Grant and Repatriation Commission
[2007] AATA 1847
•10 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1847
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200400253
VETERANS' APPEALS DIVISION ) Re ROBERT HUGH GRANT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Dr E T Eriksen (Member)Date10 October 2007
PlaceAdelaide
Decision 1. The Tribunal sets aside the decision under review and substitutes a new decision that Mr Grant suffers from Post Traumatic Stress Disorder and Depressive Disorder and that these conditions are war-caused with effect from 6 August 2000.
2. The Tribunal remits the issue of assessment following the acceptance of these conditions to the Repatriation Commission for further consideration...............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – diagnosis – Post Traumatic Stress Disorder – Depressive Disorder – operational service – self-immolation of monk – grenade attack – practice and procedure – admission of documentary evidence refused – decision set aside
Veterans’ Entitlements Act 1986
The Privacy Act 1988, s 13
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrne v Repatriation Commission (1993) 177 CLR 564Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 17 of 2007REASONS FOR DECISION
10 October 2007 Mr J G Short (Member)
Dr E T Eriksen (Member)1. Mr Grant sought review of a decision of the Repatriation Commission (the Commission) which refused his claim for acceptance of Post Traumatic Stress Disorder (“PTSD”) as war-caused. The decision was affirmed by the Veterans’ Review Board (“the VRB”) on 19 April 2004. Mr Grant lodged an appeal to this Tribunal on 30 July 2004.
2. The appeal proceeded before a Tribunal including Member Mr S J Ellis. Mr Ellis became unavailable for Tribunal duties on the third and final day of hearing. Having noted the consent of the parties, the President of the Tribunal reconstituted the Tribunal so that it then comprised the remaining members, Mr J G Short and Dr E T Eriksen.
3. Mr Grant served in the Australian Army from 8 February 1968 until 23 December 1970. His eligible service, which was also operational service, was from 22 January 1970 until 8 October 1970 in Vietnam.
4. Mr Grant claimed that he suffered from PTSD and that this condition was caused by severe stressors, experienced during Mr Grant’s service in Vietnam. It was contended that Mr Grant’s circumstances matched factor 5(a) of Statement of Principles (“SoP”) Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, that is, “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”. Mr Grant also contended that he has Depressive Disorder and that factor 6(g) of Instrument No 17 of 2007 relating to that condition is satisfied, that is, “having a clinically significant psychiatric condition within two years before the clinical onset of depressive disorder”. PTSD is a significant psychiatric condition and it was agreed between the parties that if Mr Grant were found to have PTSD with a clinical onset prior to the clinical onset of Depressive Disorder, and if his PTSD could be relevantly related to his war service, then it would follow that both conditions should be determined to be war-caused.
evidence of mr grant
5. Mr Grant said that he undertook two years of national service which included approximately nine months’ service in Vietnam. In Vietnam Mr Grant was initially posted to small ships, serving on AV Clive Steele. However, he contracted glandular fever and was hospitalised and on discharge from hospital transferred to 110 Signal Squadron in Saigon. Mr Grant said that he was in Saigon for six months helping to maintain the generators at the Free World Centre. Mr Grant said that on one side of the Free World Centre was a structure known as the Cambodian Buddhist monastery. He said that there were regular disputes between Cambodians from the monastery and the general Vietnamese population. He said that both the Vietnamese and the Cambodians were hostile to the allied forces. He said that he experienced a number of stressful incidents while he was serving in Saigon.
self immolation of monk
6. Mr Grant said that on one occasion at about 5.00pm, after most of the other soldiers had been stood down, he was on picket duty when he saw a group of people outside the Cambodian monastery. He then saw a great burst of flames. He said the clothing of one of the people caught fire and that other people were standing around watching. Mr Grant said that he could not understand why someone did not try to put out the flames. Mr Grant said that he spoke to a corporal about the matter. He said that he was told that it was a matter for the civilian authorities. He said that he had been distressed and upset by this incident. He said that this incident occurred approximately 30 metres from him.
gunfire to generator shed
7. Mr Grant said that on approximately five occasions during the six months he worked at the generator shed in the Free World Centre, he saw evidence of gunfire into the area surrounding that shed. He said that gunfire was never experienced during the day, but sometimes was at night. He said that he witnessed gunfire on two occasions and saw evidence of gunfire on three other occasions. The evidence of gunfire was usually in the form of holes in 44 gallon diesel drums which were stored around the generator shed. He said that on these occasions he simply shifted the drums and that standard procedure was not to get involved.
