Hansell and Repatriation Commission (Veterans’ entitlements)

Hansell and Repatriation Commission (Veterans’ entitlements) [2016] AATA 893 (11 November 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/1557

Re

Bernard Francis Hansell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 11 November 2016

Place Melbourne
The Tribunal affirms the decision under review.

..............[sgd]....................................................
Egon Fice, Senior Member
VETERANS’ ENTITLEMENTS - disability pension - operational service in Royal Australian Navy - posttraumatic stress disorder - evidentiary issues regarding expert opinions - need for collaborating evidence in establishing posttraumatic stress disorder - where Tribunal not satisfied of accuracy diagnosis - where assumption of accurate diagnosis leads to reasonable hypothesis upholding statement of principles - inconsistent and illogical evidence - where Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that condition is war caused - decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 196B
CASES
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keely (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
Woodward v Repatriation Commission (2003) 131 FCR 473
SECONDARY MATERIALS
Statement of Principles Instrument No 82 of 2014 Posttraumatic stress disorder
Statement of Principles Instrument No 5 of 2008 Posttraumatic stress disorder as amended by Instrument No 19 of 2014 Posttraumatic stress disorder
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4^th ed, 1994).
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5^th ed, 2013).
REASONS FOR DECISION
Egon Fice, Senior Member

Mr Bernard Francis Hansell joined the Royal Australian Navy (RAN) on 14 January 1966. He was discharged on 18 May 1972. He had operational service on board HMAS Sydney between 22 April 1966 and 16 May 1966; and again between 25 May 1966 and 11 June 1966 (respondent’s outline of submissions). Mr Hansell also had operational service on HMAS Jeparit between 14 March 1969 and 19 April 1969; and again between 24 April 1969 and 29 May 1969.
MV Jeparit was a general-purpose bulk carrier of the Australian National Line which was chartered by the Department of Shipping and Transport to convey supplies and equipment to Vietnam for the 1st Australian Task Force. Following the charter by the Department of Shipping and Transport, Jeparit’s normal complement of civilian sailors was replaced to the extent that 18 of the crew were then drawn from the RAN. The RAN component comprised one officer and 17 sailors.
On or shortly after 25 July 2012 Mr Hansell lodged an application for the Disability Pension for conditions not yet accepted as service related and for an increase in the disability pension for previously accepted disabilities. I am unable to provide the precise date because the documents produced under s. 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) are incomplete.
The medical condition Mr Hansell claimed arose out of his operational service was Posttraumatic Stress Disorder (PTSD). His claim form was not completed by a medical practitioner at the time it was lodged, however, Mr Hansell noted on the claim form: to be diagnosed by Dr P Collier – (PSYCH). Dr Paul M Collier, a psychiatrist, provided a medico-legal report dated 12 September 2012 which was received by the Department of Veteran Affairs Melbourne on 14 September 2012. Dr Collier diagnosed Mr Hansell as meeting the diagnostic criteria for PTSD according to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4^th edition (DSM IV).
In a letter dated 12 November 2012 a delegate of the Repatriation Commission notified Mr Hansell that he decided Mr Hansell’s PTSD was not related to his military service. Mr Hansell then lodged an application for review of the delegate’s decision by the Veterans’ Review Board (VRB). The VRB handed down its decision on 12 March 2014 affirming the delegate’s decision. Mr Hansell then proceeded to lodge an application with the Tribunal on 27 March 2014 seeking review of the VRB decision.
The Tribunal (Dr R McRae, Member,) heard Mr Hansell’s claim on 23 and 24 April 2015 with a further hearing day on 22 May 2015. It handed down its decision on 29 May 2015, deciding to affirm the decision under review. Dissatisfied with that decision, Mr Hansell lodged an application with the Federal Court of Australia seeking judicial review of the Tribunal decision in accordance with s. 44 the AAT Act.
Subsequently, the representatives of both parties to the appeal in the Federal Court prepared a joint memorandum setting out the agreed errors of law made by the Tribunal. They were accepted by Murphy J who then remitted the matter to the Tribunal to be determined according to law. His Honour made no particular directions regarding further evidence or in any way limiting the scope of the rehearing. Accordingly, I have proceeded on the basis that my duty is to start afresh.
DIAGNOSIS IN THE CONTEXT OF VETERANS’ CLAIMS
Section 120 of the Veterans’ Entitlements Act 1986 (VE Act) is concerned with the standard of proof to be applied when dealing with veterans’ applications. That is, it is concerned with the standard required to be established in determining whether an injury or disease is war-caused and in making any other determination under the VE Act. However, prior to determining whether incapacity from disease or injury is war-caused, a decision maker must first determine the nature of the injury or ailment which is claimed to cause the incapacity. As the Full Court of the Federal Court of Australia (Keane CJ, Jacobsen and Bennett JJ) said in Repatriation Commission v Bawden (2012) 206 FCR 296 at 305:
… Diagnosis is a process which necessarily involves examining a collection of symptoms in order to identify a disease in accordance with diagnostic criteria.…
A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension.
