Gillen and Repatriation Commission
[2007] AATA 1254
•24 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600030
VETERANS' APPEALS DIVISION ) Re MICHAEL JAMES GILLEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)Date24 April 2007
PlaceAdelaide
Decision The Tribunal
(a) sets aside the decision under review in relation to bilateral sensorineural hearing loss and tinnitus and substitutes a decision that those conditions are war-caused;
(b) remits the matter to the Repatriation Commission for assessment of the applicant’s entitlement to pension on the basis that his entitlement to pension in respect of bilateral sensorineural hearing loss and tinnitus is from 3 March 2004; and(c) affirms the decision in relation to “emotional behaviour”.
..............................................
J G SHORT
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service – diagnosis – claim that bilateral sensorineural hearing loss, tinnitus and “emotional behaviour” were war-caused – consideration of Statement of Principles – witnessing destruction of sampan and occupants by machine-gun fire – scare charges – decision in relation to bilateral sensorineural hearing loss and tinnitus set aside – decision in relation to “emotional behaviour” affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Deledio (1998) 83 FCR 82Statement of Principles No 29 of 2001
Statement of Principles No 25 of 2001REASONS FOR DECISION
24 April 2007 Mr J G Short (Member) Member Professor P Reilly AO (Member) 1. Michael James Gillen was engaged in operational service in Vietnam on HMAS Sydney (the Sydney) during the following periods:
20 December 1967 to 3 January 1968
17 January 1968 to 16 February 1968
27 March 1968 to 26 April 1968
21 May 1968 to 13 June 1968
13 November 1968 to 28 November 1968
8 February 1969 to 25 February 1969
2. On 3 June 2004, Mr Gillen lodged a claim for pension in respect of “emotional behaviour”, hearing loss and tinnitus. The Repatriation Commission (the Commission) diagnosed bilateral sensorineural hearing loss (SNHL) and tinnitus. However, the Commission was unable to establish a diagnosis in respect of the claim for emotional behaviour. On 27 October 2004 the Commission rejected the claim for SNHL and tinnitus. It refused the claim for “emotional behaviour” on the ground that Mr Gillen was not suffering from any psychiatric disorder.
3. On 4 November 2005 the Veterans’ Review Board (VRB) affirmed the decision under review. Mr Gillen’s statement of facts and contentions asserted, at point 6, that “As a consequence of his operational service the applicant has experienced symptoms of post-traumatic stress disorder, hearing loss and tinnitus”.
issues before the tribunal
4. The issues before the Tribunal are whether Mr Gillen suffers from post-traumatic stress disorder (PTSD) or any other condition which would answer the claim for “emotional disorder”, and if so, whether that condition is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act). The parties accept the diagnosis of Mr Gillen’s SNHL and tinnitus. The Tribunal must determine whether these two last mentioned conditions are war-caused.
5. It is common ground that if Mr Gillen’s claim is successful, the earliest date of effect pursuant to s 20 of the VE Act would be 3 March 2004.
legislative background
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; …”
7. As Mr Gillen has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide 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.”
8. The issue of diagnosis is logically one which must be determined prior to determination of whether any diagnosed injury or disease is war related. In relation to this decision, s 120(4) of the VE Act prescribes that this issue must be determined to a fact finder’s “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 74 ALR 537 at pages 545-547, Beaumont J indicated that this term equated to the civil standard, that is on the balance of probabilities.
background
9. Mr Gillen was born on 26 December 1947. He served in the Royal Australian Navy from 31 July 1965 until 19 August 1970. Mr Gillen rendered operational service as a steward during periods relating to his service in Vung Tau Harbour.
10. Mr Gillen asserts, in essence, that certain stressful events occurred during his operational service, which caused him to suffer from PTSD. He also asserts that he was exposed to the sound of the discharge of weapons and that this exposure caused his SNHL and tinnitus.
