FRANK JOSEPH BROWN ApplicantAndREPATRIATION COMMISSION Respondent

[2006] AATA 445

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/85

VETERANS' APPEALS DIVISION		)
Re		FRANK JOSEPH BROWN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss Mary Imlach, Senior Member

Date22 May 2006

PlaceHobart

Decision The decision under review is set aside and a new decision substituted that  the disability of Post Traumatic Stress Disorder suffered by the applicant is war caused and the matter be remitted to Department of Veterans’ Affairs for assessment of disability pension at the Special Rate.

..............................................

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL   )
  )          No. T2005/85
VETERANS’ APPEALS  DIVISION  )

Re :     FRANK JOSEPH BROWN
Applicant

And:REPATRIATION COMMISSION

Respondent

CORRIGENDUM

Tribunal        :          Miss Mary Imlach (Senior Member)

Date               :          2 June 2006

Place             :          Hobart

Corrigendum :          In the decision in this application which was published on 22 May 2006, the final four words of the Senior Member’s decision “at the Special Rate” should be deleted.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

War caused injury - reasonableness of hypothesis - severe stressor

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

22 May 2006 Miss Mary Imlach, Senior Member          

1.      Mr Frank Joseph Brown lodged a claim on 5 December 2002 for medical treatment and pension for incapacity from post traumatic stress disorder on the ground that the condition was war caused.  On 1 December 2003 a delegate of the Repatriation Commission decided that the condition of post traumatic stress disorder was not related to service (“the decision”).   The basis of the decision was that the condition claimed by Mr Brown was not caused by an alleged incident of fire on HMAS Sydney on 14 or 15 February 1969.  Mr Brown requested a review of this decision by the Veterans’ Review Board on 9 March 2004.  The Board affirmed the decision on 5 April 2005.

Issue

2.      The issue is whether the condition of post traumatic stress disorder claimed by the applicant was caused by his service in the Royal Australian Navy during the following periods:

8 – 25 February 1969  8 – 30 May 1969  17 November – 5 December 1969  16 February – 5 March 1970

Background

3.        The applicant joined the Royal Australian Navy in January 1962 at the age of 17 years.  On completion of his initial training he was posted to a permanent billet in HMAS Cerberus and then in January 1964 to a permanent seagoing billet in HMAS Melbourne.  The applicant was on the Melbourne at the time of its collision with HMAS Voyager in 1964.  He was then posted to the Naval Air Station at Nowra in 1965.  He completed an advanced “Nuclear, Biological and Chemical Defence” course and was confirmed as a Petty Officer.  In 1969 he joined the Fast Troop Carrier HMAS Sydney and served in her for 18 months, completing a number of trips to Vietnam.  Whilst on HMAS Sydney carrying out his duties as the Senior Sailor in the Damage Control Centre (HQ1) the applicant experienced a fire which had been deliberately lit.  The fire was set on a number of decks further down in the ship but the arsonist had used a hatch outside HQ1 to get down further into the ship.  The applicant claimed that when the door into HQ1 was opened a “cloud of thick black smoke” burst into HQ1 covering the applicant and others in “fragments of burnt residue which had an oily touch to it”.  The applicant stated that the door was slammed shut and all in HQ1 were locked inside without personal safety clothing or apparatus with which to escape.  The applicant stated further that for the first time in his naval career he felt totally out of control of his circumstances and was convinced that he was going to be burned to death.  The applicant stated that from the time of the fire incident until he left the ship in July 1970 he was always in a state of heightened anxiety.  The applicant left the Navy in November 1981.  He has made a claim for medical treatment and pension for incapacity from post traumatic stress disorder on the basis that his incapacity was caused directly by the fire incident on HMAS Sydney during his operational service on that ship in February 1969.

Submissions of the Applicant

4.        The applicant who was represented by Mr Geoff Ralph argued that although he had not been able to specify the exact date the fire incident took place on HAMS Sydney he remembered the event and the circumstances of the event.  He had believed that just by telling the story to the respondent the event could be verified.  He said in evidence that it was not until he obtained a copy of the book “Vung Tau Ferry” by Rodney Nott and Noel Payne which specified the movements of HMAS Sydney that he was able to establish the date as 14, 15 or 16 February 1969 because he could now match the event with the date.