Section 120(4) of the VE Act deals with the standard of proof when determining a diagnosis. It provides:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, I am required to decide the question of diagnosis to my reasonable satisfaction (see Repatriation Commission v Hill (2002) 69 ALD 581 at 589 – 599). As was stated by the Federal Court decision in Repatriation Commission v Smith (1987) 15 FCR 327, at 334 – 335, it is intended to introduce the standard of proof required in civil litigation. That is, I am required to decide the diagnosis question on the balance of probabilities.
There are several problems which have been encountered when dealing with PTSD cases and in particular the determination of whether or not a veteran has this mental condition. These seem to me to have arisen from the fact that it appears to have been assumed that the decision-maker must find a connection between the traumatic event or events claimed by the veteran and the symptoms which he or she has described. Obviously, the very expression, post-traumatic stress disorder, calls for finding a traumatic event as the trigger. If a decision maker only examines the traumatic events described by the veteran which he or she claims occurred in the course of operational service, that may not yield an explanation for the symptoms described by the veteran because it does not take into account the fact that there may have been other traumatic events which have occurred outside the operational service of the veteran which have caused the development of PTSD.
There are some further problems to which I should refer in finding whether a diagnosis of PTSD was correctly made. The most significant of these is the fact that the psychiatrist examining the veteran must, necessarily, rely on statements about a traumatic event or events made by the veteran. The psychiatrist is in no position to verify any statements made by a veteran in the course of examination nor is the psychiatrist in a position to determine the accuracy of those statements. This concern is exacerbated in circumstances where financial remuneration or benefit eligibility plays a role.
The problem is compounded by the fact that the diagnostic features of PTSD set out in DSM-IV are available to anyone who chooses to search the internet. Therefore, any event which might fit the description involving death, injury or threat to the physical integrity of another person will ordinarily be given to the psychiatrist as will the reaction to such an event or events indicating that they involved intense fear, helplessness, or horror. In addition, the psychiatrist will also be given a description of symptoms which can be identified as the remaining diagnostic criteria set out in DSM-IV. It is not unusual in the course of hearing veteran’s cases dealing with PTSD to find that the veteran's description of his or her reaction to the events which they have described is precisely in the words used in Criterion A of DSM-IV, even when it appears that those words are inappropriate to describe the event in question. Frequently, in such circumstances, a diagnosis of PTSD is made.
The problem in dealing with claims for PTSD in the fashion I described above is that there frequently appears to be mechanical application of the criteria set out in DSM-IV. This is precisely what the introduction to the DSM-IV text cautions against. Under the paragraph heading Use of Clinical Judgement, the introduction states:
It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgement and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.
I have no reason to doubt that this caution applies equally to medically qualified practitioners.
There is another aspect of the application of the criteria in DSM-IV which appears to be largely ignored in veterans' cases. It arises out of the fact that PTSD is classified as a mental disorder. Under the paragraph headed Criteria for Clinical Significance, DSM-IV states:
The definition of mental disorder in the introduction to DSM-IV requires that there be clinically significant impairment or distress. To highlight the importance of considering this issue, the criteria sets for most disorders include a clinical significance criterion (usually worded "... causes clinically significant distress or impairment in social, occupational, or other important areas of functioning"). This criterion helps establish the threshold for the diagnosis of a disorder in those situations in which the symptomatic presentation by itself (particularly in its milder forms) is not inherently pathological and may be encountered in individuals for whom a diagnosis of "mental disorder" would be inappropriate. Assessing whether this criterion is met, especially in terms of role function, is an inherently difficult clinical judgement. Reliance on information from family members and other third parties (in addition to the individual) regarding the individual's performance is often necessary.
The problem is that rarely have I been provided with a report from a psychiatrist where the psychiatrist has obtained information from family members or other third parties. In those circumstances, the psychiatrist very often has, in my respectful opinion, insufficient information to make an accurate clinical assessment of the veteran's mental state and in particular, whether he or she suffers from a mental disorder. As will become apparent presently, this problem is manifest in the evidence before me in this case.
DIAGNOSIS – MR HANSELL
Mr Hansell’s claim has been made on the ground that he developed PTSD. As I have noted above, on his claim form, in the section which is required to be completed by a medical practitioner, Mr Hansell inserted: To be diagnosed by Dr P Collier – (PSYCH). The claim form was signed by Mr Hansell and dated 25 July 2012. Dr Collier’s report was provided on 14 September 2012.
Whether or not it is significant, it should be noted that Dr Collier’s report was provided some two months after Mr Hansell lodged his claim. Mr Hansell appears to have lodged his claim in anticipation that Dr Collier would diagnose PTSD. In fact in his report Dr Collier said he first saw Mr Hansell on 7 May 2012 and that he had interviewed Mr Hansell again on 11 September 2012, specifically to obtain further information required for his report.
According to Dr Collier, Mr Hansell gave him an account of two incidents when American aircraft came very close to the Jeparit while it was in South Vietnam. It appears Dr Collier recorded what was said by Mr Hansell and set out those two incidents verbatim, as Mr Hansell described them. Dr Collier wrote:
“I remember a big Yankee plane flew very close to our ship, at about the height of the bridge. I was in the mess in the superstructure at the stern end. I went up to the bridge and that’s when I saw it, either a second pass (of the same aircraft) or another one. It came from the stern, to the side of the ship say 50 or 70 m away. It had props on it, a big plane, bigger than a DC 3. It was very loud.”