Bilateral Sensorineural Hearing Loss and Tinnitus
11. The Commission indicated that it would not contest Mr Gillen’s suggestion of experiencing war-caused SNHL and tinnitus. These conditions are the subject of Statements of Principles (SoPs) in the form of Instrument No 29 of 2001 for SNHL and Instrument No 25 of 2001 in respect of tinnitus. Mr Gillen’s evidence of exposure to the sound of weapons fire and resulting SNHL and tinnitus constitute a hypothesis. Statements of Principles have been issued in respect of these conditions. Factor 5(a) of the SNHL SoP refers to being exposed to an impulsive noise of at least 130 dBA without adequate ear protection before the clinical onset of SNHL, and factor 5(d) of the tinnitus SoP describes suffering from SNHL at the time of the clinical onset of tinnitus. Mr Gillen’s evidence is that he developed SNHL as described in an audiogram dated 23 August 2004 and that at the same time he began to experience tinnitus which he described as a low-pitched sound in his right ear. On the evidence before us, the Tribunal is satisfied that there is no sufficient ground for finding, beyond reasonable doubt, that Mr Gillen does not experience tinnitus and SNHL, caused as suggested. In these circumstances the Tribunal is satisfied that a reasonable hypothesis exists linking Mr Gillen’s SNHL and tinnitus with his war service. The Commission’s decision in respect of these conditions is set aside.
Emotional Behaviour/Post-traumatic Stress Disorder
12. Mr Gillen’s suggested condition of PTSD is the subject of SoPs. We note that where a SoP exists we must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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 a 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.”
13. Before embarking upon a consideration of the enunciated Deledio steps, the Tribunal must first be satisfied that Mr Gillen does suffer from a diagnosed medical condition which answers his claim for “emotional behaviour”. Mr Gillen’s assertion is that he suffers from PTSD. Medical support for this contention is found in a report of psychiatrist, Dr Dan Short dated 2 September 2005 (T15/88-104). Dr Short based his opinion and his diagnosis of PTSD, in part, upon an understanding that Mr Gillen had experienced severe stressors in the form of the discharge of scare charges and witnessing the destruction of a Vietnamese sampan and its occupants by US patrol boat machine-gun fire (the sampan incident) while serving as a steward in Vung Tau Harbour. The Commission contends that Mr Gillen has invented his evidence of having witnessed the sampan incident after hearing of at least one other veteran claiming pension in reliance upon a similar observation. The Commission pointed out that in providing a history to psychiatrist Dr Marty Ewer (used as a basis for his report dated 8 October 2004) Mr Gillen had denied experiencing a severe stressor. Dr Ewer expressed the opinion that Mr Gillen did not suffer from any psychiatric condition. He specifically considered that Mr Gillen did not suffer from PTSD.
mr gillen’s evidence
scare charges
14. Mr Gillen explained that he made six trips to Vung Tau Harbour serving as a steward to an officers’ mess on the Sydney. Mr Gillen said that the ship’s company had been warned that on entering Vung Tau Harbour the ship would be in a state of readiness and that defensive procedures would be taken including the dropping of scare charges from the Sydney and from motor cutters. Mr Gillen said that he heard scare charges explode on many occasions during each of his six trips. He said that he served at various locations throughout the ship but usually in the ward rooms. He said that the sound of the scare charges was “probably” louder below waterline. He said that he was not really sure if he ever heard scare charges from below the waterline, but “possibly” from close to the waterline. He said hearing scare charges caused him initial shock and uncertainty. He referred to the random nature of the explosions. He said that during the ship’s moorings from about 7:00am until 3:00pm, he would have heard between 12 and 30 scare charges on each trip.
sampan incident
15. Mr Gillen told the Tribunal that he now understands that it was during his fourth trip to Vietnam between 21 May 1968 and 13 June 1968, and particularly on a date he now considers to be 1 June 1968, that he was standing on the flight deck of the Sydney between about 10:30 and 11:00am. He said that he heard a megaphone and saw an American patrol boat about 80 to 90 metres behind a sampan. He said that the sampan was heading on an angle towards the Sydney’s bow. He said that he could see one person at the rear of the sampan who was waving his arms towards the patrol boat. He said he watched this for about a minute. He said he then witnessed a machine-gun open fire from the US patrol boat. He said that he could see the shells striking the water near the sampan and then saw the person at the rear of the sampan blown forcefully over the side of that vessel. He said that the firing continued and a second adult was blown back underneath a central covering. He then noticed two smaller figures emerge from the covering. He said that he started to shout to the occupants of the US patrol boat not to shoot and that “they were children”. He said he then felt ill. He did not see what happened to the children. Mr Gillen said that he had to leave as he was about to vomit. He attempted to reach the “head” below deck, however he realised that he would be physically ill before reaching the head and consequently moved to an area on the bridge where he was ill over the side of the ship. He said that he then went below deck to clean up. He said that when he returned to the flight deck 5 to 6 minutes later the only vessel visible was the US patrol boat. He saw some debris in the water. Mr Gillen said that he had been in company with another steward. He did not know who that person was and when he returned to the flight deck that person was no longer present. Mr Gillen said that his immediate concern was returning to his work station and getting back to work. He said that lunch was served at about 11:00am. He said that he does not recall discussing the incident with anyone at the time, including the other steward who was standing near him on the flight deck. He later said however that he may have. Mr Gillen said that he had been horrified and “slightly scared”. He said that it was the first time he had seen any action and he was “very, very upset”.
