Gray and Repatriation Commission

[2004] AATA 224

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/454

VETERANS' APPEALS  DIVISION		)
Re		DAVID GRAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal SP Estcourt, QC

Date4 March 2004

PlaceAdelaide

Decision The decision under review is affirmed.

(signed)
SP ESTCOURT QC

(Deputy President)

CATCHWORDS

VETERANS’ ENTITLEMENTS - Generalised Anxiety Disorder - whether condition is war-caused – experiencing “severe psycho-social stressor” - whether clinical onset of generalised anxiety disorder within two years of the events

Statement of Principles, Instrument No.1 of 2000.
Veterans' Entitlements Act 1986 ss120, 196B(2)

Repatriation Commission v Deledio (1998) 83 FCR 82

Woodward v Repatriation Commission [2003] FCAFC 160

REASONS FOR DECISION

4 March 2004 SP Estcourt QC (Deputy President)

1.      This is an application to review a decision of the Veterans’ Review Board of 28 October 2002 affirming a decision of the Repatriation Commission of 9 May 2002 rejecting a claim by the applicant for “generalised anxiety disorder” as a war caused disability under the Veterans’ Entitlements Act 1986 (“the Act”).

2. The applicant’s relevant service was operational service in the Royal Australian Army in South Vietnam between 6 January 1971 and 29 October 1971 and accordingly the standard of proof is governed by s120 of the Act, applied in accordance with the four stages of analysis prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97.

3.      In the present case it is common ground between the parties that the Tribunal can be reasonably satisfied that the applicant has the condition of “generalised anxiety disorder” and the question therefore is whether the whole of the material before the Tribunal points to an hypothesis connecting the applicant’s condition with the circumstances of his particular service. If so, the question is whether that hypothesis is a reasonable one.

4. There is in effect a relevant Statement of Principles determined by the Repatriation Medical Authority under s196B(2) of the Act, namely Statement of Principles No.1 of 2000 concerning “Anxiety Disorder”.

5.      The applicant’s case is that some five separate incidents or situations he encountered in South Vietnam were connected to the condition from which he suffers and on the face of it the material he advances points to that hypothesis.

6.      It falls therefore to the Tribunal to determine whether the hypothesis is a reasonable one. To be so, it must be consistent with the template found in the relevant Statement of Principles, and contain the factors which the Authority has determined to be the minimum which must exist.

7.      In respect of “generalised anxiety disorder”, the factors which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of a person’s relevant service are;

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

8.      “Severe psychosocial stressor” is defined as meaning;

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

9.      Much was made during the hearing before the Tribunal of what the applicant told or did not tell psychiatrist Dr Marty Ewer on the two occasions he saw him, by way of history concerning the five events in South Vietnam and the impact they had on him. I take due account of what Dr Ewer recorded in his notes and later wrote in his two reports, however, in determining whether the applicant suffered a “severe psychosocial stressor” I rely principally on the evidence the applicant gave before the Tribunal which was both detailed and extensively cross-examined.

10.     The first event enumerated by the applicant occurred while he was duty officer one night and approached a strong point on the perimeter fence surrounding his base in order to check the alertness of his men. On this occasion he heard one of the soldiers cock his rifle and he saw that it was pointed at him at a range of about 10 metres.

11.     The applicant dealt with the inexperienced soldier involved but he was, he said, “extremely concerned for [his] own safety” and “at the time [he] feared for his life.”

12.     In cross-examination the applicant said that he had been “extremely distressed” by the incident and said “I was very concerned for my own safety”. He said that he remonstrated with the soldier and explained to him what the correct procedures were. He didn’t report the incident formally. He said that he was left with the “considerable scare” he had out of this event but that he put it behind him at the time and continued on with the inspection of another strong point.

13.     The second event detailed by the applicant involved a standing patrol outside the perimeter wire of his base at night, when after hearing a noise which could have been the enemy, a strong point on the perimeter lit up the applicant’s location with a searchlight beam and it took a radio call from the applicant and 5 to 10 minutes to have the light turned off.

14.     This event caused the applicant, he said in evidence, to be “extremely concerned about the safety of my patrol and myself.”

15.     Of this incident, the applicant said in cross-examination “the patrol one has always given me some concern. I have bad memories of that one, but they were all within par.”

16.     The next event canvassed was that the applicant’s office at his base was near the field hospital and only 20-25 metres from the medical evacuation helipad which served the hospital. As a consequence the applicant witnessed casualties and fatalities from the fighting up to 5 times a week both at night and by day for some 7 to 8 months.

17.     Of this the applicant said in evidence

”I’m not melodramatic but I have always been a fairly sensitive person and it brought it home to me very graphically that we were only 20 minutes away from the fighting. That was a cause of concern for me.”