…
“Another time (when we were) in Vung Tau harbour it was early, and Cobra gunships, Yank helicopters, did a simulated attack on our ship. I was on watch. They came out of the sun, perhaps three (initially) then another one. They were practising, but they’d not notified us. It was very brief, but there was no warning. They were Cobras, that is American helicopters. At that time I felt under threat. They were coming for the ship. I did feel my life was threatened; I was very aware that we were carrying ammunition.”
Dr Collier reported that the second incident described above occurred during Mr Hansell’s first trip on the Jeparit, earlier in 1969. Mr Hansell also reported seeing wounded soldiers lying on stretches at the hospital in Vung Tau.
Dr Collier also mentioned that Mr Hansell lost his house and all possessions in the Black Saturday bushfires of 7 February 2009. Mr Hansell apparently told Dr Collier he was at home when the fire went through but left his home as the roof started to fall in and drove to the township of Kinglake.
In response to a question from Dr Collier regarding the kinds of nervous difficulties or issues which may affect him, Mr Hansell apparently noted the following:
·he suffered from Dercum’s disease, a condition involving formation of multiple lipomas. He has had about 12 of these benign swellings surgically removed
·he became very angry around 1976
·he was also troubled by anger recently
·his sleep was not good which was the case in the 1970s and also since the 1990s
·he was impatient and easily frustrated, becoming angry with his wife who reportedly had her own problems
·he was diagnosed with high blood pressure in the mid-1980s. He has also been diagnosed with type II diabetes and high cholesterol
Dr Collier was of the opinion that the above experiences, which I understood included the Black Saturday bushfires, particularly the simulated air attack, would meet the A or trauma criterion for post-traumatic stress disorder according to DSM IV. Dr Collier said he administered Davidson’s Structured Interview for PTSD and found Mr Hansell had reported a number of relevant symptoms, with at least a moderate degree of intensity. Dr Collier found: The range, duration and severity of the above symptoms indicate that Mr Hansell’s condition meets the diagnostic criteria for PTSD, according to DSM IV.
Dr Collier was of the opinion that Mr Hansell’s clinical onset of PTSD was in the 1970s. Dr Collier also said it was important to consider the possible impact of the 2009 bushfire experience, and that the history he obtained indicated he was suffering from PTSD prior to the bushfires. Dr Collier also mentioned that Mr Hansell reported he had suffered from symptoms of fluctuating intensity throughout the years leading up to 2009 as well is afterwards. He concluded:
I am not in a position objectively to judge whether the incidents involving American aircraft were life-threatening, but if Mr Hansell’s reported subjective experience is to be given weight these incidents, perhaps particularly the one involving the Cobra helicopters, can be considered life-threatening experiences. Accordingly, in my opinion Mr Hansell’s PTSD meets the conditions of the relevant Statement of Principles to be considered a service related condition.
Dr Collier attended the Tribunal on 24 April 2015 and gave oral evidence at the first hearing. A number of significant matters arose in the course of his examination in chief and cross-examination.
Dr Collier confirmed that he was treating Mr Hansell and had done so since 2012. He saw Mr Hansell about six weekly intervals. Dr Collier also said he had prescribed antidepressants for Mr Hansell since July 2012 and that continued to the date of the hearing. When asked by Ms F Spencer, counsel for Mr Hansell, whether the short duration of the incidents described by Mr Hansell caused him to change his opinion as to whether Mr Hansell met the A or trauma criterion for post-traumatic stress disorder, Dr Collier responded it did not. Ms Spencer also referred Dr Collier to clinical notes made by Mr Hansell’s General Practitioner at the medical centre which he regularly attended. Dr Collier said he had seen those notes.
Of some significance to this application are the following entries:
·22 January 2000 – BP check. Also to let me know that the Navy contacted him to let him know that 2/3 of the men in his Navy ship have died of cancer as they were near nuclear test sites in the war… also vietnam Vet… Seeing Navy doctor next week.
·17 August 2001 – Stress at work – prepared to resign yesterday, now awaiting meeting with the bosses.
·12 April 2003 – 25 years intermittent very low mood. Started after narcotic’s federal police with the stress++ when gave up smoking in 1976… very depressed and almost lost job and family. … very depressed feelings out of blue that lasts four weeks… triggered usually by other people’s actions or words. Happening more often now… esp last 4 weeks.
·26 April 2005 – Note was in Navy from 1966 to 1970 and from 66 to 72 very heavy drinking 2* to depression from being tricked into thinking he could be a diver… then they said he couldn’t… was drinking 25 beers per day.
·6 June 2005 - this am knocked over a man standing on the road on a country road… nasty # tibia and flow on to the Alfred… Police happy was not his fault at all… sleepers for anxiety… discussion re recovery of patient.
·13 February 2009 – Prolonged consultant yesterday. Able to vent feelings re the 100% loss of home and all belongings and fear of event and dramatic escape… VERY lucky. … O/E chest clear and no reps distress and more C/W stress response as usually very cool man and this time quite emotional and reliving it in his head all the time. …
…
Reason for visit:
Feb 09 Bushfire refugee… Kinglake
·21 January 2010 – On holidays last 3 weeks and mood and sleep heaps better… Since back at work very stressed again.… another 3 weeks off as through time of the Black Saturday and alot of stress regarding that… crying and anxious… CBT re coping.
