GRAEME MCDONALD and REPATRIATION COMMISSION
[2012] AATA 344
•7 June 2012
[2012] AATA 344
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4499
Re
GRAEME MCDONALD
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 7 June 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statement of Principles – Appropriate diagnosis of psychiatric condition – Reasonable hypothesis of relevant relationship to service raised for posttraumatic stress disorder – Hypothesis not disproved beyond reasonable doubt – Posttraumatic stress disorder war-caused – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 37, 120, 120A, 177, 196B
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Re Glasby and Repatriation Commission [2008] AATA 664
Hunter v Repatriation Commission [2010] FCA 145; (2010) 114 ALD 89
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 134 FCR 392; (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 131 FCR 473; (2003) 75 ALD 420; [2003] FCAFC 160REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 June 2012
BACKGROUND
On 6 May 2011, Graeme McDonald, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “posttraumatic stress disorder”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
On 3 June 2011, the respondent determined that Mr McDonald’s posttraumatic stress disorder was not related to his service. On 5 October 2011, the Veterans’ Review Board (“the Board”) affirmed the decision.
ISSUE AND SERVICE
Mr McDonald served in the Army from November 1968 until November 1971 and this included a period of eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 16 September 1970 until 1 October 1970. He also served a period of defence service as well as another period of operational service which are not relevant to this claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
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.
[1] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.
The application of that provision is affected by the terms of ss 120(3) and 120A of the Act, which require that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority (“RMA”).
SUBMISSIONS
There is no dispute between the parties that Mr McDonald was a percussionist member of the Northern Command Band (“the Band”) while performing a concert in the Flags Area at Vung Tau on 27 September 1970 during which a shot was fired within the assembled concert audience. Mr Matt Black, for Mr McDonald, submitted that, as a result of the gunshot, which was heard by Mr McDonald, a person was killed and the Band almost immediately ceased playing and took steps to leave the area. While Mr Black conceded that Mr McDonald did not see the body of the person killed, he submitted that the incident constituted a category 1A and/or a category 1B stressor as set out in Instrument No. 5 of 2008, the relevant SoP for posttraumatic stress disorder. He submitted that it was significant that Mr McDonald had undergone limited military training; that he had been apprehensive about the circumstances in South Vietnam where he had been for several days only; and that he feared for his life when he heard the gunshot. For the respondent, Mr Bruce Williams submitted that there was no evidence of a person being killed as a result of the gunshot and that Mr McDonald did not experience a category 1A or a category 1B stressor.
EVIDENCE
Mr McDonald
After his enlistment, Mr McDonald completed 11 weeks of basic training and, from then until he went to South Vietnam, he underwent no further military training. Rather, as a musician, he was involved in Band duties in parades and concerts. He joined the Band, of some forty members, for the two week tour of South Vietnam as a percussionist. During this tour they played in many concerts and travelled from venue to venue with an armed Land Rover escort. The Band’s transport medium varied from open truck, to covered truck, and to buses. Mr McDonald described feelings of apprehension at being so vulnerable and exposed to possible enemy contact, especially in the open truck because the Band members were in army uniforms and unarmed. Mr McDonald said that one of the billets in which they stayed was subjected to mortar fire on the day after they left and he also recalled seeing blood stains on bedding in another place. He also felt exposed during concerts because of rumours he had heard about the prospect of someone in the audience “taking a shot” at them. This sense of apprehension was heightened because of the limited degree of combat training he had undergone.
The Vung Tau concert was in the “open air” in the Flags Area. The Band was seated in a semicircular formation with the Band-master in the centre, facing the Band members. Seating was arranged in four tiers with the percussionists at the highest level. Clarinet and flute players were placed in the front with saxophone players and brass instrument players, respectively, behind them. During the concert, Mr McDonald heard a gunshot and saw smoke, accompanied by a “big crowd reaction” involving “screaming”. He described his reaction to the shooting as saying to his mate: “What was that? What’s going on?”. He then heard that someone had been shot. Mr McDonald said that Band-master kept the Band playing for a short period but some of the Band members reacted by calling on the Band to stop playing. In his evidence to the Board, Mr McDonald estimated that the Band played on for about 15 minutes before dispersing and packing their instruments. Mr McDonald had assumed that someone had been shot though he did not see a body. He learned subsequently that there had been a killing. Mr McDonald felt that his life was threatened and he described the experience making him wish he was “somewhere else” and as “pretty terrifying” because he and the other Band members were so exposed and unarmed.
