was sent to Vietnam he had experienced at least one traumatic event in the course of his naval service, as he was aboard the HMAS Melbourne when it collided with the USS Frank E Evans in 1969. He also experienced a number of extremely stressful events during his relatively short deployment to Vietnam.
2. In 2005, Mr Drysdale was diagnosed as suffering from post-traumatic stress disorder (PTSD) and the respondent does not dispute that diagnosis. However, Mr Drysdale’s claim for payment of a disability pension on the basis of his PTSD condition has been rejected by the Repatriation Commission (the Commission) and the Veterans’ Review Board (VRB) on the basis that the condition is not war-caused.
3. Both the Commission and the VRB have also decided that Mr Drysdale’s disability pension should continue at 40 percent of the general rate, having regard to his accepted conditions of bilateral hearing loss and tinnitus.
4. Mr Drysdale has now sought review of the decision of the Commission, as affirmed by the VRB, by this Tribunal. It follows that the main issue before us is:
·whether Mr Drysdale’s PTSD condition is war-caused.
However before addressing that issue more directly, we propose to first set out the applicable legal framework.
legal framework
5. Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
6. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly 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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
7. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that Mr Drysdale’s service in Vietnam was operational. He also rendered eligible service from 7 December 1972 to 10 March 1976.
8. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Mr Drysdale’s PTSD condition is war-caused. That section provides relevantly 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.
Note: This subsection is affected by section 120A.
...
(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.
Note: This subsection is affected by section 120A
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction
Note: This subsection is affected by section 120B.”
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
9. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
10. Section 120A(3) provides relevantly:
“(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
...
that upholds the hypothesis.”
Sub-section (4) of s 120A excludes the operation of ss (3) in certain circumstances which are not relevant to the present proceedings.
11. The application of ss 120(1) and (3) and 120A(3) of the VE Act was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where the Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
“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 s 196B(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 ss 196B(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 s 120(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.”[1]
[1] The second sentence of Step 2 in Deledio was obiter and is not correct: Bull v Repatriation Commission (2001) 66 ALD 271. Where no SoP is in force, the veteran’s application will not necessarily fail, but must be determined in accordance with s 120(1) to (3) on the basis of the medical evidence before the Tribunal.
12. It is also established by the authorities that an hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
consideration
13. As we have noted above, the issue for our consideration in broad terms is whether Mr Drysdale’s condition of PTSD is “war-caused” within the meaning of the VE Act. The answer to that question depends upon our consideration of the issues raised at each of the four Deledio steps outlined above. We accordingly propose to address each of those steps in turn, by reference to the material before us and the contentions of the parties.
Does the material point to an hypothesis connecting Mr Drysdale’s PTSD with his service?
14. Mr Crowe, who appeared as advocate for the respondent, conceded that an hypothesis had been raised linking Mr Drysdale’s PTSD with his service and we are satisfied that that concession was correctly made. The hypothesis raised by Mr Drysdale is that his PTSD is attributable to one or more of three experiences he had whilst he was serving in Vietnam, namely:
(a) visiting injured soldiers at Vung Tau Hospital;
(b) hearing mortar fire during a concert at Phan Rang; and/or
(c) hearing machine gun fire close by when travelling in a convoy from Vung Tau to Baria.
15. Each of these events is discussed in further detail below in the context of step 3 of the Deledio test.
Is there an applicable SoP?
16. There is an SoP currently in force relating to PTSD, namely Instrument No 5 of 2008. That SoP relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
(e) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(f) experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(e) to 6(i) apply only to material contribution to, or aggravation of, posttraumatic stress disorder where the person’s posttraumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;”
17. Instrument No 54 of 1999 is also potentially relevant, given that Mr Drysdale’s claim was lodged before the current SoP came into force on 9 January 2008. However that SoP will only be relevant if Mr Drysdale is unsuccessful under the current SoP[2].
[2] Gorton v Repatriation Commission (2001) 65 ALD 609.
Does the hypothesis fit the SoP?
18. Having regard to the terms of the SoP, and the material before us, the answer to this question depends in turn upon whether the material points to the existence of “a category 1A stressor” or “a category 1B stressor” within the meaning of the SoP.
19. It is therefore appropriate that we consider in turn whether the material points to any of the three incidents outlined above being either a category 1A or category 1B stressor within the meaning of the SoP.