18.     In cross-examination the applicant said that he “never got used to” the casualties and that they “caused him to be upset at all times”.

19.     The next incident described by the applicant was when he had managed to get a ride in an Air Force one ton truck from Vung Tau to Saigon to pick up stores. About half way through his trip, which had been otherwise uneventful, the applicant heard a burst of automatic fire that came from the side of the road some 30-50 metres away. He said that there was no indication that the vehicle had been hit. He went on to say

“We increased our speed to get out of that particular area. We were concerned that it may have been directed at us. We were alarmed, both the driver and I. I discussed it with my colleagues on my return to base. I would have said that at the time it scared me substantially but probably not much more than that.”

20.     In cross-examination he said he had been “alarmed and startled.” He said he did not see it as a “hugely significant event”. He said that when the bullets were coming he would have felt “intensely frightened” for a moment, but in the overall scheme of things it came within the notion of “some concern”.

21.     The final incident detailed by the applicant was the death of two ordinance soldiers known to him, Grant Ross and Terry Lyons. These two men were killed when a major explosion occurred near to where they were working in Nui Dat. The applicant told the Tribunal

“There were not a lot of ordinance people in Vietnam, so we were a fairly close knit group. It hit home very hard with our whole unit. We had an internal memorial service for them. It was a very upsetting experience.”

22.     In cross-examination the applicant accepted that he hadn’t known either of the two men intimately and that he had only been in Vietnam for about a month when their deaths occurred. He reiterated however that there were only a handful of ordinance officers in Vietnam and that they all knew each other.

23.     In Woodward v Repatriation Commission [2003] FCAFC 160 at [142] the Court in dealing with the term “severe stressor” said

“Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SOP’s by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the events said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.

24.     Acknowledging that the term “severe stressor” was quite differently defined in the Statement of Principles in Woodward, I nonetheless take the observations of the Court to have equal application to the term “severe psychosocial stressor” in the present case.

25.     I have little doubt that judged objectively from the point of view of a reasonable person in the position of the applicant in the present case, the events he experienced were capable of evoking feelings of substantial distress to the degree contemplated by the Statement of Principles. I do not however accept that they did in fact evoke such feelings in the applicant.

26.     The definition of “severe psychosocial stressor” is in my view particularly unhelpful providing as it does examples as diverse as being shot at and having legal problems. It will, I predict, ultimately require consideration by the Federal Court. It contemplates, however, in my view the evocation of feelings of substantial distress which transcend the reactions described by the applicant to the five incidents which he experienced, namely; in respect of each in turn

1. “extremely concerned for my own safety,“ “at the time I feared for my life,” “extremely distressed,” “a considerable scare” “but put the incident behind me at the time.”

2. “extremely concerned about the safety of my patrol and myself,” “some concern,” “bad memories”.

3. “a cause of concern to me,” “caused me to be upset at all times.”

4. “we were alarmed, both the driver and I,” “it scared me substantially but probably not much more than that,” “alarmed and startled,” “not a hugely significant event,” “intensely frightened for a moment.”

5. “a very upsetting experience.”

27.     In my view whilst the events the applicant described were objectively capable of evoking feelings of substantial distress within the contemplation of the term “severe psychosocial stressor” as defined by the Statement of Principles they did not do so in the applicant. Rather, having carefully considered the applicant’s evidence I am of the opinion that those events each caused him transient feelings of fear and upset not significant enough to be described as “substantial distress.”

28.     In the event that I were found to be in error in this conclusion I should record that the applicant’s claim in my judgement would fail for a second reason, namely that the clinical onset of the “generalised anxiety disorder” as defined in the Statement of Principle cannot be said to have occurred as required by the Statement, within two years of the applicant experiencing any of the stressors relied upon.

29.     Paragraph C of the definition of “generalised anxiety disorder” requires there to be anxiety and worry, associated with three or more of six symptoms listed.

30.     Of the list of six symptoms the applicant claims four, namely restlessness, irritability, difficulty sleeping and difficulty concentrating. The respondent concedes the first two but not the second two. In my judgment there is no evidence to support the claim of difficulty concentrating within two years of the last of the events described and the evidence in support of difficulty sleeping was limited to the applicant’s statement that “his sleeping patterns had changed” and he “still can’t sleep in”. This falls short of establishing a “difficulty” in my judgment.

31.     It follows from all that I have said that the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of SP ESTCOURT QC

Signed:         .......................................................................................
  Associate

Date/s of Hearing  1 March 2004
Date of Decision  4 March 2004
Counsel for the Applicant         Mr P. Broderick
Solicitor for the Applicant          Lempriere Abbott McLeod
Counsel for the Respondent     Mr G. Doube
Solicitor for the Respondent     DVA