In his statement, dated 20 September 2009, Mr McDonald wrote that “a suspected [Viet Cong] was shot in front of the Band” by the “white mice”, the name for local policemen. He heard “at least one loud bang” and “saw some wispy smoke”, heard “screams” and “witnessed agitated crowd movement”. He wrote that the word went around that someone had been shot and killed and that, from that point on, he felt very tense, exposed and helpless. He wrote that the Band continued to play for a period but, shortly afterwards, the members began to pack up their gear. In a subsequent statement, he added that he did not see the body of the man shot and he understood it was moved very quickly.
Medical evidence
Psychiatrist, Dr Bob Anderson, completed a report on 24 November 2008. His opinion was that Mr McDonald suffered from posttraumatic stress disorder due to the severe stressors he experienced in South Vietnam. He referred to the mortaring of the Band’s billet after they left it and travelling on roads which were subject to mines or sniper fire. He also referred to the Vung Tau concert, describing Mr McDonald as being “shocked when someone was shot in front of them by a South Vietnamese policeman”. He also noted that, at the Vung Tau concert, “a Viet Cong sympathiser came out of hiding and was shot by a White Mouse”. He noted that Mr McDonald “heard the shot and knew someone had been shot”.
Other evidence
The respondent utilised Mr Langford, from Writeway Research Service Pty Ltd (“Writeway”), to obtain background information about the events surrounding the Band's performance on 27 September 1970. He served in Vung Tau in 1967/1968. Mr Langford described the Flags Area as a place where buses and trucks dropped off and picked up Australian servicemen on local leave. For that reason, he said, Australian Military Police would have been vitally interested and aware of all security incidents in the area. His research of the AFV Provost Company reports at the time revealed no reference to the incident. He spoke with former Warrant Officer I. Laurie who was the Military Police sergeant with the special investigation branch of the Provost unit at Vung Tau when the Band performed. Mr Laurie told him that there was no record of the shooting incident.
Mr Langford researched relevant editions of the “Saigon Post” in the National Library in Canberra as well as editions of “Army News” and found no reference to the shooting incident at Vung Tau. He also researched the database “Enemy Grenade, Mortar and Rocket Attacks Against Vung Tau and Other Security Incidents 1964-1972” and found no reference to the shooting incident. His opinion was that, if a Viet Cong had been shot in Vung Tau, it would have been recorded therein.
Mr Langford also accessed Minutes, dated 2 October 1970, of the Commander in which the following reference is made to the Vung Tau concert:
I thanked the Chief of Police for his assistance with the N Comd Band display in the Flags Area last Sunday. The shot that was fired during the proceedings was in the air by a National CID man who was chasing two young cowboy thieves.
Mr Langford's report also included the following observations by former Army Warrant Officer A. McAulay who was a Vietnamese language interpreter with the AFV Provost Unit based at Vung Tau in September 1970:
Looked at my diary-record of September 1970 and do not even mention the Band. I most certainly would have done so if there had been any violence involving local crooks or Vietcong. The Band must have been a complete ‘non-event’ as far as security or note-worthy activity was concerned. Also e-mailed S/Sgt Keith Innes, i/c of the counter-intelligence section of 1 Div Int, who has no memory of the Band incident.
Mr Langford spoke with several Band members and obtained statements from some of them. These included Mr I. McLean and Mr W. McIntyre who also gave evidence. Mr McLean was a percussionist in the Band at the Vung Tau concert. He had no knowledge of the shooting incident and no recollection of an occasion where the Band broke up in the manner described by Mr McDonald but conceded that it may have happened. In cross examination, he said he had performed in over 10,000 concerts over the years, including all of the concerts by the Band in South Vietnam, and had no specific recollection of one at Vung Tau. Mr McIntyre was a cornet player in the Band at the Flags Area concert but could not recall the shooting or the Band's early dispersal. He conceded that, if he was actually playing at the time of the gun-shot, he may not have heard it. He said that the Band played in lots of concerts and that it was possible that it broke up quickly without his recalling it.