shooting a cambodian monk
8. Mr Grant said that on one occasion he heard a “pinging” sound and walked outside of the generator shed to investigate. He noticed that a diesel drum was leaking. This was about 8.30-9.00pm. The area was well lit by flood lighting. Mr Grant said that he wanted to return to the generator shed to ring the corporal to report the incident, however he was concerned about having to cross an open area to get back into the shed. He said he discharged his rifle in the direction of people congregating in an area of the Cambodian monastery. He heard a thud and shouting and screaming. He then saw people dragging a person to the rear of the building. He assumed that he had shot someone. He saw that person fall or "crumple". Mr Grant initially said that he had immediately left the area to report the incident to a corporal, but later said that he must have remained for a time in order to be able to see a crowd dragging an apparently wounded person at ground level. The person had apparently been shot while standing on an upper or second level of the monastery.
9. Mr Grant said that although he reported the incident to a corporal, he never heard anything more about it. He said that he expected to hear from the commanding officer, but never did. He spoke to the corporal the following day and was told that the matter had been passed on. Mr Grant said that he was very disturbed by the incident. In his written statement, Mr Grant indicated that this incident occurred in the early evening, but before the light had failed. He wrote that he was able to see about six people standing on a veranda, or similar structure, at the back of the monastery, and that this position gave a line of sight into the area around the generator buildings. Only one of the group was firing. Mr Grant wrote that he moved the oil drums and that as he did so, this person continued firing. In that statement, Mr Grant indicated that he fired his SL rifle in the air, but that it did not stop the group. He noticed a person appearing to point a weapon at him. Mr Grant said that he then discharged half a dozen shots directly at the people and that one of them appeared to fall heavily. He wrote that he had always assumed that he had either injured or killed the person.
10. In cross-examination, Mr Grant said that at the time he fired his weapon he was standing approximately three metres behind a barricade which consisted of empty 44 gallon drums, at least two high. It was put to Mr Grant that he would find it difficult to see over such a barricade. Mr Grant explained that the person he shot was standing at the end of the monastery building. He said he could not recall if it was a two storey building. He said that when he discharged his weapon he was not looking along the weapon’s barrel. He was just looking in the general direction of the monastery. Mr Grant initially said that he had panicked after the shooting and left straight away to see the corporal. He later said that he must have stayed for a time as he saw the person being dragged at ground level. Mr Grant explained that he told the corporal that he had had a problem with the Buddhists and that he had discharged his weapon and was sure he had hit someone. The corporal told him that he would speak to the sergeant. Mr Grant said that he then returned to check the generators and the fuel lines and that all was okay. Mr Grant said that the next morning he replenished his magazine from bullets located in a drawer in the generator room. He said that the first people he had told about this incident other than the corporal were some members of the small ship squadron he met in about 1971. He said that he has never told his wife or children of this or any of the other stressful incidents he experienced in Vietnam. He said that this shooting of a Cambodian monk was the most traumatic of the incidents he experienced in Vietnam. Nothing else in his life had been as traumatic. He said that he had experienced frequent nightmares involving this incident over the last 37 years.
snakes into compound
11. Mr Grant said that on some occasions he saw Vietnamese people tip snakes into the Free World Centre. He said that the Australians would call the Vietnamese guard hut and that the Vietnamese would come and catch the snakes. He said that they were very good at it. In his written statement Mr Grant indicated that he saw people climb the wire with baskets of snakes on at least two occasions. He indicated that he did not know what sort of snakes they were and did not stop to ask. He indicated that he had dreamed of snakes, but that the incidents where people died had been his major problem.
hand grenades
12. Mr Grant explained that he was billeted at a hotel in Saigon and that he travelled by truck to perform his duties at the Free World Centre. He said that he would usually sit facing outwards on seats which ran down the centre of the trucks. He said that he and other workers were armed with their safety catch on. It was understood that if they were attacked they were not to engage the enemy. Mr Grant said that he recalls one occasion early in his tour of Vietnam when two men threw hand grenades towards the back of the truck. The truck sped away and there was some screaming. He never heard anything further about this incident. He did not report the incident, but thought the drivers may have as it was their job to do so. In his written statement, Mr Grant indicated that there were two males running behind the truck and that they threw hand grenades at the truck which fell short. He heard the explosions behind the truck. He indicated that it was his belief that there must have been some injuries to civilians as they were passing a school at the time. Mr Grant indicated that he heard two grenade explosions and that other people in the truck had yelled out “grenades.”