The visit to Vung Tau Hospital
20. Whilst this event could not constitute a category 1A stressor, it is capable of amounting to a category 1B stressor if it involves Mr Drysdale viewing “critically injured casualties” as an eye witness.
21. Mr Drysdale addressed this event in his written statement[3] and in his oral evidence. In both his statement and his oral evidence he said that he was very distressed by his visit to the hospital, and in particular by the condition of two young soldiers he met there. He said that one of these young men had had his leg amputated and the other had part of his arm missing. In relation to the soldier with part of his arm missing, in his oral evidence Mr Drysdale said that the end of the soldier’s arm was covered with a sheet and in relation to the soldier with his leg amputated, he said that the stump of the soldier’s leg was bandaged.
[3] Exhibit 2
22. Whilst Mr Drysdale’s distress at seeing these injured soldiers is very understandable, in assessing his claim the difficulty in relation to this event as we see it is that in order to potentially amount to a category 1B stressor, the soldiers Mr Drysdale saw would need to be considered to have been “critically injured”. However in our view, the phrase “critically injured casualties” in the context in which it appears in the SoP is intended to refer to casualties suffering life threatening injuries. Whilst Mr Drysdale describes seeing young soldiers who had experienced extremely distressing and debilitating injuries, we do not consider that those injuries could on any reasonable interpretation of the phrase be considered to have been “critical”. Rather, the material suggests that the soldiers were expected to recover from their injuries, albeit that they had been permanently maimed.
23. As we have noted above, seeing the soldiers in Vung Tau Hospital could not amount to a category 1A stressor and we have concluded that as the soldiers Mr Drysdale described seeing were not “critically injured” the material relating to this incident does not point to “a category 1B stressor” within the meaning of the SoP.
24. It accordingly follows that to the extent Mr Drysdale’s hypothesis relies upon this event, it fails at step 3 as the hypothesis does not satisfy the SoP and therefore cannot be considered to be “reasonable” pursuant to s 120A(3).
The mortar fire incident
25. In his statement, Mr Drysdale said in relation to this event:
“14.There was an occasion where the band travelled to Phan Rang to perform a concert for some Australian troops in the hall.
15. There was a mortar attack that occurred during the concert.
16. The mortar bombs were exploding around the surrounding area of the hall.
17. The explosions were very loud and I was fearful that my life was in danger.
18. The bombs sounded so close and I thought we may have been under attack.
19.The band stopped playing until the explosions ceased and then we recommenced the concert.
20.I remember someone in the audience trying to make light of the situation and said that the band should be playing the 1812 Overture.
21. I was intensely frightened.”[4]
[4] Exhibit 2, paras 14-21.
26. In his oral evidence, Mr Drysdale said that he thought the concert had been interrupted for one or two minutes while the mortar fire was going on and then continued.
27. There is also other material before us relating to this event, most of which is broadly consistent with Mr Drysdale’s account. Mr Ralph Daines was in the same band with Mr Drysdale and also travelled to Vietnam with him. He has provided a written statement[5] and also gave oral evidence. In his statement he said:
[5] Exhibit 3
“…
19.I recall that during the concert mortar explosions suddenly went off, they sounded very close and loud.
20.No sirens went off and I think because the audience were used to hearing such explosions, there was not a lot of shock and surprise within the audience but certainly to us within the band, this was not something we were used and found it very frightening and scary.
21.I recall that the conductor at that time made a flippant remark that we should have been playing the 1812 Overture with the explosions in the background.
22.Throughout the explosions, the band kept playing or because that is what we are taught to do, that is, to keep playing on through adversity.
23.I was certainly frightened by this attack particularly because it occurred during the evening and because the explosions were so close I was worried that we were in danger.
24.I estimate there were perhaps 2 to 3 explosions.
…”
28. A statement has also been supplied from Lieutenant Commander Farrell (R’td) the senior officer with the band at the time, who stated as follows:
“A concert was performed in the evening for personnel of RAAF No 2 Squadron and USAF personnel at Phan Rang, in the country’s north east. During the performance firing was heard and, following comments from the audience who called out ‘don’t worry – it’s only mortars’, the concert continued without disruption. This occurred over 30 years ago, but I am certain that except for interval, the band did not leave the stage, nor the audience their seats. In fact, I used the attack to our advantage by suggesting that we should perform the ‘1812 Overture accompanied by the Viet Cong gunners’.