Barry Rodgers completed a statement on 11 May 2012. He played the clarinet in the Band at Vung Tau and was placed on the first tier of seating to the right of the Band master. In his evidence, he said that he recalled a series of gunshots in the audience at the concert and saw a person fall to the ground, some ten to fifteen metres from the Band, with “white mice” standing over the body and subsequently dragging it away. He described “great alarm” in the area. He heard a Band member call out that they should stop playing and he recalled that, in about 30 seconds, the Band began to disperse. Mr Rodgers said that, if a particular Bandsman was playing his instrument, rather than being in a “bars rest” segment,[2] he may not have heard the gunshots. He also said that, because of the tiered nature of the seating, some members may have had their field of vision blocked such that they were prevented from seeing the body.
[2] A period when particular instruments are not being played.
Brian Keating gave evidence and completed an undated statement. He played the saxophone at the Vung Tau concert and recalled hearing a whistle followed by a gunshot and seeing a body on the ground surrounded by “white mice”. He described a feeling of horror as he felt the Band was a vulnerable target. He estimated that it took one to three minutes for the Band to start breaking up as the Bandmaster had motioned them to keep playing. He described a sense of “panic” associated with the dispersal of the Band.
STATEMENT OF PRINCIPLES AND DIAGNOSIS
Instrument No. 5 of 2008, the SoP for posttraumatic stress disorder, lists six diagnostic criteria. The first of these is:
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and…
Prior to the Federal Court decision of Justice Gray in Bawden v Repatriation Commission (“Bawden”),[3] cases relating to posttraumatic stress disorder were decided on the basis that, if the decision maker was reasonably satisfied that the traumatic event did not occur, a diagnosis of that condition could not be made. This was based on the apparent effect of Gray J's decision in Mines v Repatriation Commission (“Mines”).[4] In Bawden, his Honour determined that this was not the correct interpretation of Mines in that matters of causation, where operational service was applicable, remained to be determined by the more favourable standard of proof in s 120(3) of the Act. Further, His Honour held in Bawden that the decision-maker should decide on the balance of probabilities what symptoms the veteran is suffering from, and whether they constitute a disease, and whether the collection of symptoms found to exist would lead to a diagnosis of posttraumatic stress disorder if those symptoms resulted from the alleged traumatic event without determining conclusively whether the alleged causal event occurred.[5] His Honour held that the further question of causation was to be determined by following the process in s 120(3) of the Act which incorporates the four-step process set out in Repatriation Commission v Deledio (“Deledio”).[6]
[3] [2012] FCA 345.
[4] (2004) 86 ALD 62.
[5] [2012] FCA 345 at [23].
[6] (1998) 83 FCR 82 at 92; (1998) 49 ALD 193; (1998) 27 AAR 144.
Dr Anderson, psychiatrist, was of the opinion is that Mr McDonald satisfies the diagnostic criteria for posttraumatic stress disorder. He included, in the three stressful experiences described to him by Mr McDonald, a version of the shooting incident at the Vung Tau concert. On that opinion as formulated on that basis, I am reasonably satisfied that a diagnosis of posttraumatic stress disorder may be applied to Mr McDonald. Consideration must be given to whether the condition has arisen out of or is attributable to his operational service under s 9(1)(b) of the Act.
PRINCIPLES OF CAUSATION
In Deledio, the Federal Court set out a four-step procedure for considering issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that a shooting incident as described by Mr McDonald meets that requirement.
The second of the four Deledio steps requires identification of the relevant SoP determined by the RMA under ss 196B(2) or (11) of the Act. It is not disputed that this is Instrument No. 5 of 2008.