motor bike accident
13. Mr Grant said that on another occasion when he was travelling in a truck to the Free World Centre, and as the truck was turning into that Centre, a speeding motor cyclist tried to pass, but went under the truck. Mr Grant said that people in the street were angry and shouting. The Vietnamese soldiers in the guardhouse at the front of the Free World Centre attended the accident. Mr Grant looked back and saw a person lying on the ground with a bike on top of him. He did not know whether the person was dead or alive. He said that he did not report the incident and that he was pretty upset about it at the time as it just seemed to be a shameful loss of life.
accident with a korean officer’s vehicle
14. Mr Grant said that on another occasion he was in a truck which ran a red light and collided with a black Ford. The Ford was part of a convoy of three Korean vehicles. Again Mr Grant’s truck did not stop. Two Korean vehicles followed them back to the compound. Mr Grant was the last person off the truck and was confronted by the angry Koreans. He said that a short time later an Australian officer emerged from the compound. He said that while alone he had felt quite threatened by the two Korean soldiers and one officer. Mr Grant said that at a later parade, Australians had been reprimanded for laughing at a Korean officer.
return to australia
15. Mr Grant said that after being discharged from the Army he returned to work as an electrician and found employment with the Postmaster General’s Office, later re-named Telecom. Mr Grant said that he married on 8 May 1976 and has three children. He said that there were family problems and in the 1980s he consulted the Vietnam Veterans’ Counselling Service (“the VVCS”). At that time he was difficult to live with, aggressive and found it hard to communicate. Mr Grant said that he had been involved in a number of disputes with other people, including litigation with a local council, and in or about 1985, with Telecom. Mr Grant said that he has experienced nightmares of events in Vietnam since the late 1970s. He said that he now also has intrusive thoughts of Vietnam. It was at the VVCS that he first consulted psychiatrist Dr Peter Furze. He later saw Dr Furze in a private capacity. Mr Grant said that he now avoids Anzac Day and does not like to be involved with the ex-service community as it just takes him back to events in Vietnam.
psychiatric history
16. Mr Grant’s treating psychiatrist of many years, Dr Peter Furze, provided evidence that he initially diagnosed major depression from about 1985, precipitated in part by Mr Grant’s legal disputes, at that time with Telecom, in a background of obsessional personality traits. Dr Furze said that it was not until about the year 2000 that Mr Grant told him of traumatic incidents experienced in Vietnam. Mr Grant was asked in cross-examination, why he had not previously associated his psychiatric problems with his Vietnam experiences and reported those to Dr Furze in the light of the flashbacks and nightmares had been having for some 37 years. Mr Grant said that he could not answer that question. He denied that he was lying about shooting a Cambodian monk.
17. Mr Grant was asked why he had told Dr Furze about his experiences during his initial months in Vietnam on small ships but not mentioned any of the stressors he now says occurred during his period of service at the Free World Centre. Mr Grant said that he thought this was due to avoidance. He said that in consulting Dr Furze he made a decision not to report any stressors because they were too stressful. Mr Grant confirmed that he has continued to see Dr Furze on a regular basis since about 1990, sometimes weekly, sometimes monthly, and that it was not until about the year 2000 that he told Dr Furze of any of the incidents which he now considered to be stressors which have caused his PTSD.
18. Mr Grant was referred to an admission summary from the Repatriation General Hospital concerning an admission in about 1991. The record indicates that Dr Ben-Tovim and/or perhaps Dr Fraser, had at that stage recorded a diagnosis of PTSD. The summary of the case history relating to this admission (T6/31), records a diagnosis of major depression and PTSD. The same document refers to other active problems as chronic back and neck pain and obsessive personality traits. Despite recording diagnoses, including PTSD, Dr Furze said that Dr Ben-Tovim had never contacted him to advise that this diagnosis had been made, or the basis upon which it had been made. Mr Grant said that when he earlier stated that he had not told anyone about the stressors he experienced in Vietnam until telling Dr Furze in 2000, he had forgotten telling Dr Ben-Tovim of these incidents in about 1971.