·1 March 2011 – During war did believe he may die… then same in Kinglake Bushfires… may then access DVA counselling.

Ms Spencer asked Dr Collier whether, having regard to the attendances following the Kinglake bushfires, he had changed his opinion, and Dr Collier responded – No. Dr Collier agreed that the Kinglake bushfires undoubtedly were a significant stressor and he said his understanding was that Mr Hansell was quite symptomatic in terms of PTSD after the fires but that state was approximately the same as what he was within a few years of his Vietnam service. He therefore regarded the Kinglake bushfires incident in terms of his PTSD as an aggravating factor to a pre-existing condition.
In cross-examination Mr G Purcell, then of counsel, who appeared on behalf of the Repatriation Commission, put to Dr Collier that as his treating psychiatrist, he had a primary responsibility to his patient. Dr Collier agreed. He then agreed that it was inevitably the case that the treating clinician would have a little sympathy for their patient.
Mr Purcell asked Dr Collier whether he was aware that Mr Hansell had consulted a psychiatrist in 2005. Dr Collier said he was not aware of that nor was he given that history from Mr Hansell. In fact Dr Collier said he had enquired about it but did not obtain that history.
In addition, there was no evidence that Dr Collier sought to obtain evidence from family members or other third parties regarding the impact that any distressing events may have had on Mr Hansell. His report appears to rely solely on what was said to him by Mr Hansell and he has accepted the accuracy of his account. In cross-examination Dr Collier said that from a clinician’s point of view, the history given by the patient is accepted and he cannot be expected to judge the objective history of the claimed stressor. In those circumstances, where a claim for a financial benefit arising from PTSD is made, one needs to be particularly careful about accepting the diagnosis.
The psychiatrist who examined Mr Hansell on 18 May 2005 was Dr Colin Seabridge. He provided a report dated 23 May 2005 which was taken into evidence. Dr Seabridge recorded that Mr Hansell told him that joining the Navy was the start of all my troubles. Mr Hansell told him that he had strongly desired to become a clearance diver and joined the Navy expressly to achieve that objective. Mr Hansell told Dr Seabridge he was assured he could undertake such training and one week before he completed recruit training he was told that his prior health problem, tuberculosis, did not permit him to train as a diver. Mr Hansell said he was dumbfounded and had no interest in pursuing a naval career, insisting he be discharged. He was told he could not leave as he had signed on for 9 years. According to Dr Seabridge, Mr Hansell then said:
He was given the job of Radar Plotter, which he hated, and said that he was so angry and so unhappy that he was unable to do the study required for his VCE exam. He was so discontented that he decided to force his own discharge from the Navy, with acts of criminal or unacceptable behaviour, and he commenced by going AWOL.
Dr Seabridge also recorded Mr Hansell telling him that as soon as he entered recruit training, whenever he got leave, he would drink as much as he could and that this pattern of opportunistic binge drinking continued throughout most of his naval career. At the time of examination in 2005, Mr Hansell told Dr Seabridge that he rarely drank alcohol.
Dr Seabridge opined that Mr Hansell’s drinking pattern did not fulfil the requirements for a diagnosis of substance abuse-alcohol, nor did it arise as a consequence of a service-related severe stressor. In fact Mr Hansell acknowledged that the origins of his heavy drinking began during his recruit training before the frustration of his failed career choice. Dr Seabridge concluded:
Although the issues described by Mr Hansell during his service adequately fulfilled the criteria for a severe psychosocial stressor, as required for the development of anxiety disorder or a depressive disorder, there is no evidence of such a disorder being in existence during or after his period of Naval service.
What is particularly significant about the history Mr Hansell gave to Dr Seabridge, in the course of what appears to be a claim for compensation for anxiety disorder or depressive disorder, is that Mr Hansell made no mention whatsoever of the Cobra helicopter gunship incident, the American aircraft overfly incident or the visit to the hospital at Vung Tau. It is also significant that Dr Seabridge examined Mr Hansell prior to the 2009 Kinglake bushfires. Not only did Dr Seabridge make no mention whatsoever of any severe stressors of the type now claimed by Mr Hansell, which would undoubtedly have been relevant in a claim for anxiety disorder or depressive disorder; or the possibility of PTSD; he found there was no evidence of any psychological disorder at that time.
Dr Albert Kaplan, a psychiatrist, examined Mr Hansell on 20 August 2014 at the request of Mr Hansell’s solicitors. In his report which is dated 22 August 2014 Dr Kaplan said that he was briefed with, amongst other documents, a bundle of service medical records and medical records from Dr Collier dated 12 September 2012 and 29 November 2012.
Dr Kaplan recorded a history given to him by Mr Hansell which included three Cobra helicopter gunships simulating an attack on the Jeparit. He apparently told Dr Kaplan that the gunships emerged with the sun behind them and Mr Hansell believed the ship was under attack, fearing he and others would all be killed. Dr Kaplan also recorded Mr Hansell as saying that he was not aware that the North Vietnamese did not possess an air-force.