I believe that if the senior officer present had thought there was a danger from the attack, defensive measures would have been put in place. I do not recall a siren or any attempt to clear the area. I saw the band members relaxing after the concert and there were no problems.”[6]
[6] T20/104
29. Having regard to the terms of the SoP, the question therefore arises of whether this material points to Mr Drysdale relevantly, “experiencing a life threatening event”.
30. In order to satisfy this test, it is not necessary that the material points to an event which was, objectively, life threatening. Rather the test contains objective and subjective elements. As the Full Court of the Federal Court observed in Woodward v Repatriation Commission (2003) 75 ALD 420, albeit in the context of a different SoP:
“… the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event is said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.”[7]
[7] At [139]
31. As we understand it therefore, the question for us is whether the material points to an event which “judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it” was capable of being life threatening, and was perceived by Mr Drysdale as a life threatening event.
32. We certainly accept that the material points to Mr Drysdale being frightened when he heard mortar fire during the concert and we also accept that the material points to the mortar fire being loud and sounding as if it was close by. It is also significant in our view that a more senior officer, Lieutenant Commander Farrell, apparently formed the belief that the base was under attack when he heard the mortar fire. Therefore it appears to us that the material also points to the existence of a reasonably held belief that the mortar fire indicated the base was under attack, i.e. that the mortar fire was incoming rather than outgoing. However that still leaves the question of whether the material points to an event which was capable of conveying and did convey to Mr Drysdale the threat of death.
33. Having carefully considered this question, we have concluded that whilst the material points to Mr Drysdale being frightened, it does not point to him being in immediate fear of losing his life. The material suggests that Mr Drysdale may have stopped playing his instrument and the concert may have stopped briefly when the mortar fire was first heard. However it does not point to Mr Drysdale taking any action consistent with him perceiving that his life was in imminent danger.
34. Furthermore even if the material did point to Mr Drysdale having the perception that his life was in danger, in our view the material does not point to a reasonable basis for that perception. All of the material before us is to the effect that the audience, consisting of personnel presently stationed at the base, remained seated and did not display any alarm. No sirens or alarms were sounded and no one present took any action in response to the mortar fire. In our view, a reasonable person in Mr Drysdale’s position would have taken into account the reaction of others present in judging whether they faced an imminent threat of death and would not have felt that their lives were in immediate danger.
35. Accordingly, we have concluded that the material relating to this event does not point to Mr Drysdale experiencing a “life-threatening event” within the meaning of the SoP and insofar as Mr Drysdale’s claim relies upon the mortar fire incident, it also fails at step 3 of the Deledio test.
The convoy event
36. The final event relied upon by Mr Drysdale occurred when he was travelling in an open truck through the jungle from Vung Tau to Baria. In his evidence he said that at the front and rear of the convoy were armoured jeeps with machine guns. He said that as the convoy rounded a bend, one of the jeeps opened fire into the jungle with a machine gun. Mr Drysdale said he thought the convoy was under attack and was “stressed out”. He also said he feared for his life. He said he immediately assumed that the convoy was being fired upon.
37. According to an earlier account recorded in a report of Dr Ewer dated 10 October 2008, Mr Drysdale told him that he had been “terrified” and “I got the scare of my life”. Dr Ewer also recorded that when Mr Drysdale heard the machine gun fire he threw himself on to the floor of the truck[8]. However when Mr Drysdale was asked during his oral evidence what he did in response to the machine gun fire, he referred to looking at his feet and at his instrument. He did not refer in his oral evidence to having left his seat in the truck.
[8] T19/93
38. Mr Daines also experienced this event. In his statement he said:
“10.As we were travelling along, all of a sudden a burst of machine gun fire came from the bushes on the side of the road.
11.We were accompanied by a few Australian soldiers who ducked at the time of the machine gun fire and looked really twitchy however the jeep convoy travelled on.
12.Once we got to Baria we were told that it was just American troops in the bush having a bit of fun and it was dismissed as being friendly fire.
13.As band members, we only had basic rifle training at best and we did not carry any weapons with us. We felt vulnerable.
14.When I heard the gun fire in the bushes, I thought that we were under attack and being fired at. I recall that some people onboard by [sic] truck thought that it was a helicopter because the noise was so loud and so close. We had no idea where the firing was coming from.
15.I remember that at the time of the machine gun fire, it surprised us all as it came out of the blue and a lot of expletives were used. It was frightening.”[9]
[9] Exhibit 3
39. Mr Daines confirmed in his oral evidence that when he heard the machine gun fire he thought the convoy was under attack. He said “I ducked down and stayed down”.
40. In his account, Lieutenant Commander Farrell said:
“… I do remember an Australian helicopter flying past the convoy, I believe on the return trip, firing its guns into the ground well away from the convoy. I recall the driver pointed out the helicopter and identified it as Australian, but that he was otherwise unconcerned. To the best of my knowledge, there was no acknowledgement or return fire from any soldier in the band’s convoy, nor were the vehicles in any danger. …”[10]
[10] T20/101
41. As to the presence of machine guns with the convoy, Lieutenant Commander Farrell also said “Transport to this venue was provided by the Australian Army and consisted of two large open-topped trucks escorted by a machine gun jeep, plus armed soldiers”[11]. Therefore his recollection is consistent with Mr Drysdale’s insofar as he also recalls the jeeps accompanying the trucks being equipped with machine guns.
[11] T20/101
42. However, as to the source of the fire, Lieutenant Commander Farrell’s account of the fire coming from an Australian helicopter is also consistent with another piece of evidence before us, being a statement obtained from Lieutenant J S Tracey (Ret’d) who served with 86 Transport Platoon, 5 Company RAASC in Vung Tau in 1970 and early 1971. He has stated that one of his regular duties was to command vehicle convoys travelling between Vung Tau and Baria and that he “would have travelled on the highway between Vung Tau and Baria over 400 times during the 12 months”. He has also said in his statement:
“I had no occasion to open fire to protect a convoy between Vung Tau and Nui Dat during my tour of duty, nor do I recall hearing of any instances where any gun jeep came under enemy fire or opened fire on enemy forces on this route. Not once did any person in my convoys open fire with a pistol, rifle or machine gun while travelling between Vung Tau and Baria.”[12]
[12] T20/106
43. Again, the question arises of whether this material, taken as a whole, points to Mr Drysdale experiencing an event reasonably capable of being perceived as life threatening and which he did in fact experience as life threatening.
44. In relation to that question, Mr Crowe, who appeared as advocate for the respondent, submitted that this was not a life threatening event in reality, and was not experienced as such by Mr Drysdale. He relied in particular on Mr Drysdale’s oral evidence as to his reaction to the machine gun fire, that he looked at his feet and looked at his instrument, but did not refer to leaving his seat. By way of contrast, Mr Crowe referred to Mr Daines’ reaction, which he said suggested that Mr Daines did feel he was in real danger.
45. We consider there to be some force in this submission, although the picture is further complicated by Mr Drysdale’s description to Dr Ewer of being “terrified” and throwing himself onto the floor of the truck. That account is more consistent with Mr Drysdale being in fear of his life, although if he did throw himself on the floor of the truck, it is difficult to understand why he did not refer to this in his statement or oral evidence.
46. However, we are mindful that at step 3 of the Deledio test, our task is to assess whether the evidence, taken as a whole, points to one or more of the factors in the SoP existing in Mr Drysdale’s case. As Sunberg J said in Howard v Repatriation Commission [1999] FCA 1030:
“Once a hypothesis has been identified, one asks whether that hypothesis, which consists of a number of elements, contains the elements which are prescribed by the SoP. If it does, then it is a reasonable hypothesis. If it does not, it is not a reasonable hypothesis.”
47. We must also consider whether the hypothesis is more than a possibility, consistent with known facts, or alternatively whether it is unreal, too tenuous, fanciful, too remote or impossible[13].
[13] East v Repatriation Commission (1987) 16 FCR 517
48. Having regard to the evidence of Mr Drysdale, Mr Daines and Lieutenant Commander Farrell and notwithstanding the statement of Lieutenant Tracey, we consider that the material points to some form of rapid fire taking place in the vicinity of the convoy. We also consider that the material points toward this being an unexpected event which both Mr Daines and Mr Drysdale found terrifying. Further, having regard to Mr Daines’ evidence that he “ducked down and stayed down” and Mr Drysdale’s evidence that he feared for his life and his statement to Dr Ewer that he “threw himself on the floor of the truck”, we also consider that the material points to this being an event capable of conveying to a reasonable person a threat of death. Although not all of the material is consistent, we also consider that the material taken as a whole points toward Mr Drysdale experiencing this event as a life threatening one.
49. It follows that we consider this event satisfies step 3 of the Deledio test.
Are we satisfied beyond reasonable doubt that Mr Drysdale’s PTSD is not war-caused?
50. That only leaves the question which arises at step 4 of the Deledio test, that being whether we are satisfied beyond reasonable doubt that Mr Drysdale’s PTSD is not war-caused.
51. As we have alluded to above, there are some inconsistencies between the accounts Mr Drysdale has given of the convoy event. He did not refer to this event at all in his statement. The first time he saw Dr Ewer he reported that “a machine gun on one of the jeeps opened fire into the jungle” and he was “terrified”[14]. As we have noted above, the second time Mr Drysdale saw Dr Ewer he referred to having been “terrified”, having “got the scare of my life” and throwing himself on the floor of the truck[15].
[14] T10/62
[15] T19/93
52. Having said that however, it is clear on the material before us that fire, probably machine gun fire, was heard from the convoy and it is significant in our view that Mr Daines also found this to be terrifying and felt sufficiently under threat to cause him to “duck and stay down”. We have taken into account the evidence of Lieutenant Tracey, which we accept, however the fact that he did not experience or hear of a convoy opening fire or coming under fire does not detract from our satisfaction that, on the occasion in question, fire which was probably machine gun fire was heard from the truck in which Mr Drysdale was travelling.
53. We are accordingly satisfied that an event occurred which was objectively capable of being experienced by a reasonable person as being life threatening. In effect, this is demonstrated by Mr Daines’ reaction as described in his evidence, which we accept.
54. We admit to having some doubts as to whether Mr Drysdale subjectively felt that his life was in danger when he heard the machine gun fire. Those doubts originate in part from the fact that, although he apparently told Dr Ewer that he threw himself on the floor of the truck, he did not refer to this in his statement or in his oral evidence, despite being questioned specifically as to what he did when he heard the machine gun fire. Notwithstanding our doubts as to this aspect of his evidence however, those doubts are not sufficient to cause us to be satisfied beyond reasonable doubt that Mr Drysdale’s PTSD was not war-caused, particularly given that the medical evidence before us is to the effect that Mr Drysdale’s PTSD is attributable in part to his experiences in Vietnam.
55. For completeness, we should also acknowledge that the material before us suggests that Mr Drysdale’s PTSD condition is attributable in part to him witnessing the tragedy of the collision between the HMAS Melbourne and the USS Frank E Evans, which occurred prior to his eligible service. In his report of 10 October 2008, Dr Ewer stated as follows:
“It is probable that a combination of the stressors in Vietnam and the collision substantially caused Mr Drysdale’s Post-Traumatic Stress Disorder.”[16]
[16] T19/96
56. Even if Mr Drysdale’s PTSD condition is not solely attributable to his Vietnam service however, we are satisfied that it is partly attributable to his Vietnam service, or was contributed to in a material degree or aggravated by his Vietnam service, within the meaning of s 9(1)(e) of the VE Act, and is accordingly war-caused.
57. As we are not satisfied beyond reasonable doubt that Mr Drysdale’s PTSD condition is not war-caused, we are required to conclude that the condition is war-caused within the meaning of the VE Act.
conclusion
58. We have concluded that the material before us points to Mr Drysdale having experienced a category 1A stressor before the clinical onset of PTSD within the meaning of the PTSD SoP, Instrument No 5 of 2008, and the hypothesis he has raised connecting his PTSD with his operational service is therefore reasonable. As we are not satisfied beyond reasonable doubt that his PTSD is not war-caused, it follows that the condition is war-caused within the meaning of the VE Act and Mr Drysdale is entitled to be paid a disability pension accordingly. We also consider that the date of effect in relation to this condition should be 21 June 2007, being three months before lodgement of the initial claim,[17] and we have decided to remit the question of the rate of pension payable to Mr Drysdale to the respondent for further consideration in light of our decision.
[17] Sub-s 20(1), VE Act.
decision
59. The Tribunal:
(a) sets aside the decisions under review and in substitution for those decisions decides that Mr Drysdale’s condition of PTSD is war-caused with a date of effect of 21 June 2007; and
(b) remits the matter to the respondent for determination of the rate of pension payable to Mr Drysdale as a result of this decision.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
and Lt Col R Ormston (Ret’d) (Member)Signed: ............J Coulthard....................................
AssociateDate of Hearing 1 September 2011
Date of Decision 31 October 2011
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
DVA
0
10
3