19. Mr Grant said that he recalls telling Dr Furze of dreams which included a look of despair on the faces of people (Dr Furze’s report of 3 October 1991). Mr Grant said that in 1996, he was still seeing Dr Furze regularly, but still failing to tell him about any Saigon experiences.
20. In reference to his 1996 claim for acceptance of depression, Mr Grant said that when he lodged this claim he was still having nightmares of his Saigon experiences and that these experiences were the basis upon which he made his claim. He said however that he decided not to mention the experience of shooting a monk at a monastery at that time and his failure to mention this incident was one of the reasons he did not appeal the rejection of the 1996 claim. Mr Grant said that when lodging the 1996 claim form (T8/165), he referred to the source of his difficulties as “confined spaces subject to enemy attact [sic] …”. Mr Grant explained that he was in fact referring to confined spaces between buildings at the Free World Centre and on the deck of small ships. Mr Grant agreed that it may be correct that he only made one voyage on small ships. Mr Grant repeated that it was not until about 1999 or 2000 that he first mentioned the relevant stressors to Dr Furze and that this was after 11 years of seeing Dr Furze on a regular basis.
21. During Mr Grant’s evidence of his treatment by Dr Ben-Tovim in about 1991, he answered in the affirmative, questions put by the Tribunal as to whether he had told Dr Ben-Tovim about the motor cycle incident, the hand grenade incident, and the incident involving a Korean officer. The Tribunal then, (mistakenly thinking that it had been Mr Grant rather than Mr Kevin Bate who had provided evidence of witnessing a child run over and instantly killed), asked Mr Grant if he had told Dr Ben-Tovim about the child being run over. Mr Grant said that he had told Dr Ben-Tovim of this incident. When asked if there was any reference to such an incident in his statement, Mr Grant read his written statement for a time and then confirmed that there was no mention in that statement of Mr Grant witnessing a child being run over. Mr Grant then said that although he had witnessed such an event, but had not mentioned it in his written statement or to Dr Furze, or to his counsel. When asked to expand on this incident Mr Grant said that he had been standing in front of his billet waiting to be driven to work when he saw a Vietnamese vehicle strike a child who had been crossing the road. He said he had seen a group of school children crossing a road when a truck veered to dodge traffic and hit a young girl, knocking her to the ground. He said that she seemed seriously injured and that he heard her screaming. He said that he was distressed. Mr Grant said that he had been with about six other people waiting for transport to the Free World Centre but he could not now identify any of these people.
evidence of mr kevin bate
22. Mr Bate said that he served in Vietnam from June 1969 until June 1970. During the time he was stationed in Saigon he was in charge of the generator sheds. He said that he recalls the name Robert Grant but has no specific recollection of Mr Grant and would not recognise him if he passed him in the street.
23. Mr Bate said that traffic conditions in Saigon were extremely congested and that he was involved in or observed a number of traffic accidents. He referred to an occasion when an elderly Vietnamese man, in his seventies or eighties, was killed when his push-bike was run over by an Australian truck. The truck was surrounded by a crowd attempting to extract the elderly man from under the vehicle. The truck was initially unable to move.
24. Mr Bate referred to observing another accident scene where Americans had run over a little girl. He said that the wheels of the truck had flattened the little girl’s head and that her brain had popped out and was sitting about three feet away from her head.
25. Mr Bate also referred to an occasion when another Australian soldier, Mr Allan Curry had told him that he had been in the back of an Australian truck when grenades had exploded. Mr Bate said that he would have no idea when this incident happened. Mr Bate said that nothing had been reported or at least there had been no follow-up of any description. He said that he would not have a clue whether Mr Grant was on the truck or not.
26. Mr Bate said that during his time in Saigon he was in charge of the generator shed and that he had constructed a barricade of 44 gallon drums on one side of the shed. He said that the sound of the generators meant that one could not hear anything while inside the generator shed. He said that on frequent occasions he had noticed bullet holes in the drums.
evidence of mr graham deguet
27. Mr Deguet told the Tribunal that he regards himself as an old army friend of Mr Grant’s. Mr Deguet said that he started work at the generator shed at the Free World complex in early March 1970. He said that Mr Grant started work in the same area a couple of months later. Mr Deguet explained that on his arrival he had replaced Mr Bate as Lance Corporal in charge of the generator shed. Mr Deguet seemed to indicate an understanding that in these circumstances Mr Grant’s service and Mr Bate’s service does not appear to have over-lapped. He said that if there was any over-lap it, would not have been for more than a week or two.