Mr Hansell also described a second incident while he was on Jeparit. He said the ship’s alarm sounded and Mr Hansell hurried to the bridge and saw a low-flying aircraft with no lights fly pass the ship. He apparently said: you could hear it a long, long time before you could see it. This also caused Mr Hansell to fear that the ship was under attack.
Mr Hansell apparently told Dr Kaplan that on another occasion, a sergeant invited him to visit a field hospital. He said he believed he was at a nurses’ station when he saw injured soldiers, some bandaged or covered in blood, being brought into the ward.
Mr Hansell also apparently told Dr Kaplan that he had no previous history of psychiatric illness or treatment. Mr Hansell described the following symptoms to Dr Kaplan:
·he has a fear of Cobra helicopter gunships and seeing those helicopters on television induces intense anxiety and he will not watch the scenes
·reminders trigger thoughts of his traumatic experiences and they intrude in idle moments
·he relives the incident regarding the Cobra gunships, having in mind the sun and the helicopters flying straight overhead
·in the 1980s he began grinding his teeth in his sleep but said he could not recall any dreams; however in the early 2000s he would lash out, punching and kicking in his sleep and that prompted him to seek referral to a psychiatrist
·he is easily startled
·until recently he avoided going to Anzac Day marches
·he joined the RSL club in 2005 having previously avoided doing so as he had no interest in talking about the Vietnam War. He had not attended the RSL club in the past two years
·he was prone to anger directed largely at his wife
·Mr Hansell denied being depressed and his appetite was intact
·he suffered insomnia waking in the early hours of the morning and unable to return to sleep
·his libido was intact and had no difficulty with his memory and concentration
·he avoided social activity having two or three close friends
·his relationship with his wife has improved although he remains short tempered with her
·Mr Hansell and his wife lost their home in the 2009 Black Saturday fires but their home was rebuilt in 2010
·although they were in considerable danger during the fires, he recovered from that experience and does not experience any intrusive thoughts about that event
Dr Kaplan expressed his opinion that the range of symptoms described by Mr Hansell had developed over many years and were related to traumatic events experienced in Vietnam. He was of the opinion that Mr Hansell’s symptoms included a number of DSM IV and DSM V criteria for diagnosis of PTSD. Dr Kaplan was of the view that Mr Hansell’s condition caused him clinically significant distress and impairment in social functioning. He concluded:
As indicated, it would be reasonable to diagnose Mr Hansell to be suffering from Post-Traumatic Stress Disorder, as defined in DSM-IV and DSM-V, accepting the Guides’ comments about the use of those publications.
In his examination-in-chief by Ms Spencer, Dr Kaplan was asked if the Cobra helicopter gunships incident described by Mr Hansell satisfied the requirements in the DSM. Dr Kaplan said:
Not technically, because they weren’t actual threat of death, but they were a perceived threat of death.
When asked to explain the difference, Dr Kaplan said:
Well, in these cases as I understand it from what he described that as it turned out they weren’t – he wasn’t actually under threat of death, that these word – one was an exercise and the other was an allied – an American plane was flying past the ship.
Ms Spencer also asked Dr Kaplan whether Mr Hansell’s description of viewing injured and very badly injured soldiers would fall within the description of a category 1B stressor, referring to the stressors found in the relevant Statements of Principals (SoPs). Dr Kaplan agreed it would.
In cross-examination, Dr Kaplan agreed that the clinical notes from Mr Hansell’s General Practitioner were not provided to him when he wrote his report. Mr Purcell put to Dr Kaplan that if there had been half a dozen serious traumatic episodes between 1969 and the date he wrote his report, it would be relevant to take them into account. Dr Kaplan agreed. Mr Purcell referred Dr Kaplan to the following statement in his report:
… They lost their home in the 2009 Black Saturday fires and their home was rebuilt in 2010. Although they were in considerable danger during the fires, he recovered from that experience and does not experience any intrusive thoughts about that event.
He then asked Dr Kaplan whether he had made any independent enquiries to ascertain the factual foundation for that statement. Dr Kaplan agreed he did not. He also agreed he did not have access to medical information concerning Mr Hansell’s reaction to the fires. In other words, Dr Kaplan had simply relied on was told to him by Mr Hansell regarding his reaction to the fires.
The following is the account Mr Hansell gave in cross-examination regarding his and his wife’s narrow escape from the Black Saturday bushfires:
My wife called me inside and I went in and the front came through whilst I was in the house. She went into the bathroom. I sort of walked around the house. Then the bathroom ceiling caught alight and started to burn through and so I reefed her out of the bath. She was in the bath because this is where you’re told to go if there’s a fire. After a short time we realised that there was less smoke outside than there was in the house, and we got outside. The jeep I had at the time was still working. The fire, for some reason had gone around it and we got inside the jeep. We drove into Kinglake and then the front came through – well, the fires came through Kinglake. We sat there until the following morning when I went back home and went back to the, yes, the embers of the house.
Mr Hansell then confirmed that the house was completely destroyed by the fire.
When it was put to Mr Hansell that his and his wife’s escape was a highly traumatic experience, he agreed it was. Mr Hansell also said that he and his wife had grief counselling following that experience and that they saw a psychologist. Mr Hansell said he did not go back or further sessions with the psychologist although his wife went back a few times for counselling. Mr Purcell also pointed out to Mr Hansell that he went back to his General Practitioner, Dr Johnson, a few times.