The third Deledio step does not involve fact-finding but requires a consideration of the hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the SoP. The factors and associated definitions in Instruments No. 5 of 2008 read:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
“a category 1B stressor” means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties; …
“an eyewitness” means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;…
If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
REASONABLENESS OF THE HYPOTHESIS
The stressor
A category 1A stressor and a category 1B stressor are each defined to mean “a severe traumatic event”. In each case, a series of events which will qualify is particularised and one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A and/or category 1B stressor to be raised.[7]
[7] See Re Glasby and Repatriation Commission [2008] AATA 664.
There is no material before me which points to a category 1B stressor. Mr McDonald's evidence was that he heard a gunshot but did not see the killing or a body of a victim thereof. That situation does not point to his observing of an incident that involved either killing first hand, or the requirements of the definition of an “eyewitness”. Accordingly, his involvement is not consistent with the template of a category 1B stressor in the SoP.
There is no material before me which points to events (b) or (c) for a category 1A stressor. No submissions were made in relation to those components of the definition. That leaves for consideration event (a) for a category 1A stressor, which is “experiencing a life-threatening event”.
In Hunter v Repatriation Commission (“Hunter”),[8] Perram J referred to the terms of a category 1A stressor as requiring a “claimant to have come, in effect, face to face with some species of peril”. His Honour noted that this was different from requirements in earlier SoPs which could be satisfied if a “claimant were ‘confronted’ with a peril” which included “being confronted ‘in the mind’”.[9] Those comments were made obiter dicta as the Court was not dealing specifically with the concept of a category 1A stressor. However, his Honour's description accords with the clear wording of the definition and requires an objective analysis. Nevertheless, consideration must be given to Border v Repatriation Commission (No 2) ("Border"),[10] where Reeves J was concerned with the definition of a category 1A stressor in Instrument No. 5 of 2008.
[8] [2010] FCA 145; (2010) 114 ALD 89 at 94.
[9] Hunter v Repatriation Commission (2010) 114 ALD 89; referring to Woodward v Repatriation Commission (2003) 131 FCR 473 at 495.
[10] (2010) 191 FCR 163; [2010] FCA 1430.
In Border, Reeves J concluded that, for a category 1A stressor, the event alleged must have actually occurred; that paragraph (a) incorporates the experience of the veteran; but that the trauma, stress or anxiety were not relevant for paragraphs (b) and (c). Accordingly, for paragraphs (b) and (c), there was no subjective element involved in assessing the reasonableness of an hypothesis. As for paragraph (a), his Honour posed the following question (at [52]) and answer (at [67]):
[52.] But these observations obviously may not apply to the event described in subpara (a): "experiencing a life-threatening event". On its face, that event involves subjective factors. The question then is: How, and to what extent, should the Tribunal examine the feelings evoked in the veteran experiencing that event, to determine whether the event was life-threatening within that?
…
67. … [T]he answer to the question posed … in relation to the event described in subpara (a): "experiencing a life-threatening event" is this. The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran's perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran's conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
Mr McDonald's evidence points to his hearing a shot fired and, subjectively, fearing a threat of death. In assessing the reasonableness of that response, relevant matters include his references in evidence to concerns he had from the following matters: his limited military training; his sense of apprehension arising from several days in South Vietnam, including being unarmed in open transport vehicles; and his sense of vulnerability at performing in the open space of the Vung Tau flags area. While the evidence may point to the shooting as being in relation to a civilian matter which did not result in a killing and was not an actual threat to Mr McDonald, such a consideration, in reliance on Border, is irrelevant to the assessment of the reasonableness of Mr McDonald's perception. Judged objectively, from the point of view of a reasonable person in the position of, and with the concerns (as detailed above) of, Mr McDonald, his perception of the situation was capable of conveying the threat of death and this points to the perception being reasonable. This process is consistent with the manner set out in Border which also requires that the assessment not be conducted in an unduly restrictive manner. As noted above, the evidence also points to Mr McDonald's subjective belief that a life threatening event occurred.
In respect of the third step of the Deledio analysis, the hypothesis that Mr McDonald experienced a life-threatening event at the Vung Tau concert is a reasonable one.
ARE THE CONDITIONS WAR-CAUSED?
Finding a reasonable hypothesis of a relationship between posttraumatic stress disorder and Mr McDonald's service means there is material before me that is consistent with the template of the SoP. It does not mean that the claimed condition is war-caused. That issue must now be considered at the fourth Deledio step. As required by s 120(1) the claim by Mr McDonald will succeed unless I am satisfied beyond reasonable doubt that the claimed condition is not war-caused.
Important to Mr McDonald's claim is the diagnosis of posttraumatic stress disorder. This was made by Dr Anderson. I have concerns at the opinion expressed by him. Clearly, his diagnosis of Mr McDonald was reliant on the information provided to him by Mr McDonald. Dr Anderson recorded this as comprising three stressors: the mortaring of the Band's billet after they left it; travelling on roads which were subject to mines or sniper fire; and the shooting at the Vung Tau concert. Quite properly, Mr Black has not relied on the first two of those stressors as being category 1A or category 1B stressors. Dr Anderson's reference to the Vung Tau concert was in terms which do not match the evidence adduced. He described Mr McDonald as being "shocked when someone was shot in front of them by a South Vietnamese policeman", that "a Viet Cong sympathiser came out of hiding and was shot by a white mouse" and that Mr McDonald "heard the shot and knew someone had been shot". I am satisfied beyond reasonable doubt that the incident observed by Mr McDonald is not reflected in the description recorded by Dr Anderson.
There is conflicting evidence in relation to the shooting event at the Vung Tau concert. Mr Langford's research of newspapers and records revealed no reference to the shooting. That was also the case with the records of Mr Macaulay and of Mr Laurie. Nonetheless, both Mr Rodgers and Mr Keating supported Mr McDonald's evidence of a shooting and this is confirmed by the minutes of the Commander. Mr Macaulay and Mr Laurie, as military police, may have focussed on non-civilian incidents in the area. In any event, I am satisfied beyond reasonable doubt that there was a shooting and that this involved civilian police and not Viet Cong.
Mr Rodgers and Mr Keating gave evidence that they saw a body on the ground. I have noted that their observations were made in an environment, described by Mr McDonald, Mr Rodgers and Mr Keating as comprising agitated crowd movement, screaming, alarm and sense of panic. However, the presence of a body is not consistent with the records accessed by Mr Langford or the Commander's record of the shooting which was that the shot was fired in the air. Mr Rodgers and Mr Keating described a rapid break-up of the Band after the gunshot. However, that was not the recollection of Mr McLean and Mr McIntyre and their evidence is consistent with Mr McDonald's observation that the band continued to play for some 15 minutes. While Mr McDonald's evidence was that he felt threatened on hearing the shot fired, in his statement of 20 September 2011, he wrote that he felt "tense, exposed and helpless" after he heard that someone had been shot and killed. I am satisfied beyond reasonable doubt that there was no killing.
Mr Langford's opinion, based on his research and knowledge of Vung Tau, was that a shot was fired at the Vung Tau concert; that no one was killed; that the shot was fired by local police; and that it was a civil matter only which did not involve any Viet Cong. I accept that as a correct version of what happened at the Vung Tau concert. That being so, I am satisfied beyond reasonable doubt that no one was shot in front of Mr McDonald and that the shooting incident did not involve Viet Cong.
While I accept that Mr McDonald heard the shot fired at the Vung Tau concert, I am satisfied beyond reasonable doubt that he did not come face to face with an actual peril or threat thereof when the shot was fired at the Vung Tau concert. Further, I am satisfied beyond a reasonable doubt that the gunshot was not a life-threatening event. I am satisfied beyond reasonable doubt that Mr McDonald did not experience a category 1A or a category 1B stressor as those terms are used in SoP No. 5 of 2008, prior to the clinical onset of posttraumatic stress disorder. Accordingly, I am satisfied beyond reasonable doubt that his posttraumatic stress disorder is not war caused in accordance with s 9(1)(b) of the Act.
DECISION
The Tribunal affirms the decision under review.
39. I certify that the preceding 38 (thirty eight) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 7 June 2012
Date(s) of hearing 18 May 2012 Counsel for the applicant Matt Black
Representative for the respondent Bruce Williams
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