28. Mr Deguet referred to travelling in a truck and hearing explosions at the back of the truck. He said they sounded like hand grenades going off behind the truck. He said that he does not know whether Mr Grant was in the truck at the time.
29. Mr Deguet also indicated that he did not know of anyone who had fired shots in anger while in Saigon. He said that while in Saigon he was Mr Grant’s immediate supervisor at the Free World Centre. He said that he does not remember Mr Grant ever reporting the use of ammunition.
evidence of mr kevin smith
30. Mr Smith explained that his service in Vietnam did not coincide in time with that of Mr Grant. He said however that on some occasions hundreds of shots would be fired into the Free World Centre and that he could hear the shots coming over at night. He said that he would just keep out of sight and that he never shot back. He said that sometimes hundreds of shots would be fired. He said that he never reported the firing of these shots to anyone but that everyone was aware that it went on.
evidence of mr warren barsley
31. Mr Barsley prepared a report dated 2 November 2006 under the auspices of Writeway Research Service Pty Ltd. The report contains four attachments. Mr Barsley said that ammunition was issued to individual soldiers and that each soldier was responsible for his weapon. He said that to his knowledge there was no spare ammunition lying around and that ammunition would normally be held in the armoury under lock and key.
32. Mr Barsley said that he had provided a copy of Mr Grant’s statement to Lieutenant Colonel Bourne who was the officer commanding the Signals Unit in Saigon. Mr Bourne’s statement indicates that he had no specific recollection of the self-immolation of the monk in front of the Free World Centre however Mr Barsley confirmed that there was a record of the self-immolation of a monk in June 1970 at an unspecified location in Saigon. He also indicated that Lieutenant Bourne had provided some limited support for an incident involving a vehicle accident with the driver of a motor bike.
33. Mr Barsley expressed the opinion that it would be unlikely that shots fired into, and returned from, the Free World Centre, would be unrecorded. He suggested that this was particularly true if someone had been hit and killed. He said that this would be a very serious matter. He suggested that if such an incident had occured many people would have become aware of it.
evidence of dr peter furze
34. Dr Peter Furze is a psychiatrist. He explained that he has been treating Mr Grant since about 1989. Dr Furze said that at about that time Mr Grant was involved in a long and protracted dispute with Telecom. Dr Furze provided a report in July 1990 to the Australian Government Health Service, which included a diagnosis of Depressive Disorder.
35. Dr Furze said that he arranged for Mr Grant to be admitted to a psychiatric ward at the Repatriation General Hospital in about August 1991. Dr Furze confirmed that in arranging this admission he did not make any reference to a diagnosis of PTSD or to the possibility of such a diagnosis. He explained that at the time it was his opinion that Mr Grant was suffering from major depression. Mr Grant was very ill at the time and his major concern was treating Mr Grant.
36. Dr Furze said he received a copy of the discharge summary which included the following comment:
“on admission, he complained of increasing symptoms of his PTSD with nightmares, occasional flash-backs, poor concentration, early morning wakening, poor appetite, reduced energy, reduced libido, reduced pleasures and he also complained of suicidal as well as homicidal thoughts which he found very distressing.”
Dr Furze said that after receipt of the discharge summary, his memory is that he started to try to explore Mr Grant’s war-time experiences.
37. Dr Furze agreed that a possible interpretation of the statement “he complained of increasing symptoms of his PTSD with nightmares” would be that the veteran actually stated that he had increasing symptoms of his PTSD. Dr Furze said that he did not contact Dr Ben-Tovim to ask whether he had made the diagnosis of PTSD or whether he was simply recording the veteran’s presentation as someone who had suffered from PTSD.
38. Dr Furze referred to some passages of the clinical notes which included a diagnosis, probably made by Dr Fraser of “post traumatic stress disorder, depression, chronic pain, compensation case.” Dr Furze confirmed that he could not find any specific reference in those notes to any of the stressors now asserted by Mr Grant as forming a basis for PTSD.