When asked by Mr Purcell whether he believed he might have died in the Kinglake bushfire, Mr Hansell said: Yes. I did at one stage believe I was going to die.
Mr Purcell put to Mr Hansell that the only reference to PTSD in the context of a war setting appears to be around about 2011. Mr Hansell agreed with that statement. Mr Hansell also agreed that he had not said anything to any doctors about the three incidents he described occurred in South Vietnam prior to 2011.
Dr Lester A Walton, a psychiatrist, examined Mr Hansell on 4 September 2014 and provided a report dated 23 September 2014. This report was commissioned by the Department of Veterans’ Affairs. He was not cross-examined at the hearing.
According to Dr Walton, Mr Hansell recounted the so-called simulated attack on Jeparit by the Cobra helicopter gunships and described them as coming out of the sun without warning. Dr Walton recorded Mr Hansell’s reaction as being that he was very frightened and thought he was going to die. Mr Hansell said that thereafter: I freak out when he hears the sound of helicopters. Dr Walton reported that Mr Hansell was afflicted by ongoing anxiety and depression and that it was particularly the sound of helicopters which generate anxiety but there was a background of more generalised non-specific anxiety which is present most of the time.
Mr Hansell also recounted the incident where the ship’s alarm sounded and when he looked up his saw a large low-flying aircraft without lights. Apparently Mr Hansell told Dr Walton that his main fear was that the aeroplane might crash into the ship but he felt as if he was under attack. Mr Hansell also apparently recounted the visit to the local hospital where he observed a number of wounded being brought in and he was asked to leave. He described the incident as distressing.
Mr Hansell told Dr Walton that in mid-2013 he participated in the post-traumatic stress disorder course at the Repatriation Hospital. He said he developed a better understanding of these problems and learned strategies where he could feel calm but overall his anger seemed to increase, at least temporarily. Since May 2012 Mr Hansell had been under the care of his treating psychiatrist Dr Collier and they met every six weeks.
Mr Hansell described what he said was a serious disruption to their household with the Black Saturday bushfires. Their house was destroyed. They lived in a flat at Ringwood between February 2009 and August 2010. About that incident, Dr Walton said:
Mr Hansell is inclined to make light of this potentially psychologically traumatic experience, in particular, he insisted that he has no troublesome nightmares nor flashback memories of the incident.
In his opinion, Dr Walton said Mr Hansell provided a history of events which he certainly perceived to be intensely anxiety-provoking, and the symptom profile, including ongoing distress when exposed to reminders; insomnia but without nightmares; a hyper startle response; interpersonal irritability; and avoidance behaviour, was sufficient, in his opinion, to make a diagnosis of post-traumatic stress disorder. However, Dr Walton made it clear that at no stage objectively was Mr Hansell actually at risk of harm or death regarding the incidents which occurred in Vietnam.
Dr Walton explained there needed to be a judgement as to how intense his fear may have been and he made it clear he was relying on Mr Hansell’s account in that regard. A similar observation was made in relation to Mr Hansell’s claim regarding viewing critically injured casualties. Dr Walton concluded by saying:
In conclusion, while, from a clinical perspective, there does seem to be a causal link between Mr Hansell’s experiences in Vietnam and the development of his post-traumatic stress disorder, whether or not the Statement of Principles is met is less clear.
It is not immediately relevant to the causal hypothesis as such but, in my opinion, Mr Hansell’s having to live with his unwell wife for so many years and the specific incident of the Black Saturday Bushfire with immediate implications for Mr Hansell and his family, do amount to significant aggravating factors.
In coming to a conclusion about the diagnosis of PTSD, I am not required to determine whether the events described by Mr Hansell in fact occurred in the way in which he claimed they did. Assuming for these purposes that the events occurred, I am merely required to assess whether the symptoms identified by the psychiatrists who have examined Mr Hansell establish, on the balance of probabilities, the diagnostic criteria for PTSD as set out in DSM IV or V.
Criterion A of the diagnostic criteria in DSM IV requires the person to have been exposed to a traumatic event in which both of the following were present:
1. 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
2. the person’s response involved intense fear, helplessness, or horror.
The history given by Mr Hansell to Dr Collier included the three incidents referred to above which occurred in South Vietnam as well as the Black Saturday bushfires of 7 February 2009. Dr Collier was of the opinion that the three experiences in South Vietnam, particularly the simulated air attack by the Cobra helicopters would meet Criterion A relating to PTSD. As for his experience in the course of the bushfires, Dr Collier said in his report it was important to consider the possible impact of that event, but that the history obtained indicated he was suffering from PTSD prior to the bushfires.
It is difficult, with respect, to understand how Dr Collier arrived at that conclusion. His view was based solely on what was told to him by Mr Hansell and there was no evidence that he interviewed or attempted to interview any family members or other persons who may have worked with Mr Hansell in the course of a lengthy period of work after leaving the Navy. As the introduction to DSM IV states, evidence from family members and third parties is often necessary to make a diagnosis of PTSD. That is particularly so regarding problems with day-to-day functioning where a clinically significant impairment needs to be established.