5.        Mr Brown’s evidence was corroborated by Mr Danny Terrence Todd who had served with the applicant first on HMAS Melbourne at the time of the Voyager disaster in 1964 and again on HMAS Sydney in 1969/70.  Mr Todd gave a written statement to the Tribunal dated 22 September 2005 and also gave evidence by telephone.  In his written statement Mr Todd stated that he recalled warning the applicant when he first came aboard HMAS Sydney that there was a firebug on the ship.  He considered this action normal in the circumstances because the applicant would be carrying out the same duties in HQ1 as himself both at sea and in harbour and there had been instances of set fires in the ship during 1968.  Mr Todd stated in his written evidence that he had a clear memory of the fire and that it had taken place when the ship was in or entering Vung Tau Harbour in February 1969.  He was now able to confirm the event occurred on 15 February 1969 from both the ships log and the book “Vung Tau Ferry”.  In cross-examination Mr Todd stated “that there was no fire in June 1969.  It was earlier in ’69.  It was my second trip on HMAS Sydney”.   It was for this reason he had a certain recollection the fire occurred in February 1969. 

6.        The applicant also relied on the written evidence of Commander C K Callins dated 7 October 2003 in which he stated that he clearly recalled the fire incident but that it occurred during his last four to five months in the ship which suggested the fire occurred between June to November 1969.

7.        The Tribunal also heard evidence by telephone from Mr Ronald Edward Ashmore a former commissioned officer in the Navy who had had experience during his service of writing and editing reports of proceedings of ships.  When asked whether he thought it unusual that the fire which the applicant referred to had not been confirmed in a report of proceedings for the month of February 1969 in HMAS Sydney he replied that it was possible that there was not even a record of it.  Mr Ashmore explained that each head of department wrote their own report of proceedings, which were then collated in the captain’s office.  The captain then decided what went into the final report.  It was a system where the captain determined what he wanted put into the actual report.  He made the comment that a captain may not want to put anything in the report which is adverse to his ship.  He added that it is entirely dependent upon the commanding officer what goes into a report.  Mr Ashmore did make the concession in response to a question by Mr Castle that if it were a really major fire he would expect it to be in a report.

Respondent’s Evidence and Submissions

8.        The respondent was represented by Mr Michael Castle who argued that a fire the magnitude of that described by the applicant would have been recorded either in the ship’s records of proceedings or the ship’s log.  Written reports commissioned by the respondent and obtained from Captain Joseph and Commodore Brecht were produced to the Tribunal, Captain Joseph gave verbal evidence by phone and Commodore Brecht gave evidence in person.  Mr Castle contended that given the ranks of both men, it was fair to assume that their knowledge of naval procedure was comprehensive.  The reports of searches carried out by both men for Write Way Research Service Pty Ltd reveal that the applicant undertook four logistic support visits to Vung Tau, South Vietnam in HMAS Sydney.  The recorded details of the visits were:  15 February 1969, 19 May 1969, 28 November 1969 and 27 February 1970 for which the applicant accrued periods of recognised operational service.

9.        Copies of Sydney’s Monthly Reports of Proceedings (ROP) covering each visit were attached to the reports and disclosed that all visits were uneventful and reported no hazardous or threatening incidents.

10.      Captain Joseph in his report stated that as the applicant was employed on training duties during February 1969 and did not take up his duties in the Captain’s Office until 1 April 1969 his contention could only have applied to the three later visits.

11.      Both Captain Joseph and Commodore Brecht stated in their reports that they examined all of Sydney’s ROP’s for 1969 and 1970 for mention of fire incidents on board.  No incidents were reported in 1969 but in the 1970 ROP’s there was mention in September 1970 of a fire on the night of 20/21 of three fires, two in garbage cans and one in the avionics workshop.  The paragraph in the ROP also made mention that a court martial in relation to the fires had been convened for Saturday 17 October 1970.

12.      The reports state that as the applicant had been posted ashore in Sydney on 20 July 1970 he could not have been on board Sydney when these reported incidents occurred.

13.      Captain Joseph also reported that he had consulted Captain R F J Brown RAN Rtd who had been Supply Officer in Sydney from January 1970 and Lieutenant Commander G C Cleverly RAN Rtd who was Deputy Supply Officer from April to October 1970 and both those men recalled the fire incidents in September/October 1970 and the subsequent court martial but were not aware of any previous similar incidents.

14.      The respondent contended therefore that the applicant was no longer serving in Sydney when the September/October 1970 fire incident took place and there was no documentary or anecdotal evidence found to indicate that there had been incidents of a previous nature during the period January 1960 to July 1970.

15.      Captain Joseph replied to a question put by Mr Castle whether he had searched any other material or other records of proceedings that he “had attempted to get copies of perhaps the damage control HQ1 records, but was advised they had not been kept for historical purposes, so they were not available”.

16.      In further examination by Mr Castle about what material was actually put into records of proceedings, Captain Joseph observed that “it would be a judgement call as to whether an event was of sufficient significance to be included in the report of proceedings and one would not expect every trivial event taking place to have been recorded”.

17.      In cross-examination Captain Joseph admitted that he had not sought information from anyone who served on HMAS Sydney during February 1969.

Consideration of Law and Findings

18. The relevant legislation is contained in s120 of Veterans’ Entitlements Act 1986 (the Act):

“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.