39. Dr Furze was referred to his report dated 20 February 1996. This report contained a diagnosis of major depression. It did not diagnose PTSD. Dr Furze also referred to his final report dated 30 November 2000 in which he recorded a number of stressors disclosed by Mr Grant. This report contained a diagnosis of PTSD. Dr Furze said that the stressors described to him prior to the preparation of the report were:
· Ongoing conflict with the Buddhist monks;
· Small arms fire at 44 gallon drums;
· An incident where he returned fire and believes that he killed one of the monks;
· Two hand grenades going off behind a truck;
· A young Vietnamese going under the back wheels of a vehicle in which Mr Grant was travelling to work at the Free World Centre.
Dr Furze said that since writing that report Mr Grant has told him that he witnessed the self-immolation of a Buddhist monk. He said that this was only advised to him this year, that is in 2007. Dr Furze added that he had been advised by Mr Grant in 1995 of an incident involving the theft of a truck and, at some other time, of a confrontation with a Korean officer. Dr Furze confirmed that he had never been told of an incident in which Mr Grant observed a young Vietnamese girl being run over and seriously injured.
40. Dr Furze said that it was not unusual for veterans to avoid disclosure of stressful incidents. He confirmed that it was not until the year 2000 that Mr Grant advised him of particular stressors notwithstanding that he had been seeing Mr Grant on a regular basis since about 1989. He said that it did not surprise him that on meeting Mr Grant in 1991 Dr Ben-Tovim had been told of stressors relating to Mr Grant’s service in Vietnam whereas. Dr Furze said that with hindsight he should have contacted Dr Ben-Tovim to elicit further information about Mr Grant’s 1991 hospital admission and particularly any stressors upon which a diagnosis of PTSD may have been made.
41. Dr Furze said that if the stressors which are now said to form the basis of PTSD were found not to have occurred then his original diagnosis of Depressive Disorder would still stand. Mr Grant’s other symptoms would be consistent with that diagnosis.
42. In reference to Depressive Disorder, Dr Furze said that the likely clinical onset of that condition was about 1986 following Mr Grant’s work injury. Dr Furze repeated that it was his view that Mr Grant does suffer from both PTSD and Depressive Disorder and that in his experience the delay in revealing relevant stressors was not uncommon.
procedural matter
43. Mr Grant’s counsel, Mr Hemsley, sought to tender a witness statement of Mr Gregory Francis Walsh. Mr Hemsley explained that Mr Walsh was unavailable to give oral evidence. He said that Mr Walsh had been concerned that the Commission had obtained documents from his file, held by the Department of Veterans’ Affairs, and that the Commission wished to tender an extract from a medical report which related to him. A facsimile sent by Mr Walsh was to the effect that he did not consent to the Commission tendering the extract from his medical report. Mr Hemsley said that Mr Walsh’s concerns were the reason why he had chosen not to make himself available for cross-examination.
44. Mr Walsh’s written statement includes reference to having heard of an incident in which a child had been run over by a truck. The statement also referred to “common talk among the people” that there had been shots fired from the monastery. Mr Walsh also indicated that on one occasion in 1970 he had been in a truck and that a hand grenade had been thrown by a person on a motorbike. The grenade had gone over the truck and landed on the road behind the truck. The motorcyclist kept going and the truck had accelerated away. He indicated that he had reported this incident, but was aware that the incident had not been recorded.
45. The Commission did not object to Mr Walsh’s statement being accepted into evidence (Exhibit A4), however the Commission suggested that as Mr Walsh had chosen not make himself available for cross-examination, the weight which the Tribunal should attach to the statement should be minimal.
46. The Commission’s representative then sought to tender the extract from a report of Dr Michael Robertson relating to Mr Gregory Walsh. The extract relevantly provides as follows:
“The veteran served as a regular soldier between 1968 and 1974. His tour of duty in Vietnam was 1970 where he served with the Signal Corp based in Saigon. He recalled an incident where he saw children jumping out of the window of a burning building in which a number of them were seriously injured. He also recalled an ambush in 1970 in June or July of that year in which he came under attack by small arms fire with a number of hand grenades. He was apparently driving a motor vehicle in Saigon and accelerated out of the incident without returning fire. At that time he felt he was either going to be killed or injured as a result.”
47. Mr Hemsley objected to the admission of the extract of Dr Robertson’s report. Mr Hemsley suggested that production and use of this document would be in breach of The Privacy Act 1988 principles (“the Privacy Act”), and as such the Tribunal ought not to accept the document into evidence.
48. The Tribunal heard argument on whether the document was subject to Privacy Act principles and whether its production or use would contravene those principles and consequently be unlawful.
49. Whether the extract from Dr Michael Robertson’s report contravenes the Privacy Act principles or not, one of the issues for the Tribunal to consider in any dispute concerning the admissibility of evidence is relevance. It was suggested that the material contained in the subject medical report was relevant to Mr Walsh’s credibility and the consequent value the Tribunal should attach to Mr Walsh’s statement. It was suggested that there were some points of difference between the history allegedly provided to Dr Robertson by Mr Walsh as recorded in Dr Robertson’s report and the evidence contained in Mr Walsh’s statement. In particular, the Commission’s representative referred to the number of hand grenades, two as opposed to one, and to the reference to small arms fire. Mr Crowe also suggested that Mr Walsh is likely to have told Dr Robertson that he was driving the truck whereas his written statement implies that he was a passenger in that vehicle. The Tribunal notes that Dr Robertson’s report carries the date 29 October 2001. It does not indicate the date upon which the history contained therein was obtained. The Tribunal also notes that there is no indication as to the circumstances under which the information was provided to Dr Robertson. It also appears that Dr Robertson was uncertain as to whether Mr Walsh had told him that he was driving the vehicle. He uses the phrase “apparently driving”. In the circumstances, the Tribunal is not satisfied that the material contained in this document is relevant and would assist Tribunal in its deliberations. The Tribunal attaches little weight to Mr Walsh’s statement, provided without making himself available for cross-examination, and considers the medical report extract to be of even less relevance. The Tribunal would reach this view even if the Tribunal had been of the view that production and use of the document does not breach Privacy Act principles. The document will not be admitted into evidence.
consideration
50. The first issue for the Tribunal to consider and one which, as things turned out, may be determinative of the application, is whether Mr Grant suffers from PTSD and/or Depressive Disorder. Dr Furze has diagnosed both conditions. He also indicated that PTSD is likely to have pre-dated the clinical onset of Depressive Disorder in about 1986 and contributed towards the development of that last-mentioned condition.
51. The Commission argued that there was no basis upon which a medical practitioner could diagnose PTSD as Mr Grant did not experience any severe stressors while serving in Vietnam.
52. Mr Grant’s counsel had indicated that stressors relied upon by Mr Grant were:
· The exposure to gunfire which placed Mr Grant at risk;
· Returning this fire on an occasion and believing that a person had been injured as a result;
· Observing a Buddhist monk set fire to himself;
· Observing Vietnamese attempting to insert snakes into the compound;
· Travelling between his accommodation and work and being exposed to risk or observing accidents involving the vehicle in which the applicant was travelling.
53. Mr Crowe argued that Mr Grant’s evidence should not be accepted. He suggested that some of his evidence was inherently unlikely. This category was suggested to include the apparently reported but unrecorded incident of Mr Grant shooting and either killing or wounding a Cambodian monk. He suggested that it was relevant to note that notwithstanding consulting Dr Furze on a regular basis for approximately 11 years prior to the year 2000, it was not until that year that Mr Grant provided Dr Furze with a history which included the stressors experienced in Saigon.
54. The Tribunal has considered these contentions along with others made by Mr Crowe in respect of the stressors alleged to have been experienced by Mr Grant during his period of service in Saigon. The Tribunal has significant concerns about Mr Grant’s credibility. These concerns have arisen out of circumstances including Mr Grant’s disclosure for the first time at the hearing of another event experienced in Saigon, that is of a schoolgirl being seriously injured in a motor vehicle accident.
55. Dr Furze found it consistent with Mr Grant’s personality and background that he delayed revealing the alleged stressors to Dr Furze. Some support for the argument that Mr Grant was not inventing these stressors can be gained from an apparent diagnosis of PTSD by psychiatrist Dr Ben-Tovim in about 1991. In order to make that diagnosis it is necessary for a patient to have experienced a severe stressor.
56. In determining the issues related to diagnosis, the Tribunal must consider the issues on the balance of probabilities. The Tribunal must determine whether it is more likely than not that Mr Grant experienced at least one severe stressor prior to the clinical onset of PTSD. Although the Tribunal has significant concerns relating to Mr Grant’s credibility, it nevertheless has noted that the evidence provided in the Writeway research report presented by Mr Barsley includes reference to the self-immolation of a Buddhist monk at an unspecified location. This incident appears to have taken place during the time Mr Grant served in Saigon. The Tribunal found that it could accept Mr Grant’s evidence of this incident and on balance was satisfied that it was probable that such an incident was experienced by Mr Grant. The Tribunal also considered that it was more likely than not that Mr Grant experienced a grenade attack while travelling to work at the Free World Centre. In these circumstances it is unnecessary to make specific findings in relation to the other incidents asserted to have been experienced by Mr Grant.
Legislative Background
57. Section 9 of the Veterans’ Entitlements Act 1986 (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; …”
58. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
59. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
60. As Mr Grant 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.”
61. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
62. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
63. The Tribunal notes that where a SoP exists it must apply the test prescribed by s120A(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 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.”
64. The Tribunal was satisfied in considering the steps suggested in Repatriation Commission v Deledio that there was material which pointed to a hypothesis connecting Mr Grant’s PTSD with his war service. That material includes Mr Grant’s experience of the self-immolation of a Buddhist monk, and the experience of a grenade attack. There is a SoP relating to PTSD, being Instrument No 3 of 1999. Steps one and two as enunciated in Deledio are satisfied.
65. The Tribunal next turned to consider whether the material fitted the template prescribed in the relevant SoP. In this case Mr Grant may not have used the language of the template in providing his statement or evidence at hearing however he did say that he observed the self-immolation of a Buddhist monk some thirty metres from his position and that he could not understand why nobody went to the monk’s assistance and that he was upset and disturbed by the incident. He also said that he tried to put it out of his mind. In the Tribunal’s view such an observation meets both the objective and subjective elements of the definition of a severe stressor and consequently the circumstances of this incident match the template prescribed in the relevant SoP. Similarly the material includes reference to a grenade attack. Dr Furze’s report suggests that this incident was a severe stressor for the purposes of diagnosis of PTSD. The Tribunal considers that this evidence matches the template.
66. In considering the above-mentioned issues the Tribunal considered all of the evidence before it, whether or not that material supported the hypothesis as required by cases such as Bull v Repatriation Commission (2001) 66 ALD 271, the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at 439-441 and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J (at 25) likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action when no consideration is given to whether the facts pleaded can be substantiated.
67. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). The Tribunal refers also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
68. The Tribunal then considered the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before the Tribunal, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground to determine that the incapacity in question was war-caused. If the Tribunal is not so satisfied Mr Grant’s claim will succeed by virtue of s 120(1) of the VE Act. In examining this question the Tribunal notes that there is no onus of proof (see s 120(6) of the VE Act and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pp 424.8 and 425.5). The Tribunal also considered Byrne v Repatriation Commission (1993) 177 CLR 564 at 571, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
69. As the Tribunal found on a more stringent test (balance of probabilities) that Mr Grant did experience the self-immolation of a Buddhist monk, and a grenade attack in circumstances which met the definition of a severe stressor, the Tribunal is not satisfied beyond reasonable doubt that the hypothesis is disproved. As a consequence, all steps enunciated in Deledio are satisfied in this case and the Tribunal is satisfied that Mr Grant suffers from a war-caused PTSD with a clinical onset of that condition pre-dating Mr Grant’s major Depressive Disorder.
70. As mentioned, Dr Furze has also diagnosed Depressive Disorder. This diagnosis was not contested by Mr Crowe at hearing and Mr Crowe, quite properly, conceded that if the Tribunal were to find a war-caused PTSD which pre-dated the clinical onset of Depressive Disorder (approximately 1986) then Depressive Disorder should also be considered war-caused. The SoP relating to Depressive Disorder is Instrument No. 17 of 2007. The Tribunal particularly noted Factor 6(g) of that SoP “having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder”. PTSD is a clinically significant psychiatric condition. In the circumstances the Tribunal is satisfied that a reasonable hypothesis exists relating Mr Grant’s Depressive Disorder to his war service through the agency of a pre-existing war-caused PTSD.
71. In the light of the above-mentioned circumstances both PTSD and Depressive Disorder are determined to be war-caused with effect from 6 August 2000, that is three months before the date the application was lodged. The Tribunal will remit the issue of assessment to the Repatriation Commission for determination.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Dr E T Eriksen (Member)Signed: ............L. Staker……………….
AssociateDate/s of Hearing 25, 26, 27 July 2007
Date of Decision 10 October 2007
Advocate for the Applicant Mr G HemsleyAdvocate for the Respondent Mr A Crowe
DVA
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