Dr Collier had no evidence before him that prior to the Black Saturday bushfires, Mr Hansell had sought any form of medical assistance for PTSD. There was no evidence that Dr Collier obtained a history from Mr Hansell regarding his past depression and anxiety. In fact in cross-examination Dr Collier agreed he was unaware of long-standing problems Mr Hansell had with depression.
Dr Collier was unaware of Dr Seabridge’s report of 23 May 2005. Mr Hansell made no mention whatsoever of the events preceding the Black Saturday bushfires, particularly the stressors he has now relied on in the course of this application. That is despite having lodged an application for compensation related to anxiety and depressive disorder. In fact Dr Collier admitted he was unaware that Mr Hansell had been to see any other psychiatrist. Of considerable concern is the fact that Dr Collier said that he enquired about that at the time he interviewed Mr Hansell but Mr Hansell did not give him that history. The reasonable inference is that Mr Hansell deliberately withheld that information.
By way of distinction from the events preceding the Black Saturday bushfires, following that event, Mr Hansell sought medical assistance as recorded by Dr Johnston in a prolonged consultation which took place on 13 February 2009 at the Tyner Road Medical Centre. The evidence about that event supports the Criterion A descriptions regarding PTSD.
The problem in this case is that Dr Collier agreed he had not seen the clinical notes or the report by Dr Johnston regarding the effect of the Black Saturday bushfires on him. Regardless, Dr Collier was satisfied that the history he obtained from Mr Hansell prior to the Black Saturday bushfires was sufficient for him to be satisfied there were post-traumatic symptoms after the Vietnam experiences. When asked which symptoms concerned him, Dr Collier referred to irritability and sleep problems. When Mr Purcell suggested to Dr Collier that those symptoms were not connected to PTSD, Dr Collier agreed.

Additionally, Dr Collier did not refer to any evidence other than the history given to him by Mr Hansell. With respect to Dr Collier, that appears to be an

inadequate foundation to make the diagnosis he made. Dr Collier also agreed that he was not able to judge the objective history of the stressors described by Mr Hansell.
Dr Kaplan’s report suffers from similar problems to those I have referred to above. He was not provided with the clinical notes which referred to Mr Hansell having serious difficulties in coping following the bushfires. In his examination-in-chief Dr Kaplan said that in Mr Hansell’s case, there wasn’t an actual threat to life but instead described a range of symptoms which Dr Kaplan believed fulfilled the diagnosis of PTSD. Although Dr Kaplan was aware of the Black Saturday bushfires and the fact that Mr and Mrs Hansell were in danger during the fires, he appears to have discounted any impact because Mr Hansell told him he did not experience any intrusive thoughts about the event.
However, in the course of cross-examination, Dr Kaplan admitted that he did not have access to the clinical notes when writing his report. Furthermore, Dr Kaplan made no independent enquiries of any family members or work colleagues regarding the symptoms described by Mr Hansell or his response to the bushfires. In addition, he was not aware that Dr Seabridge had examined Mr Hansell and written a report in 2005.
There were also a number of other aspects of Mr Hansell’s history of which Dr Kaplan was unaware. Dr Kaplan was unaware that Mr Hansell had been denied the opportunity to become a clearance diver and that he resented that and was very angry for many years. Dr Kaplan was unaware of Mr Hansell’s wife’s serious ill-health during his naval service and that he had several compassionate postings including a compassionate discharge. Dr Kaplan was unaware that Mr Hansell at one stage complained of possible exposure to radiation as a result of his naval service off the Monte Bello islands where nuclear tests were conducted and that he was worried about that. He was unaware that Mr Hansell and his wife suffered the loss of their home in all their belongings in the bushfires, involving his escape which was described by his General Practitioner as VERY lucky.
Dr Kaplan made it clear that he based his diagnosis only on the symptoms and events described to him by Mr Hansell. Although Dr Kaplan in his examination-in-chief explained that the DSM IV and DSM V guides were not to be used in a cookbook fashion, that is, not to be followed slavishly but rather to make a diagnosis on the basis of clinical judgement, with respect to Dr Kaplan, the evidence indicates he failed to observe his own caution.
Like Dr Collier, Dr Kaplan relied solely on statements made by Mr Hansell regarding the events which took place and the symptoms he subsequently experienced. Dr Kaplan did not provide an explanation for Mr Hansell’s failure to earlier describe symptoms which appear to have been first observed after the Black Saturday bushfires.
It appears to me that Dr Kaplan should have at least questioned Mr Hansell’s wife about any observed symptoms. DSM IV and V require that there be clinically significant impairment or distress associated with the symptoms, which could only be established by those who have closely observed Mr Hansell. As the DSM guide states, a diagnosis of a mental disorder in these circumstances is an inherently difficult clinical judgement.
With respect to Dr Kaplan, the diagnosis made of Mr Hansell’s PTSD is based solely on what he was told by Mr Hansell. That is not a sound basis for making such a diagnosis. Furthermore, the diagnosis was made without a full and accurate history given by Mr Hansell. It cannot be given much weight.