(2)       …

(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.

(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”.

19.      The Tribunal is satisfied on the basis of the medical reports dated 10 December 2002 of Dr James Fellows-Smith and Dr Joseph Sheehan dated 11 October 2004 that the applicant is suffering from post traumatic stress disorder.

20.      The issue to be determined by this Tribunal is whether the incapacity of post traumatic stress disorder (PTSD) claimed by the applicant is caused by his war service.  His relevant service is operational service in the Royal Australian Navy from:

8 February 1969 -25 February 1969 (Vietnam)  8 May 1969 – 30 May 1969 (Vietnam)  17 November 1969 – 5 December 1969 (Vietnam)  16 February 1970 – 5 March 1970 (Vietnam)

21.      The Repatriation Commission refused the applicant’s claim in a decision dated 1 December 2003.  The Veterans’ Review Board affirmed that decision on 5 April 2005.

22.      The standard of proof which the Tribunal must apply is that set out in the Act that if there is a reasonable hypothesis connecting the claimed disability or incapacity with a period of operational service the Commission must accept the claim unless the Tribunal is satisfied beyond reasonable doubt that the disability is not related to that service.

23.      The Repatriation Medical Authority issues Statements of Principles (SOP’s) for particular conditions stating which factors must exist for a hypothesis to be considered reasonable.  The SOP relevant to the material before the Tribunal is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 concerning post traumatic stress disorder:

“Experiencing a severe stressor prior to the clinical onset of post traumatic disorder.

Experiencing a severe stressor is defined by the SOP to mean:

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’ Entitlements Act applies, events that qualify as severe 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”

The hypothesis identified as connecting the condition and the veteran’s service will be reasonable only if it is consistent with at least one factor in the SOP.

24.      In considering the whole of the material before it the Tribunal must determine whether the material points to some fact or facts which support the hypothesis.  It is not necessary that there be evidence to support the hypothesis at every point but inferences or assumptions may be drawn from the material.  Contradictory facts tending to disprove the hypothesis cannot be reasonable if it is obviously fanciful, impossible, incredible or not tenuous or a mere possibility;  it must point to some fact or facts supporting the hypothesis.

25.      The claimant has advanced the hypothesis that he is suffering from PTSD as a consequence of his exposure to a fire on board HMAS Sydney during a period of operational service.

26.      The Tribunal is satisfied that there is material evidence before it pointing to the veteran’s exposure to a severe stressor whilst rendering service on board HMAS Sydney on 15 February 1969.

27.      In evidence the applicant stated that he could recall the incident of the fire and the circumstances surrounding it but he did not know the date on which it had occurred.  He stated that he had always known that the incident had occurred whilst HMAS Sydney was entering Vung Tau Harbour but on obtaining a copy of the book “The Vung Tau Ferry” written by Rodney Nott and Noel Payne he was able to establish the date of the incident as 15 February 1969.  The book “The Vung Tau Ferry” was produced as an exhibit to the Tribunal.

28.      The applicant ’s evidence that the fire incident took place on 15 February 1969 was corroborated by Mr Todd who stated emphatically in response to a question put to him by Mr Castle that the fire took place between June – November 1969, “ …that there was no fire in June 1969.  It was earlier in ’69.  It was my second trip on HMAS Sydney”.

29.      The written evidence of Commander Callins relating to the date of the fire cannot be considered because it is contradictory to that put forward by the applicant but his evidence can be used to support the applicant’s case that there was a fire on board HMAS Sydney whilst the applicant was serving on her.

30.      The Tribunal is satisfied that there is now evidence before the Tribunal pointing to the fire occurring during the applicant’s operational service and therefore material going to that part of the hypothesis of a connection between war service and the applicant’s incapacity of PTSD.

31.      The main thrust of the respondent’s contention was that there was no material evidence of the fire incident taking place because there was no mention of the fire in the ships log of ROP’s on HMAS Sydney for the relevant dates in February 1969.  The evidence of Mr Ashmore showed that it is very much dependent on what the captain of the ship decides to accept which is put in the report of proceedings.  The respondent did not bring any other evidence and advised that the damage control HQ1 records of the ship had not been kept for historical purposes.  The respondent had not attempted to obtain any evidence from any other persons who had served on HMAS Sydney in February 1969.

32.      For these reasons, the Tribunal is of the opinion that the material does raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act.  It follows that the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(3) of the Act that there is sufficient ground for determining that the applicant’s PTSD is war caused.  The decision under review is set aside and substitutes a new decision that the disability of Post Traumatic Stress Disorder suffered by the applicant is war caused and the matter be remitted to DVA for assessment of disability pension at the Special Rate.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach, Senior Member

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  3 and 20 March 2006
Date of Decision  22 May 2006
Counsel for the Applicant         Mr G Ralph
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs