Furletti and Repatriation Commission
[2005] AATA 728
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 728
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/0152
VETERANS' APPEALS DIVISION
Re: DAVID JAMES FURLETTI
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 29 July 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS' AFFAIRS – operational service – diagnosis ‑ post traumatic stress disorder – generalised anxiety disorder – whether experienced a severe stressor – whether experienced a severe psychosocial stressor – whether reasonable hypothesis – whether condition war‑caused
Veterans' Entitlements Act 1986
Statement of Principles Instrument N° 3 of 1999 as amended by Instrument N° 54 of 1999
Statement of Principles Instrument N° 1 of 2000
Repatriation Commission v Deledio (1998) 83 FCR 82
Mines v Repatriation Commission [2004] FCA 1331
REASONS FOR DECISION
Mr E. Fice, Member
1. On 13 September 2000 the Repatriation Commission (“the Commission”) accepted a disability claim lodged by Mr D. W. Furletti for bilateral sensorineural hearing loss and bilateral tinnitus but refused his claims for a sprain or sprains of the left shoulder and upper arm, depressive disorder and localised osteoarthrosis of the right knee. On 27 November 2002, the Veterans' Review Board (“VRB”) affirmed the decision of the Commission. Mr Furletti seeks a review of the decision of the Commission in respect of his rejected claims for depressive disorder and localised osteoarthrosis of the right knee.
2. This matter was heard over three days, commencing on 30 July 2004, with a further day on 9 November 2004 and concluding on 9 May 2005. Ms I. Black, clerk, and subsequently, Mr D. De Marchi, solicitor, of De Marchi and Associates appeared on behalf of Mr Furletti. Mr R. Ferguson and Ms J. McCulloch, advocates with the Department of Veterans’ Affairs, appeared for the Commission. The Tribunal received into evidence documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the Act”) together with Exhibits R1 to R8 tendered on behalf of the respondent.
BACKGROUND
3. Mr Furletti was a National Serviceman who was conscripted into the Australian Army ("the Army") on 29 January 1969. After completing basic recruit training, he was transferred to the Royal Australian Electrical and Mechanical Engineers (“RAEME”) Training Centre. He completed a Storeman Technical course and worked in that trade during his time in the Army. He was posted to Vietnam, arriving on 24 September 1969; and he remained there until 17 September 1970. His unit in Vietnam was 102 Field Workshop, stationed at Vung Tau. According to Mr Furletti, on one occasion, he was attached to 106 Field Workshop at Nui Dat for approximately 6 weeks. There he assisted in attaching additional belly armour to armoured personnel carriers (“APC”).
4. During the time he spent at Vung Tau Mr Furletti claims he experienced a number of stressful events which resulted in him now suffering from post traumatic stress disorder (“PTSD”).
5. Mr Furletti was discharged from the Army on 28 January 1971, having completed his National Service. He claims that he was an alcoholic at that time. He resumed his career with the Commonwealth Bank of Australia, although he continued to drink heavily.
6. Late in the 1990s, a number of Kosovo and East Timor refugees were housed at Puckapunyal where Mr Furletti was then working. Mr Furletti said that seeing those refugees triggered an emotional reaction in him and it caused him to seek counselling, for the first time, from the Vietnam Veterans’ Counselling Service. He said a psychologist, Glenda Jones from Shepparton, initially diagnosed him as suffering from PTSD.
PARTIES' CONTENTIONS
7. On the first day of the hearing, Ms Black informed me that Mr Furletti’s claim regarding osteoarthrosis of the right knee had been resolved and that the only outstanding matter was Mr Furletti’s claim relating to PTSD.
8. As I understand Mr Furletti’s claim, he contends that he suffers from PTSD as a consequence of a number of severe stressors which he says he suffered during operational service in Vietnam. They include:
(a)being fired upon (“the shooting incident”);
(b)witnessing the death of a person shot by a South Vietnamese civilian policeman (“the white mice incident”);
(c)experiencing a rocket attack on the base at Vung Tau;
(d)seeing mutilated children at an orphanage; and
(e)coming across part of a finger in an APC which was severely damaged by an anti‑tank mine.
9. The Commission contends that only events (a) and (b) above can be categorized as severe stressors within the meaning of the relevant statement of principles (“SoP”). It contends that events (c), (d) and (e) are insufficient to found a claim for PTSD as the described reaction to those events was not “intense fear, helplessness or horror” as is required under the SoP.
10. Furthermore, although the Commission relies upon a report prepared by Dr N. Strauss dated 24 June 2003, and Dr Strauss diagnosed Mr Furletti as affected by mild PTSD, it contends that this must necessarily be based on Dr Strauss’ assumption that events (a) and (b) above in fact occurred. The Commission contends that those events did not occur and, as there are no other relevant stressors identified by Mr Furletti, he does not suffer from PTSD. However, following discussions with Dr Strauss, the Commission was prepared to accept that Mr Furletti may suffer from a generalized anxiety disorder in remission for a number of years, which was rekindled in the 1990s.
CONSIDERATIONS
11. Section 9(1)(a) of the Veterans’ Entitlements 1986 Act (“the Act”) provides that an injury or disease suffered by a veteran is taken to be a war‑caused injury or disease if “the injury suffered or the disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service”. There is no dispute in this case that Mr Furletti rendered operational service between 24 September 1969 and 17 September 1970.
12. Section 13 of the Act provides that:
13(1). Where:
…
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease,
the Commonwealth is, subject to the Act, liable to pay:
…
(d)in the case of incapacity of the veteran ‑ a pension by way of compensation to the veteran…
13. The standard of proof which must be met is set out under section 120 of the Act which, insofar as it is relevant, provides:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or 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 the 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 or 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.
…
14. Mr Furletti’s claim was made on or after 1 June 1994. Therefore, section 120A of the Act applies. In particular, if the Repatriation Medical Authority ("the RMA") has determined a SoP under sub-section 196B(2) of the Act, then, for the purposes of section 120(3), a hypothesis connecting the disease contracted by a person shall only be reasonable if there is in force a SoP determined under section 196B(2) or 196B(11) which upholds the hypothesis. The RMA has determined a SoP regarding PTSD (Instrument N° 3 of 1999 as amended by Instrument N° 54 of 1999). The RMA has also determined a SoP regarding generalized anxiety disorder being Instrument N° 1 of 2000. The steps required to be taken by a decision‑maker pursuant to sections 120 and 120A of the Act are set out in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97‑98, where the Court said:
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.
15. The four step process outlined in Deledio assumes that there has been a finding that the claimed disease exists and that the veteran has rendered operational service. Although it is not disputed that Mr Furletti rendered operational service, the Commission disputes that the two events, which it claims are capable of constituting a severe stressor as defined under the relevant SoP, in fact occurred. As Gray J. said in Mines v Repatriation Commission [2004] FCA 1331 at para 37:
…
At the outset, one point needs to be understood. The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.
16. Problems may arise where the question whether the veteran suffers from a particular disease, such as PTSD, depends upon a finding that the veteran suffered a severe stressor in the course of operational service. As Gray J pointed out in Mines at paragraph 39:
…There may be cases in which the very question whether an injury or disease has been suffered is itself bound up with the question of connection with war service. PTSD provides an example. It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred. Of course, there might be more than one possible traumatic event, and there might be a question as to which of such events is responsible for the condition. If one or more of the possible traumatic events is not associated with war service, the decision-maker will have to resolve the question whether the symptoms result from the event or events associated with war service or the other event or events…
17. His Honour explained that two processes of reasoning were possible in such cases. At paras 40 and 41, he said:
More than one process of reasoning is possible. The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio would be satisfied without difficulty. On the other hand, if the decision-maker were not satisfied on the balance of probabilities that a traumatic event occurred during war service, resulting in PTSD, then the case would never reach the stage of the application of the steps in Deledio, because no question of a connection between PTSD and operational service could arise. There would be no finding of PTSD.
The other possible process of reasoning is to say that all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered, are to be determined on the reasonable hypothesis basis, required by s 120(1). On this basis, the decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with a finding of PTSD. The question whether there was PTSD would be determined on the ‘reasonable hypothesis’ basis, using the four steps referred to in Deledio. Thus, the first step would be to ask whether the symptoms suffered by the veteran, in conjunction with the other material, raised a reasonable hypothesis of a connection between those symptoms and a postulated traumatic event, and therefore a reasonable hypothesis that the veteran suffered PTSD. On this basis, the question of a connection, and the question whether the relevant traumatic event occurred at all, would be dealt with only once in the process of reasoning, and a finding favourable to the veteran would be required unless the material demonstrated beyond reasonable doubt that the connection did not exist or that the traumatic event did not occur.
18. After examining the many cases dealing with the process of reasoning where the diagnosis is dependent upon a traumatic event occurring, his Honour concluded at paragraph 48:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.
19. However, as his Honour Mr Justice Gray explained further (at paragraph 50), the decision‑maker’s task may not end even if the decision-maker is satisfied on the balance of probabilities that the veteran does not suffer from PTSD. The disease from which the veteran suffers might be differently characterized. In those circumstances, where a decision-maker is reasonably satisfied that the veteran has a condition, depending on whether it resulted from a traumatic event, that condition might itself amount to a disease for the purpose of the application of the Deledio steps.
20. Given that the Commission contends that events (a) and (b) referred to above are capable of meeting the definition of a severe stressor under the SoP, and that events (c), (d) and (e) are of a different category and do not satisfy the relevant SoP, it is appropriate that my examination be conducted in two stages: the first dealing with events (a) and (b), and the second dealing with events (c), (d) and (e).
21. Assuming for the moment that Mr Furletti displays symptoms of PTSD, in order to determine whether Mr Furletti is suffering from PTSD as a consequence of the incidents described in paragraph 8 (a) and (b) above, the Tribunal must first be reasonably satisfied that the traumatic incidents did occur.
SHOOTING INCIDENT
22. Mr Furletti claims that the first incident, which is described as “the shooting incident”, took place in an area known as the Long Hai Hills, some distance from Vung Tau. According to Mr Furletti, he and two other soldiers had taken a Land Rover from the base at Vung Tau and had driven north along Highway 15 to the town of Ba Ria. Then they turned right, heading south on Highways 23 and 44 towards Bai Bin Long-Hai, where there was an American military training base. The purpose of the trip was to collect a refrigerator which was exchanged for “a couple of slabs of beer”. Mr Furletti said that they did not have official permission to use the Land Rover, but he suggested that they had “unofficial permission”. He said the Land Rover was not signed out in the unit book. Mr Furletti said his immediate supervisor knew about the trip. That person was not named, nor was he called to give evidence. Mr Furletti said that the first checkpoint they encountered was the front gate of the 1 Australian Logistics Support Group ("ALSG") Base at Vung Tau. He suggested that rather than being checked out at that gate, the soldiers were only required to show their identification cards and were let through. He did not recall whether he had to state where they were going.
23. Mr Furletti said the drive to Long‑Hai was uneventful. After they had loaded the refrigerator onto the back of the Land Rover, he and another soldier sat in the back supporting the refrigerator while returning to Vung Tau. However, in the evidence he gave to the VRB, he had said he was driving the vehicle. When asked whether he told the VRB that he was driving he said “No, not that I can remember”. When asked if he was sure of that, he said no, he was not, and that he did not know whether he was driving. He said he may have driven the vehicle but he could not be absolutely sure. In any event, not long after the Land Rover had proceeded from the American military base at Bai Bin Long‑Hai northwards towards Ba Ria, three shots rang out from steep hills on the right hand side of the road. One of the persons in the Land Rover returned fire and expended a magazine from an F1 submachine gun, shooting in the general direction of the sound of the shots. Mr Furletti confirmed there were three shots which he described as “three bangs”. The party continued to drive up the road and, although the Land Rover passed a number of military check points, one which was only approximately one kilometre north of where the shots were said to have been fired, and one a little further north towards Ba Ria, Mr Furletti said that the incident was not reported to anybody. He thought at the time that it was not necessary to do so. His explanation for not informing the soldiers at the military check points about the shooting was that they were Vietnamese and they hardly understood English. Mr Furletti now considers that his failure to obtain official sanction for the trip and his failure to report the shooting incident was irresponsible. Upon returning to Vung Tau, Mr Furletti said that he did not make any formal report of the shooting incident and the only persons he told were “the boys in the boozer”.
24. Mr J.M. Church, a retired colonel with the Australian Regular Army who now conducts historical research specializing in military records, said he would be surprised if the shooting incident did occur as stated by Mr Furletti. He noted that it wasn’t heard by other people, and that no report was made of it. He said that from his experience, it was impressed upon every soldier that any incident such as the shooting incident should be reported. Even though he accepted that Mr Furletti might have been disinclined to report the incident given that he was on a trip which had not been officially sanctioned, Mr Church thought Mr Furletti would have been “clapped on the back” had he reported it.
25. Mr Church conducted a review of vehicle ambushes and road convoy incidents in South Vietnam between 23 September 1969 and 17 September 1970. According to his research, on 28 February 1970, an Australian International five ton dump truck struck an enemy land mine on Route 44, in approximately the same area that Mr Furletti claims there were shots fired at him. There are no records of other incidents of any kind reported along Route 44 during the relevant period of time and, particularly, no report of any shootings. When asked if there may have been any shooting incidents which were not confirmed as enemy action, and therefore not reported, Mr Church said that such incidents would in any event have been reported.
26. Mr F. Tonkin, a retired Army officer, served in South Vietnam from 17 February 1969 to 14 January 1970. He was, for a period of time, the Officer Commanding 102 Field Workshop. Mr Tonkin confirmed that there were unofficial detachments between 102 Field Workshop at Vung Tau and 106 Field Workshop at Nui Dat. He also recalled that there was a refrigerator obtained for holding cold drinks on one of the Workshop floors at one stage. However, Mr Furletti’s evidence was that the refrigerator was obtained from the Americans in about May or June of 1970. That is after Mr Tonkin had left South Vietnam. Although Mr Tonkin suggested that the refrigerator could have been the one referred to by Mr Furletti, that could not possibly be so given that the refrigerator was already at 102 Field Workshop prior to the incident described by Mr Furletti.
27. Mr Tonkin was told about the shooting incident. He said that Australian soldiers would have been expected to report such an incident; and it would have been “a very significant happening”. He also said that if the event had been reported, it would have “gone a lot further” than the Commanding Officer of the unit.
28. Although I would not expect Mr Furletti’s recall to be very accurate after approximately 35 years, there is much that he has said about this incident which makes it highly unlikely that it occurred at all. The first problem that I have with Mr Furletti’s account is the fact that he was able to simply drive out of the front gate of the Army base at Vung Tau by merely showing an identification card; without any explanation as to where the vehicle was going or what the purpose of the trip was; without a radio to remain in contact with base; and without any intelligence or regard as to the state of the roads in the area at the time. Upon my request, Ms McCulloch obtained from Mr Church the Standing Orders for transport movement outside 1 ALSG base at Vung Tau. The Administrative Instruction dealing with road movement which was put into evidence, although dated 1971, is probably reasonably accurate as to the requirements for movement outside the Vung Tau base area during the relevant period. The Administrative Instruction states that the movement of all transport outside Vung Tau Special Zone was to be controlled by HQ ALSG, by:
a. restricting all movement between 1830 hours and 0730 hours daily;
b. grouping vehicles in convoy; or
c. approving single free runner vehicles.
29. The Administrative Instruction also provides that no vehicle was to leave the Vung Tau Special Zone unless it was placed under command for movement of 5 Company RAASC by Logistical Operations Branch, or issued with an approved free runner pass. An application for a “green route” free runner pass, a copy of which was in evidence, states that approval is requested to “free run” a unit vehicle for an urgent operational task before the next routine convoy. I assume from that statement that only in operational circumstances would a single vehicle be granted a pass for a route which was designated green. In addition, the instructions to the driver provide as follows:
Single vehicles must comply with the following provisions of 1 ALSG Standing Orders, Part 2, Section 4:
1.Minimum of 2 persons in the vehicle.
2.Minimum of 2 long barrel weapons.
3.No canopy or doors if 1/4 or 3/4 ton vehicles.
4.Driver must advise 1 ALSG on arrival at destination.
5.Driver must check in with 1 ALSG prior to their return and nominate their ETA at Vung Tau.
6.Driver must check in with 1 ALSG on return to Vung Tau.
7.All vehicles must be south of the Cau My Bridge by 1800 hours.
8.Unauthorised halts are not to be made between 1 ALSG and 1 ATF.
9.No additional passengers may be taken without approval of HQ 1ALSG.
30. Also in evidence was a vehicle personnel log dated 28 December 1971. It is illustrative of the fact that vehicle numbers, units, passengers, destinations and the time of departure were recorded by persons on duty at the gate of a base. This evidence suggests that it is unlikely that Mr Furletti’s Land Rover would have been permitted outside the gate without producing a "green route" single vehicle pass. Mr I. Laurie, a former Military Policeman who saw service in South Vietnam at the same time as Mr Furletti, confirmed that the bulk of 1 ALSG Operations Section 4 (road movement) also applied to members and vehicles of the Provost Unit, except that free running passes were not required for Provost vehicles within the Vung Tau special zone. Otherwise, Provost vehicles were also required to obtain a single vehicle running pass. Mr Laurie said it was either the last task of the night shift or the first task of the day shift to drive along route 15 from Vung Tau to Ba Ria, as close as possible to 0600 hours, to the US Military check point at the Cau Mai Bridge. There the patrol was met by a patrol from the Nui Dat Military Police detachment and a radio call would be made to 1 ALSG, via HQ AFVPRO, that the entire route was clear. When the route was declared clear, it remained “green”. Mr Church, who had investigated troop transport movement outside 1 ALSG base in Vung Tau said that the road from Ba Ria south, and on the western side of the Long Hai hills, would not have been classified as a “green route”.
31. Mr Furletti’s account of the shooting itself was also not convincing. When first asked whether he was driving the vehicle he said he was not. He was adamant about that and said he was in the back holding the refrigerator. However, after it was pointed out to him that he told the VRB that he was driving the vehicle, he changed his mind and said that he may have been driving the vehicle but he couldn’t recall. He then changed his mind again and said he did not think he was driving but that it was such a long time ago he could not recall accurately. Viewed objectively, an incident such as being fired upon while driving in a war zone in South Vietnam would, in my opinion, in the absence of any mental impairment, remain very clear even after some 35 years. Also, the incident was never reported despite the fact that there were at least two military posts along Route 44 between the Long Hai hills and Ba Ria, and two further military posts between Ba Ria and Vung Tau. Mr Furletti suggested that he did not report it because the South Vietnamese spoke little English. That explanation seems highly improbable in the circumstances, given there was a military post probably within about 1 kilometre of where Mr Furletti said the shots were fired. Had the shooting occurred, I have no doubt that the persons fired upon would have immediately explained the situation to the nearest military post as such activity would obviously pose a danger to any other persons passing along the road. I cannot accept that language problems would pose any difficulty in explaining such an event. To simply continue all the way to Vung Tau without advising anybody of such an incident is, in my opinion, highly unlikely. Therefore, not only am I satisfied on the balance of probability that the event did not occur; I am satisfied beyond reasonable doubt that this incident did not occur.
32. I invited submissions from both parties on the question of whether Mr Furletti’s conduct in travelling outside 1 ALSG base without a pass on an unauthorized trip might constitute a serious breach of discipline. However, as I am satisfied that this event did not occur, there is no purpose in addressing those submissions.
THE WHITE MICE INCIDENT
33. Mr Furletti said that once when he was in the centre of Vung Tau, although he could not remember exactly when, while walking with two other soldiers, a man ran past the group and they heard someone yell out “stop” in Vietnamese. Mr Furletti said he and his friends stopped immediately because they understood the Vietnamese phrase for stop and had been previously told to stop immediately if they heard those words. He said that at the time, he and his friends were walking towards a street which is known as “the street of bars”. He said that he then heard a "bang" which came from behind the group, some 10 or 15 feet away, and a Vietnamese man fell to the ground immediately ahead of them. The person who did the shooting, according to Mr Furletti, was a military policeman. However, it was later established that as he was dressed in white, he was more likely a civilian policeman. Military policemen, according to Mr Laurie, were dressed in greens and wore an American helmet, which was black with a large white “QC” stencilled on the front. They also wore a black armband, with a white “QC” stencilled on it. Mr Laurie confirmed that the civilian police, who were known as “white mice”, were armed; and if they carried handguns, it was almost invariably an American issue Colt 45 calibre service pistol.
34. In his evidence to the VRB regarding this incident Mr Furletti said that two shots were fired, not just one. Dr Strauss, psychiatrist, who interviewed Mr Furletti on 24 June 2003, also stated that Mr Furletti told him that “some shots were fired and the man who had run past them fell to the ground.” In his account to Dr Strauss Mr Furletti said he was about 25 metres away from the corpse. In his evidence to the Tribunal, he said that the shot came from 10 to 15 feet behind him and the person who was shot was “just up from us”. He said that the Vietnamese policeman then walked up to the person whom he had shot and turned him over with his foot. He said that he and his two friends did not want to get involved, so they headed for the closest bar. In recounting the incident to Dr N. Rose, who examined Mr Furletti on 4 August 2000, he said that the Vietnamese policeman shot the man in the head, killing him. Under cross‑examination, when asked where the bullet entered the victim’s body, Mr Furletti said he had no idea and that “we didn’t hang around”. However, when it was put to him that he had previously said that the victim was shot in the head, Mr Furletti said it may have been in the head but he could not recall. Mr Laurie, who served as a military policeman in Vietnam between 30 September 1969 and 1 October 1970, the period during which this particular incident was said to have occurred, said he had no knowledge whatsoever of such an incident.
35. Mr Laurie said that for the first few months of his tour he was in Vung Tau and then he spent a few months in Saigon. After that, he went to Nui Dat for about one month and returned to Vung Tau for the balance of his tour. He said he was probably in Vung Tau between May or June 1970 and the end of his tour. His opinion was that if the incident occurred, it was “very very unlikely” that it would have gone unreported. He said that such an incident would have instantly drawn a crowd in that area, particularly as it was about 6 o’clock at night when the bars were starting to fill. It would not only have drawn a lot of attention from passers‑by, but also from the police station which was about 150 metres from where the incident was said to have taken place.
36. It was put to Mr Laurie that there were stories of civil policemen being a law unto themselves, prepared to shoot “at the drop of a hat”. He was asked if this had ever happened in Vung Tau to his knowledge. Mr Laurie said that in his experience it had never happened and he had never heard of such a shooting in Vung Tau. He said that if such an incident did occur, he would have heard about it because the military police were in daily contact with headquarters and Nui Dat by telephone. Mr Laurie said that soldiers were good gossips and that any incident such as a shooting, whether it occurred at Nui Dat, Saigon or Vung Tau, would be common knowledge. He also made the point that it was strictly his business, as a military policeman, to know what was going on around the town.
37. Mr Laurie described Vung Tau as a “very comfortable” posting for Australian soldiers. He described the posting for civilian Vietnamese policemen as probably the best and the safest. Mr Laurie said that there was plenty of opportunity for graft, they were out of the “shooting zone” and there was no need for them to do anything to “rock the boat”. Mr Laurie also said it was extremely difficult to hit a small target over the distance of 20 to 25 metres with a pistol. He explained that because Vietnamese generally have very small hands, they would have some difficulty in firing a weapon such as the Colt 45 semi‑automatic pistol accurately. They would need to use two hands.
38. The various accounts given by Mr Furletti of this incident are wholly unconvincing. He has variously described the incident as comprising of a number of shots ringing out from behind him and as consisting of a single shot. He has said the victim was shot in the head. He has also said he could not recall where the victim had been hit; although, as it was suggested to him in cross‑examination, had the victim been shot in the head, it would have been rather obvious to him. Added to these discrepancies is the fact that Mr Laurie, who was an Australian military policeman serving in the Vung Tau area at the time when this incident is said to have taken place, had no recollection of such an incident, nor does he believe that such an incident took place. In my opinion, all of this points strongly to the fact that this incident did not take place. I am satisfied beyond reasonable doubt that this is the case.
39. I am not satisfied that the shooting incident or the white mice incident occurred. Therefore, Mr Furletti’s claims based on these incidents do not reach the stage where I should apply the steps in Deledio, because no question of a connection between PTSD and the operational service arises. However, that is not the end of the matter. Mr Furletti also relies on three other incidents to ground his PTSD claim. It is convenient to deal with those incidents, which I will refer to as the remaining stressors, under the one heading.
REMAINING STRESSORS
40. Mr Furletti said that shortly after he arrived at Vung Tau, there was a mortar or rocket attack directed at the 1 ALSG Base. He said that the rockets landed on the American Base which was about one kilometre away from where the Australian Base was situated. According to Mr Furletti’s recollection, the attack occurred on the military side of Vung Tau airfield. When asked what he was doing at the time, he said that he was sitting in the bar, drinking. He was asked whether he left the bar to go into sheltered trenches. He said that there were no trenches, but that the barracks were basically a tin hut surrounded by sand bags up to about shoulder height. Mr Furletti said that he didn’t run to the huts because the bar also had sandbags around it so that he was just as safe there. He said that he didn’t huddle down or anything like that because when sitting down, he was at the height of the sandbags. He said that he simply continued drinking. He also said he was frightened by the incident.
41. Mr Church’s research discloses that a rocket attack occurred on 29 October 1969, when 8 enemy 122 millimetre rockets were launched at Vung Tau from Long Son Island. Two rockets landed on the airfield, two in the bay near De Long Pier, while four rockets landed in the dockside area.
42. I accept that Mr Furletti was at Vung Tau at the time of this attack and I am satisfied, on the balance of probabilities, that the event occurred as described by Mr Furletti.
43. The second event Mr Furletti referred to was seeing severely maimed children at an orphanage in Vung Tau. He said that he felt pity and, perhaps, horror at seeing some of the disabled children. According to Dr Strauss, Mr Furletti told him while he was in Vietnam he would deliver and pick up laundry at an orphanage and he became friendly with some of the children, many of whom had mutilated bodies or had lost limbs. According to Dr Strauss, Mr Furletti said that at the time it did not worry him, but he has never forgotten the sight of those bodies.
44. After reading the report prepared by Mr Church, Mr Furletti agreed that the orphanage was not where he thought it was when he gave his evidence in chief. He also agreed that although he had previously said that the laundry was at the orphanage, he was wrong. He nevertheless insisted that it was his responsibility, as a storeman technical, to take washing to the laundry at least once a week. After locating the position of the orphanage on a map of the area, he agreed that the laundry was situated about one kilometre from the orphanage. Mr Furletti then conceded that he only went to the orphanage to visit and on some occasions he took clothes for the children which his mother sent from Australia. He agreed that he did not pick up laundry at the orphanage as he had told Dr Strauss. He also said that he was mistaken in believing that a laundry was conducted at the orphanage. Mr Furletti said that he felt compassion for the children but that he was not distressed. He felt pity and he was sorry for them.
45. Mr Tonkin stated that the unit laundry was done in Vung Tau. He said that unit vehicles would deliver and collect laundry at least twice a week and that it would have been one of Mr Furletti’s responsibilities, as a storeman technical, to transport the laundry. Therefore, despite some discrepancies in Mr Furletti’s evidence, given the lengthy passage of time since this event occurred, I am prepared to accept, on the balance of probabilities, that Mr Furletti did transport the unit laundry to Vung Tau and in the process, did visit the children in the orphanage, for whom he felt pity.
46. The final stressor described by Mr Furletti occurred when he examined an APC which had been severely damaged by a landmine. He said that on that occasion he came across at least one body part, being part of a finger, in one of those severely damaged vehicles. According to Dr Rose, Mr Furletti told him that at one time he had to pick up body parts from an APC, for example a piece of finger or foot, that had not been cleaned out before the vehicle was brought in for repairs.
47. Mr Furletti told the Tribunal that in February 1970 he inspected an APC which had been severely damaged by a landmine. It had the rear tailgate blown off, the driver’s hatch was lifted and it was opened up under the belly. Although he had nothing to do with working on the vehicle, he examined it out of curiosity. Mr Furletti said that he had taken a photograph of the APC, but he did not produce it to the Tribunal. Mr Furletti assumed that the vehicle had come from Nui Dat and was part of 3 Cavalry Regiment’s fleet. He said that one person had been killed in the APC and three or four had been injured. He said he was told that at the workshop and he had read numerous books which were written about it. Mr Furletti then said that, from his memory, there was part of a little finger or “something” lying in the damaged APC. When asked whether he thought much of the incident he said, “Not at that time, no”. Asked if the incident had stressed him he said, “Not overly, no”. He confirmed that the incident did not distress him.
48. In his report, Mr Church referred to an extract from Mr P. Anderson’s book, When the Scorpion Stings, The History of the 3rd Cavalry Regiment, Vietnam, 1965 – 1972. According to Mr Anderson, two vehicles were struck by mines and severely damaged. These incidents occurred on 23 April 1970 and 14 June 1970. Mr Church conceded that Mr Furletti could have been involved in the repair of those vehicles. Accordingly, I am satisfied, on the balance of probabilities, that this event did occur as stated by Mr Furletti.
49. It follows from the reasons set out above, and accepting Dr Strauss’ diagnosis, that I find that Mr Furletti is suffering from PTSD. Therefore, I am required to apply the 4 steps in Deledio to determine whether a reasonable hypothesis exists connecting Mr Furletti’s PTSD with his operational service.
50. I have no doubt that the material before the Tribunal points to a hypothesis which connects Mr Furletti’s PTSD with circumstances of his operational service.
51. The RMA has determined a SoP for PTSD under sub-section 196B(2) of the Act. The most current of those instruments is Instrument N° 3 of 1999 as amended by Instrument N° 54 of 1999. As a minimum, one of the factors set out in the SoP must exist before it is said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s relevant service. According to Instrument N° 3 of 1999, the factors are:
(a)experiencing severe a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
As I understand Mr Furletti’s case, he relies only on factor (a) above.
52. The expression “experiencing a severe stressor” is defined in the SoPs and in particular, in Instrument N° 54 of 1999 where that expression has been amended. According to Instrument N° 54 of 1999, 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 threat to a person’s, or another person’s, physical integrity.
In the setting of service in the defence forces, 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.
53. The next question which I must determine is whether the hypothesis raised by Mr Furletti is reasonable. It will only be so if it is consistent with the “template” found in the relevant SoP. In my opinion, not one of the incidents, namely, being confronted by maimed children at the orphanage, the rocket attack on Vung Tau airbase and naval facilities, and the discovery of part of a finger in an APC, fit the definition of “experiencing a severe stressor”. In the rocket attack, Mr Furletti said that he continued drinking at the bar, because the bar was sandbagged and therefore it afforded him as much protection as anywhere else. However, it is not possible to conclude that the rocket attack, which was at least one kilometre away from where he was at that time, involved actual threat of death or serious injury. Mr Furletti's behaviour during the attack bears witness to that.
54. Mr Furletti’s visits to the orphanage caused him to pity the maimed children but each such visit does not fall within the definition of experiencing a severe stressor. It does not satisfy the definition, particularly, “witnessing casualties, atrocities or abusive violence.” In my view, reference to witnessing casualties is a reference to seeing wounded persons, and not those which had subsequently recovered from their wounds. As for seeing part of a finger in the APC, Mr Furletti said that he did not think much about that event at the time and that it did not overly distress him. Clearly, that event does not fall within the definition of “experiencing a severe stressor”. Therefore, because Mr Furletti’s hypothesis fails to fit within the template established by Instruments N° 53 and 54 of 1999, his hypothesis connecting PTSD with his operational service must be deemed not to be reasonable.
55. Mr Ferguson, and later Ms McCullough, told the Tribunal that if PTSD was not found because the stressors did not occur, Dr Strauss’ alternate diagnosis would be generalized anxiety disorder. Dr Strauss, who gave evidence at the hearing, confirmed that to be the case. Dr Strauss was also asked if he could identify the clinical onset of generalized anxiety disorder and he said that the symptoms, as best he could recollect, became apparent in the 1990s, after a particular incident in which Mr Furletti came across Kosovo and East Timor refugees, while he was working at Puckapunyal. Dr Strauss said that although Mr Furletti told him he was anxious when he got back from his operational service, and there was some excessive alcohol consumption, he said it appeared that Mr Furletti’s clinical symptoms began some time in the 1990s.
56. The possibility that Mr Furletti is suffering from generalized anxiety disorder was, indirectly, raised by Dr Rose. In fact, Dr Rose’s opinion was that although there was insufficient evidence for a diagnosis of PTSD to be made, he considered that Mr Furletti was suffering from a major depressive disorder which was triggered off by reminders of his Vietnam war experiences.
57. On the basis of the medical evidence given by Dr Strauss and Dr Rose, I am satisfied, on the balance of probabilities that Mr Furletti suffers from generalized anxiety disorder. I am also satisfied that evidence produced by Mr Furletti in respect of the visits to the orphanage, the finding of part of a finger in the APC, and the rocket attack at Vung Tau, constitutes sufficient material pointing to a hypothesis connecting Mr Furletti’s generalized anxiety disorder with the circumstances of his operational service.
58. There is a SoP, which has been determined by the RMA under sub‑section 196B(2) of the Act, which deals with generalized anxiety disorder. The relevant instrument is N° 1 of 2000. The only factor which applies to Mr Furletti, and which must exist before it can be said that a reasonable hypothesis has been raised connecting his anxiety disorder with his operational service, is “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
59. However, the only evidence before the Tribunal regarding the onset of a generalized anxiety disorder is the evidence of Dr Strauss, where he said that the clinical onset was sometime in the 1990s. The events upon which Mr Furletti relies occurred during his operational service in 1970. Therefore, the hypothesis raised by Mr Furletti linking his generalized anxiety disorder with operational service is not consistent with the “template” found in the SoP. The hypothesis cannot therefore be said to be reasonable.
CONCLUSION
60. I am satisfied beyond reasonable doubt that the shooting incident and the white mice incident did not occur. Therefore, those claimed events cannot constitute a severe stressor for the purpose of a finding that Mr Furletti suffers from PTSD.
61. As for the claims which are based on the orphanage incident, the rocket attack on Vung Tau and the finding of part of a finger in the APC, because I have found on the balance of probabilities that those events occurred, I accept a diagnosis of PTSD and/or general anxiety disorder. However, when the hypotheses regarding those two diseases are examined, it is clear in my opinion that they are not consistent with the minimum requirements established by the relevant SoPs. For that reason, each of the hypotheses must be deemed not to be reasonable and Mr Furletti’s claims based on these events must fail.
62. The decision of the Commission is affirmed.
I certify that the sixty‑two [62] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E, Fice, Member
(sgd) Olympia Sarrinikolaou
ClerkDate/s of Hearing 30 July 2004, 9 November 2004 and 9 May 2005
Date of Decision 29 July 2005Solicitor for the Applicant: Mr D. DeMarchi and Ms I. Black, DeMarchi and Associates
Solicitor for the Respondent Mr R. Ferguson and Ms J. McCulloch, Advocacy Section, Department of Veterans’ Affairs
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