Giger and Repatriation Commission

[2007] AATA 2000

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600298

VETERANS' APPEALS DIVISION		)
Re		VERA GIGER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date30 November 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............Signed...............

Deputy President

CATCHWORDS

VETERANS AFFAIRS – application for widow’s pension – veteran was Ordinance Artificer – veteran took his own life – veteran suffered from depression – issue of time of clinical onset of depression - whether death was due to depression caused by war service- whether bombardments in Korean War were a severe traumatic event- applicant was remote to bombardment and not an eyewitness – hypothesis relied upon is not reasonable – decision under review – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth.) – ss120(1), (3)

Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331

REASONS FOR DECISION

30 November 2007   Deputy President P E Hack SC    

Introduction

1.Mrs Vera Giger is the widow of the late Jack Hans Giger who died by his own hand in December 1966. Mr Giger saw service in the Royal Australian Navy during the Korean War. Mrs Giger contends that her late husband’s death was caused by his war service and that accordingly she is entitled to a widow’s pension.

2.The respondent, the Repatriation Commission, decided on 8 April 2005 that the death of Mr Giger was not related to war service and that a war widow’s pension was therefore not payable. That refusal was affirmed by the Veterans Review Board. Mrs Giger now seeks a review of the decision in this Tribunal.

Background

3.Mr Giger had a number of periods of “eligible war service” as that term is used in the Veterans’ Entitlements Act 1986 (Cth.) (the Act) but that which is of particular relevance in the present proceedings was his service aboard HMAS Anzac in Korea between 6 September 1952 and 26 June 1953.

4.The circumstances of that service were the subject of research undertaken by Dr Albert Palazzo, an historian, whose report dated 28 August 2006 is before me. There was no challenge by the Commission to Dr Palazzo’s conclusions and what follows is taken, in the main, from his report.

5.HMAS Anzac was a “Battle” Class destroyer. Her main armament comprised four 4.5 inch Mark VI guns as well as anti-aircraft and anti-submarine weapons. In the period between September 1952 to June 1953 when Mr Giger was aboard HMAS Anzac she participated,

“in coastal patrol, interdiction and bombardment missions on the eastern and western shores of North Korea.”

Dr Palazzo’s research of her Reports of Proceedings during this period lead him to these conclusions:

“In the course of its tour of operations in North Korean waters from 6 September 1952 to 26 June 1953 the ANZAC participated in 35 shore bombardment missions. Of these attacks two were specifically identified as bombardments of population centres (see missions 27 and 29). Furthermore, while in command of its Task Group the ANZAC authorised three further bombardments of North Korean population centres. It should also be noted that the number of shells employed by the ANZAC, and the ships under its command, in the bombardment of population centres were among the heaviest discharged for any fire missions for which data is available.

In addition, a number of the bombardments undertaken by ANZAC were at night (see missions 5, 8, 9, 11, 14, 16, 18, 20, 21, 22) when targets could not be clearly seen or identified and the fall of shell was unlikely to be precise. In particular, in fire mission 9, the target is given as simply a fire on shore and the cause of the blaze is not provided. On some occasions the ANZAC undertook fire mission for which the target was an entire island not an identified and legitimate enemy military force or installation (see missions 3 and 4). The Reports of Proceedings does not provide information on possible collateral damage from any of these bombardments.

Lastly, on one occasion the ANZAC attacked a friendly fishing vessel (see mission 9).”

6.During this service Mr Giger was an Ordinance Artificer. The nature of the tasks he was called upon to perform in that role was the subject of a further report obtained by Mrs Giger (with the agreement of the Commission) after the conclusion of the hearing. That report[1] indicates that the job required Mr Giger to inspect, test, maintain, store, and prepare for use ordnance material such as guns, primers, fuses, shells, mines, bombs, rockets and guided missiles, tanks, chemical, biological, and radiological munitions, and fire-control equipment for weapons. An artificer is also required to test and inspect material for functioning and serviceability, using prescribed gauges and test equipment, and by firing or detonating weapons and munitions. The job also requires a person to disassemble, repair, and reassemble ordnance of all types using hand tools, power tools and material-handling equipment. An artificer requires the skills to assemble and load explosive and inert elements to prepare ammunition items for use, and to clean, store, and maintain ordnance material according to technical manuals. A person working as an Ordnance Artificer may be designated to roles such as Munitions Worker, Nuclear Weapons Mechanical Specialist, Torpedo Specialist, Armourer, and Bomb-Disposal Specialist. It seems appropriate to infer that Mr Giger participated in the firing of the guns during the course of the bombardment of North Korea.

[1]Exhibit 12.

7.It is apparent that Mr Giger was affected by certain aspects of his service during the Korean War. Whilst that service took place prior to him meeting Mrs Giger, his sister, Margaret, told Mrs Giger that he was “upset” on his return. An occasion when “he had seen someone blown up in front of him” was apparently related by the sister to Mrs Giger and Mrs Giger gave evidence in her statement, which was not challenged, of having been told that by her sister-in-law Margaret. In her oral evidence, she spoke of having been told by her sister-in-law “he was upset about blowing someone up but I’m not sure who”. Curiously, when Dr David Alcorn saw Mrs Giger for the purposes of the proceedings she reported to him of Mr Giger’s sister (according to his report[2]) that there had been a rumour that “someone blew up in front of her – but I don’t know if that’s actually true”.

[2]        Exhibit 7, page 10.

8.Mr Giger’s unhappiness with his war service was the subject of frequent discussions in the household once Mr and Mrs Giger married. Mrs Giger described it as “a constant theme throughout his life and appeared to worry him a great deal.” Mrs Giger’s statement said this:

“It is my understanding of what occurred that distressed Jack was that his ship HMAS ANZAC was involved in the bombardment of towns or villages in Korea that contained innocent civilians. He told me that he worked on the ship’s guns and that he had no real concerns about going to war. However, he was deeply upset by being ordered to bombard Korean villages, which he believed contained innocent civilians and which he did not consider to be legitimate military targets. He would say that it was not fair fight, and that there was no contest and that as a result of receiving these orders, he lost his respect for Officers.”

In her oral evidence Mrs Giger described how Mr Giger thought that what he had been required to do “was wrong”. It was, he said, “no contest, sending shells to villages”. She described how he was “disgusted and upset and thought that they shouldn’t have been ordered to do that”. Dr Alcorn reported[3] this exchange with Mrs Giger during his interview:

“QuestionDid he give you any clue that it had been frightening?

AnswerOh yes – they were in the boat – they had to fire this gun at people’s houses and they were in there – he was very upset about that.”

[3]        Exhibit 7, page 2.

There was no challenge to any of Mrs Giger’s evidence and I accept it.

9.Mr Giger continued his service in the Navy until discharge in December 1960.

10.After discharge Mr Giger found employment, apparently on a casual basis, at the Lucas Heights atomic reactor. During 1966 he applied for permanent employment but this was rejected. Within a short time[4] after that rejection Mr Giger took his life by self administered carbon monoxide poisoning in December 1966. Both psychiatrists who gave evidence before me, Dr Colin Brennan and Dr David Alcorn, are agreed that at the time of his death Mr Giger was suffering from depression. The medical controversy in the present case, which is dealt with below, is over the time of clinical onset of depression.

[4]        Mrs Giger has described it as both a few weeks and a few months.

A War-Caused Death

11.Mrs Giger’s entitlement to a war widow’s pension is dependent upon her husband’s death being “war-caused”. It is sufficient for present purposes to note that the death is war-caused if it arose out of, or was attributable to eligible war service. Where, as is the case here, a veteran has rendered operational service, the issue of war-causation is addressed by applying the standard of proof in s 120(1) of the Act. That sub-section requires the Commission (and this Tribunal in its stead) to hold that a death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. And it will be satisfied of that beyond reasonable doubt if, after consideration of the whole of the material, it is of the opinion that that material does not raise a reasonable hypothesis connecting the death with the circumstances of the service[5].

[5]        See s 120(3) of the Act.

12.For claims made after 1 June 1994 there is the additional requirement that any hypothesis linking the death with operational service be considered by reference to the Statements of Principles issued by the Repatriation Medical Authority.

The Hypothesis Advanced

13.The hypothesis advanced on behalf of Mrs Giger by Mr Jarro of counsel is that Mr Giger’s death resulted from suicide because of his depressed state of mind which arose out of his war service to a material degree[6].

[6]        Exhibit 11, paragraph 7.

14.Given that the cause of Mr Giger’s death was suicide, it is relevant to have regard to Instrument No. 71 of 1996, the Statement of Principles concerning suicide or attempted suicide. Clause 5(b) of that Statement identifies:

“suffering from depression at the time of suicide …”

as a factor that must exist before it can be said that a reasonable hypothesis has been raised connecting suicide with the circumstances of a person’s relevant service. Mr Smith, the advocate for the Commission, accepted that Mr Giger was suffering from depression at the time of his suicide. It is, accordingly, necessary to consider Instrument No. 17 of 2007, the Statement of Principles concerning depressive disorder.

15.Two matters are relied upon as relevant factors here – experiencing a category 1A stressor[7] or a category 1B stressor[8] within the five years before the clinical onset of depressive disorder. For the purposes of the Statement of Principles a category 1A stressor means:

[7]        See Clause 6(b)

[8]        See Clause 6(c)

“… 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 or more 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.”

16.The case advanced for Mrs Giger is that Mr Giger’s experience in the course of the bombardments of Korea was a severe traumatic event that amounted to experiencing a life-threatening event, the only part of the definition of category 1A stressor relied upon. Alternatively, it was submitted that that experience was a severe traumatic event, that satisfied one or more of paragraphs (a), (c), (d) or (e) of the definition of a category 1B stressor.

17.I am not now concerned to make findings of fact; I am concerned only to see whether the hypothesis advanced is reasonable, that is, whether it fits, or is consistent with, the factors relied upon in the Statements of Principles. For an hypothesis to be reasonable it must:

“be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”[9]

[9]Repatriation Commission v Bey (1997) 79 FCR 364, 372.

18.It is convenient at the outset to deal with the factual element common to Factor 6(b) and Factor 6(c) which is the clinical onset of depressive disorder. Having regard to the material relied upon as being the traumatic event clinical onset needs to be somewhere in the region of January to March 1958. Clinical onset in this context means:

“Either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of a disease being present at that time.”[10]

[10]        See Lees v Repatriation Commission (2002) 125 FCR 331 at 336.

In the present case, the evidence of Dr Brennan is that there was clinical onset at least by that time. I appreciate that Dr Alcorn has a contrary view but as I have said I am not here concerned with reaching any conclusion as to which body of evidence should be preferred. It is enough to note that there is material that does satisfy the common element of the factors relied upon.

19.The next question is whether, on the material put forward, Mr Giger’s experience answered the description of a severe traumatic event which involved experiencing a life-threatening event. I do not think that it does. Mr Jarro submitted that a serviceman in the position of Mr Giger could experience a life-threatening event by being involved in a bombardment when the lives under threat were those of the villagers or innocent civilians who may have been harmed by the bombardment. I am unable to agree. On ordinary principles of statutory construction, the events that are set out as constituting a category 1A stressor all involve events that directly impact upon the life of the person in question rather than someone remote from that person.

20.But beyond that it is difficult to see that the bombardment constituted a “severe traumatic event”. The material suggests that Mr Giger found the bombardment upsetting. Indeed it might even be said that he was offended by it. But on the account given by Mrs Giger, and set out above, the effect on Mr Giger amounted to moral outrage rather than the horror or devastation that might attend upon experiencing a severe traumatic event.

21.Similarly, and subject to one exception I will deal with shortly, I am not satisfied that the evidence fits the description of a category 1B stressor. Mr Giger was quite remote to the bombardment and could not be said to have been an eyewitness to any person being killed or critically injured. Neither was he an eyewitness to atrocities inflicted on others nor was he an eyewitness to, and did not participate in, the clearance of critically injured casualties. The only part of the definition that seems to me to have any possible relevance is that in paragraph (d), killing or maiming a person. It is possible to imagine that the bombardment may have had the consequence that a person or persons may have been killed or maimed but plainly Mr Giger could not have been aware of that because of the distances involved. There is no suggestion in the material of any reported casualties.

22.Thus, in my view, the hypothesis relied upon is not a reasonable hypothesis as it is not pointed to or supported by the material.

23.There is however one aspect of the evidence which warrants closer attention. It was not the subject of any submissions by the parties however there is material in the second-hand hearsay account of Mr Giger seeing someone blown up that arguably is capable of satisfying at least part of the definition of a category 1B stressor. That material, I consider, raises the possibility that Mr Giger was an eyewitness to a person being killed or critically injured (on the basis of Mrs Giger’s statement or her oral evidence) or that he killed or maimed someone (on the basis of Mrs Giger’s oral evidence). But the difficulty I have in regarding that as a reasonable hypothesis is that, were it to be assumed that Mr Giger did witness, or was a party to, such an event, the material does not point to that event as being a severe traumatic event. At the highest, it is said that Mr Giger was “upset”. To the extent that there is material that deals with Mr Giger’s reactions generally to the events in Korea that material does not suggest that Mr Giger regarded this incident as being a severe traumatic event or that the incident had any effect on him beyond the undefined “upset”.

24.In these circumstances I regard a hypothesis relying upon this event as amounting to experiencing a category 1B stressor as not being reasonable. The material does not point to it; rather it is merely a possibility left open on the material.

25.It follows that there is no reasonable hypothesis raised on the material that fits any of the factors in the current Statement of Principles for depressive disorder. That being so I am required to have regard to the earlier Statement of Principles, Instrument No. 58 of 1998.

26.The only factor that seems to have any arguable relevance is that identified in paragraph 5(b):

“experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.

There is material that is capable of satisfying the temporal requirement; the critical question is whether the events reported by Mr Giger amount to experiencing a severe stressor or stressors.

27.That expression is defined as meaning:

“an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.

Whilst the incidents of bombardment are capable of being regarded as identifiable occurrences there is no material that any of those occurrences evoked feelings of substantial distress in Mr Giger. Accordingly, no reasonable hypothesis, capable of satisfying the earlier Statement of Principles, is raised by the material. 

28.It follows that I would affirm the decision of the Commission of 8 April 2005.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .................Signed...................................................
  Eleanor O’Gorman, Associate

Date of Hearing  29 October 2007
Date of Decision  30 November 2007
Counsel for the Applicant         Mr N Jarro

Solicitor for the Applicant          Terence O'Connor
Solicitor for the Respondent     Departmental Advocate