16. Mr Gillen went on to tell the Tribunal that he believes that he had been able to put the incident out of his mind until about 10 or 11 years ago when he attended a memorial dedication in Canberra. He described the dedication as occurring in or about 1995 or 1996. He said that after mixing with other ex-service personnel he felt very emotional on his drive back to Adelaide. Mr Gillen said that the sampan incident returned to his mind when he arrived back in Adelaide. He said that since that time he has experienced nightmares. Mr Gillen later said that although he cannot recall thinking of the sampan incident prior to the Canberra dedication in or about 1995/96, he “probably would have”.
17. Mr Gillen said that leading up to Anzac Day 2004 he spoke to a Mr Norm Coleman and told him that he was having “problems”. He did not specifically discuss the sampan incident or any other incident with Mr Coleman. He said that Mr Coleman referred him to the Vietnam Veterans’ Association and that a Mr Warrick Lee assisted him in completing a claim form for a disability pension on 28 May 2004 (T5/44-54). This claim form does not specifically mention a sampan incident or any other incident but includes a claimed difficulty of “emotional behaviour” being “caused by my war service in Vietnam”. Mr Gillen said that the form was probably filled out by Mr Lee. Mr Gillen did not know of Dr Ewer, however the form indicates “This veteran wishes to see Dr Marty Ewer”.
18. Mr Gillen said that he was fully aware that he was not telling anyone, including his wife, the full story about his service in Vietnam. He said that he first told his wife of the sampan incident in late 2004, that is after his claim was made but before he attended psychiatrist Dr Ewer. He said that he does not recall telling his wife what happened but that she “probably drew it out” of him.
19. Mr Gillen said that the sampan incident was in his opinion the dominant link with his claimed experience of PTSD. He said that his wife accompanied him to the arranged interview with Dr Ewer on 8 October 2004. He said that at the time of this interview he was aware of the significance of the sampan incident in relation to the success or otherwise of his claim for acceptance of a psychiatric disorder as having been war-caused. Mr Gillen said however that when he entered Dr Ewer’s offices he felt uncomfortable because they were like a “Vogue magazine”. He said that he felt that Dr Ewer was not interested in him and consequently he “probably” signalled his wife to remain quiet. He decided that he would not tell Dr Ewer what he considered to be the truth about the stressors he experienced during his visits to Vietnam. He said that instead, he specifically denied experiencing any stressors. Dr Ewer’s report confirms that Mr Gillen had told him that he had not experienced any stressors. The report does however record Mr Gillen’s history as:
“Mr Gillen feels very guilty for taking troops to Vietnam. He described his memory as ‘shocking’ and his concentration is impaired. His confidence is diminished but his motivation is ‘reasonable’. He denied suicidal thoughts but he described himself as a ‘worrier’.”
20. Mr Gillen said that after his interview with Dr Ewer he attempted to speak with Mr Warrick Lee on the telephone at the Vietnam Veterans’ Association. He said that he cannot recall who he spoke with but that it would have been either Mr Lee or a Mr Hay. As a result of this discussion an appointment was made to see another psychiatrist, Dr Dan Short. A letter of request to Dr Short reads as follows:
“This veteran has an appointment with Dr Short at 2.15 pm Tuesday, 14 June 2005. He has previously seen Dr Ewer but did not relate to him and refuses to see him again. Dr Ewer’s report is attached.
Could you please interview him re his experiences in Vietnam and psychological stressors required by DVA. He has talked to this office re scare charges and other incidents which occurred in Vietnam. This is a review board matter. Bill and report to Don Hay please.”
21. Mr Gillen told the Tribunal of a 40-year reunion of his Navy intake was held on or about 31 July 2005. Mr Gillen said that leading up to that reunion, and he cannot say when, he telephoned a Mr Rushworth to persuade Mr Rushworth to attend the reunion. He said that during that telephone conversation Mr Rushworth had told him that he had claimed benefits and had an appeal in the system in relation to a sampan incident. Mr Gillen said that it occurred to him that this was the same sampan incident he had witnessed and that it turned out that Mr Rushworth had also observed the incident from the flight deck of the Sydney on 1 June 1968. Mr Gillen said that the two men decided to provide evidence in each other’s appeal. Mr Gillen said that Mr Rushworth did not attend the 40th reunion. Mr Gillen did attend and there met a Mr John Lacey who mentioned a similar sampan incident. Mr Gillen said however that Mr Lacey may have observed some other sampan incident as there were significant differences in their recollections.
22. Mr Gillen said that he believes the first time he had mentioned the sampan incident to anyone (other than possibly the other steward who also observed the incident), was shortly after claiming benefit. He said however that he cannot recall whether his first mention of the sampan incident had been to Mr Lee or to Mr Hay. He said that it probably was not Mr Lee because Mr Lee was ex-Army and there was some rivalry. He said that he could not recall whether the discussion had occurred face-to-face or by telephone.
23. Mr Gillen told the Tribunal of his interviews with Dr Short. He said that he was more relaxed, that the interviews were longer and held over two days, and that he felt more comfortable with Dr Short and consequently told him of the sampan incident. It was in the light of this history that Dr Short has diagnosed PTSD.
24. A report from WriteWay Research authored by Commodore A Brecht is found at T16. The report was prepared for use in proceedings in relation to another veteran’s claim for entitlement to pension claimed in part on the basis of having witnessed the destruction of a sampan. The report refers to evidence obtained from at least three people who consider they saw the destruction of a sampan on 1 June 1968. Captain DT Hunt RAN (Retired) in 1968 was a Lieutenant Commander on the Sydney between 4 January 1967 and 14 November 1968. Captain Hunt indicated that he recalled an occasion when a Swift class patrol boat approached a local fishing craft which was between 600 and 1,200 yards from the Sydney. Captain Hunt said that the Swift class patrol boat sunk the fishing boat. Captain Hunt said that at the time he was on the bridge of the Sydney. He said that the presence of the craft was reported to harbour control for investigation and shortly after the Swift patrol boat (Vietnamese manned) arrived at the scene and subsequently the fishing craft was blown up. Captain Hunt said “The event took place at some distance from Sydney and required binoculars to provide a clear view”.
25. Commander BE Eddes RAN (Retired) was a midshipman on the Sydney in 1968. He indicates that at some stage he was on the upper deck of the Sydney and observed, at a distance of 5 to 6 cables (1,000 to 1,200 yards) what appeared to be a small fishing vessel with four occupants on board. He said that a short time later he observed two of the occupants enter the water and a short time thereafter observed an American Swift class patrol boat approach the fishing boat from the east at high speed. He heard gun fire emanating from the patrol boat and saw persons from the fishing boat in the water. Following this, he observed the patrol boat crew recover from the water the two persons who appeared inert.
26. A third officer from the Sydney who recalled the event was a Mr G Besomo. He was a midshipman. He said that he was driving a landing craft from the Sydney embarking Army personnel during the ship’s call at Vung Tau. He observed an American patrol boat at a distance of 300 to 500 metres arrive on the scene. It appeared to strafe with some sort of machine gun an apparently unmanned small fishing boat which he could best describe as a long canoe with canopy. He considered the vessel to be apparently unmanned. Mr Besomo said that at the time the landing craft was in the vicinity of a freighter at anchor but a considerable distance and certainly out of sight of the Sydney. He did not see any bodies.
27. Mr Gillen said that what he observed must have been a different incident as the sampan was much closer and certainly nowhere near 1,000 yards or metres from the Sydney. He also described the other vessel as much smaller and definitely not a Swift class vessel.
28. It was suggested to Mr Gillen that he could not possibly identify gender or distinguish between adults and children at the 300 to 350 metre minimum distance he later mentioned. Mr Gillen said that he probably assumed the first two people he saw were adults and the second two, children, probably due to size differences. He said that he probably assumed the person at the rear of the boat was a male as that person was controlling the vessel, and that the second adult was a female in part because of the conical hat worn. Mr Gillen repeated that he was sure that the patrol vessel was not a Swift class patrol boat as described by Captain Hunt and Commander Eddes, but a smaller vessel.
mr rushworth’s evidence
29. Mr Rushworth said that he was in the same Naval intake as Mr Gillen. He too referred to scare charges and said that he was told that the ship would be in a state of readiness on entering Vung Tau Harbour. He said however that there were no specific details provided to the crew about what would happen while in Vung Tau Harbour. He said that on his second trip to Vung Tau Harbour he was checking cargo on the flight deck and at some point had noticed a small patrol boat with a USA flag. He said that it was about 300 yards off Sydney’s starboard side. He said that he saw a sampan which seemed to be heading towards the Sydney. He said that the American vessel gave verbal warnings through a loud speaker and then opened fire and destroyed the sampan. He said that he was with two or three other people at the time but that nobody said anything. He said he thinks they were all shocked and simply continued with their duties. He said that he was situated behind the ship’s island and towards the stern. He said he assumes the sampan was manned, however he did not actually recall seeing people in the sampan. He said that he stayed on deck and continued with his duties. He said that he tried to discuss the incident with the two or three other people who had been standing by him, however they did not want to discuss it.
30. Mr Rushworth said that he arrived at a date of the incident as 1 June 1968 after going through his service records. Mr Rushworth later said that he had not noticed whether anyone else paid attention to what had been happening. He said “We just went back to our job”.
31. Mr Rushworth said that he first spoke with Mr Gillen prior to the 2005 reunion. Mr Rushworth said that he did not attend that reunion but later in 2005 personally met Mr Gillen as arranged, at a train station in Peterborough in the north of South Australia.
discussion of the evidence
32. The Commission’s advocate suggested that Mr Gillen had no knowledge of a sampan incident at the time of his meeting with Dr Ewer on 8 October 2004 and that this was why Mr Gillen had told Dr Ewer that he had not experienced any stressors during his military service. The advocate implied that Mr Gillen learned of some reports of a sampan incident through his discussion with Mr Rushworth, leading up to their intake reunion in about July 2005 and that this sequence of events also explains why no mention was made of a sampan incident in Mr Gillen’s claim form. The Commission’s advocate went on to suggest that Mr Gillen had probably been advised that his claim would not be successful by simply relying upon feelings of guilt from taking people to and from Vietnam, and that he consequently decided to say that he had seen the same sampan incident discussed with by Mr Rushworth and that Mr Gillen and Mr Rushworth had decided to give evidence for each other in relation to each others claim for benefits.
33. Mr Gillen said that he had been able to block the sampan incident out of his mind for many years and that this explains why no earlier record or evidence of Mr Gillen recalling the sampan incident exists. He said that it was not until his discussion with Mr Rushworth, leading up to the intake reunion in 2005, that he thought someone else may have seen the same sampan incident.
34. The Tribunal, through its experience, understands that veterans are often reluctant to discuss traumatic incidents and sometimes try to block them from their minds. The Tribunal has also considered s 119 of the VE Act dealing with the difficulties which often lie in ascertaining facts of events which occurred many years past and which may be otherwise unreported to authorities. The Tribunal places little weight on the absence of any Naval record of a sampan incident. The Tribunal is however concerned about some aspects of Mr Gillen’s evidence. This concern is inescapable. The histories provided by Mr Gillen to psychiatrists Dr Ewer and Dr Short are irreconcilable. Mr Gillen has said that he decided to deliberately mislead Dr Ewer because he did not feel comfortable with that doctor and in that doctor’s office. It is clear that Mr Gillen decided to mislead one of the doctors. It falls to this Tribunal to determine the issue of diagnosis on the balance of probabilities. The Tribunal must ask itself which of the histories provided to the two doctors is more likely to be accurate.
35. The discrepancy between the expert psychiatric opinion evidence flows primarily from the different histories provided by Mr Gillen. Mr Gillen said that he made a decision to deny the existence of any stressors to Dr Ewer because he did not feel comfortable with the decor of the office and felt that Dr Ewer was not interested in him. He also indicated that he “probably” gestured to his wife to also remain quiet about the incident.
36. The Tribunal considers it unlikely that Mr Gillen would have discussed the sampan incident with either Mr Hay or Mr Lee and then not recall which of these men had been the first recipient of this important information, or even whether that information had been conveyed by telephone or in person. The Tribunal also considers it unlikely that Mr Gillen, with full knowledge of the significance of the sampan incident and his reason for attending Dr Ewer, made a decision not to tell Dr Ewer of the sampan incident. Particularly unlikely in the light of the fact that his asserted lack of comfort with Dr Ewer did not prevent him telling that doctor about his feelings of remorse or regret at having conveyed other servicemen to and from Vietnam.
37. In relation to the incident itself, Mr Gillen does not provide any explanation as to why three other people had provided accounts of a sampan incident which differed greatly from his own (Eddes, Hunt and Besomo). Mr Gillen suggested that there must have been different sampan incidents as the patrol vessel he had seen had been a much smaller patrol vessel than the Swift class vessel reported by the ship’s watch, after being observed through binoculars (Captain Hunt). The Tribunal prefers the evidence of the two officers (Eddes and Hunt) experienced in observing incidents at sea, to the evidence of both Mr Rushworth and Mr Gillen who had both described a smaller US patrol boat.
38. The Tribunal has had to consider whether, for the purposes of diagnosis, it was more likely than not that Mr Gillen observed the sampan incident as he described or at all. While the Tribunal acknowledges that distances at sea may be harder to determine than on land and that memories cloud over the passage of many years, nevertheless the Tribunal considers it is more likely than not that Mr Gillen did not observe the occupants of a sampan being machine-gunned. Consequently, Mr Gillen did not experience this form of what would be a severe stressor.
39. The psychiatrists’ reports of course reflect the different histories provided by Mr Gillen to each. As the Tribunal believes it more likely than not that the history of an absence of stressors provided to Dr Ewer was more likely to be accurate, the Tribunal prefers Dr Ewer’s reported opinion and consequently finds, on the balance of probabilities, that Mr Gillen is not suffering from PTSD or any other condition which would answer his claim for acceptance of “emotional problems”. In reaching this decision, the Tribunal has also considered that although Mr Gillen did experience the discharge of scare charges his experience could not be described as a severe stressor as described in the diagnostic criteria for PTSD and in the relevant SoP for that condition. The Tribunal considers that Mr Gillen’s experience of scare charges does not cause it to prefer any aspect of Dr Short’s report to that of Dr Ewer.
40. Because the Tribunal has found it more likely than not that Mr Gillen falsified significant aspects of the history he provided to Dr Short and consequently, preferring the expert opinion evidence of Dr Ewer, found that Mr Gillen was not suffering a psychiatric condition which would answer his claim for “emotional disorder”, the Tribunal did not embark on the Deledio steps in relation to Mr Gillen’s claim for acceptance of “emotional behaviour”, later suggested to be PTSD.
41. Had the Tribunal found that Mr Gillen does suffer from a condition which would appropriately answer his claim for emotional problems, either PTSD or, although it was not argued before us, alcohol dependence, the Tribunal would find the relevant connection with war service to exist through the suggested stressor of the sampan incident. That incident would meet the template suggested at step 3 of Deledio and the Tribunal would not be satisfied beyond reasonable doubt at step 4 that such a nexus did not exist. The asserted connection with service through scare charges would not in the Tribunal’s view match the template at step 3 of Deledio. The Tribunal would find the necessary objective element absent in the circumstances of this case, including Mr Gillen’s indication of uncertainty as to whether he ever heard scare charges explode while he was below deck and the advice Mr Gillen and other members of the ship’s company were given in relation to events which would occur while in Vung Tau Harbour, including scare charges being used as a protective measure. If the Tribunal were wrong in this view, and if the Tribunal were consequently required to consider step 4 of Deledio, the Tribunal would find the claim based on scare charges to fail at this stage as the Tribunal would be satisfied beyond reasonable doubt that Mr Gillen did not experience, witness or was confronted with an event which involved actual or threat of death or serious injury or such an event which might evoke intense fear, helplessness or horror upon hearing scare charges.
decision
42. In light of the abovementioned circumstances, the Tribunal sets aside the decision under review in relation to bilateral sensorineural hearing loss and tinnitus and remits the matter for assessment. In relation to Mr Gillen’s claim for acceptance of “emotional behaviour”, the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ............J Coulthard...........................................
AssociateDates of Hearing 8/9 February 2007
Date of Decision 24 April 2007
Counsel for the Applicant Mr Steven Churches
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr Adrian Crowe (DVA)
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