Dr Walton also based his report essentially on what he was told by Mr Hansell regarding the three incidents which occurred in South Vietnam, as well as a statement that limpet mines were found attached to the Jeparit on its first trip to South Vietnam. This incident was not recounted to any of the other psychiatrists who examined Mr Hansell. Dr Walton had no basis for examining the so-called limpet mine incident as Mr Hansell did not rely upon that event as a stressor giving rise to his claimed PTSD. While there is no need for me to make a finding regarding whether that incident occurred, I simply note that the Report of Proceedings relating to HMAS Jeparit on the two trips to South Vietnam where Mr Hansell was a crew member record no such incident.
In fact, the official history of Australia’s involvement in South East Asian conflicts recorded in the text titled Up Top refers to the operations of Clearance Diving Team 3. That record indicates that on 28 March 1967, divers from CDT 3 cleared the Australian ship Jeparit when it came into harbour in the outer harbour of Vung Tau. It does not state that any mines were discovered. The reason I mention this is that it is not uncommon in these cases to find veterans recording incidents which were told to them, but of which they had no evidence.
Despite only having Mr Hansell’s account of the incidents which he said caused him serious stress, and a description of the symptoms he claimed to experience, Dr Walton found there to be sufficient to make a diagnosis of PTSD. Dr Walton relied on Mr Hansell’s perception that he was actually at risk of harm or death but added that there needed to be a judgement as to how intense his fear may have been because he relied only on Mr Hansell’s account. For reasons which remain unexplained, no other witnesses gave evidence to Dr Walton regarding any observed symptoms. Significantly, Mr Hansell said that he underwent a course at the Heidelberg Repatriation Hospital for PTSD. About that course, Mr Hansell said:
It was a weekdays, you know Monday to Friday and we – and I think for two of those days the wives attended, or could attend if they wanted if they could, and that went for three months, yes.
Despite what Mr Hansell said about the PTSD course at Heidelberg Repatriation Hospital, I had no evidence before me from his wife or any records produced as a result of his attendance at that course. While I accept that Mr Hansell subsequently gave evidence about his wife’s mental health problems and poor memory, it is not obvious from the evidence that she could not have given an account of behavioural problems she noted in her husband.
The Black Saturday bushfires event was simply described by Dr Walton as a serious disruption to the Hansell household. Dr Walton said that Mr Hansell was inclined to make light of what he described as a potentially psychologically traumatic experience and that he had no troublesome nightmares or flashback memories of the incident. For unexplained reasons, Dr Walton did not refer to the Tyner Road Medical Centre clinical notes, particularly those consultations with Dr Johnston following the bushfires. Respectfully, it would be incorrect for me to place any significant weight on Dr Walton’s report and diagnosis.
The final matter for concern is the fact that Mr Hansell made no mention whatsoever of the three incidents he now relies on as the causal factors regarding his development of PTSD to Dr Seabridge in 2005. In his evidence in chief Mr Hansell was asked why he had difficulties with his sleep. He responded: Just memories because I lie there and I just think back to these incidents [the events while in South Vietnam] – this happened. When asked when he first started having problems with this sleep, Mr Hansell said it occurred in the 1980s. When asked about how he felt during daytime hours, Mr Hansell said he was generally okay unless he heard helicopters. If this was a genuine response as described by Mr Hansell, it raises even more serious questions as to why this was not mentioned to Dr Seabridge in 2005.
Although Mr Hansell said in his evidence-in-chief that he first experienced anger in the mid-1970s and that he would get very angry with people for little or no reason, he clearly also expressed his anger problem to Dr Seabridge in 2005. Mr Hansell told Dr Seabridge that his anger problem arose when he was given the job of Radar Plotter, which he hated, and he became so angry and unhappy he was unable to study for the VCE exam. That was well before the 1970s.
Mr Hansell in his evidence-in-chief also described being easily startled. He said if a person suddenly appeared next to him he would literally jump and that was becoming worse. When asked when he first noticed that, he said it was in the late 1990s or maybe in the early 2000s. Given that Dr Seabridge assessed Mr Hansell for his claim regarding anxiety disorder or depressive disorder, there was no logical explanation why this was not mentioned at that time.
Mr Hansell also said he did not read books about Vietnam or about war generally. Yet, his evidence regarding the description and identity of the helicopters, and in particularly their armaments, to which I will refer presently, was so precise that this could not have been observed in the very brief seconds which appears to have been the duration of that event, particularly if at the same time he felt in fear of his life.
In his examination-in-chief, Mr Hansell was also asked about his current treatment for PTSD. He said he was taking the drug moclobemide. According to MIMS, moclobemide is an antidepressant used to treat major depressive disorders. The clinical notes from the Tyner Road Medical Centre record Dr Johnston seeing Mr Hansell on 12 April 2003 where she described 25 years intermittent very low mood and that, at the time of examination, Mr Hansell was very depressed. Dr Johnstone described Very depressed feelings out of the blue that lasts for weeks… Triggered usually by other people’s actions or words. She gave Mr Hansell a prescription for cipramil, which is also an antidepressant, described in MIMS for use in cases of major depression. The diagnostic criteria set out in DSM IV regarding PTSD make no mention of major depressive disorder.
In cross-examination Mr Purcell suggested to Mr Hansell that the reason he did not mention to Dr Seabridge in 2005 that he had any effects following his operational service in South Vietnam was because he had no symptoms. Mr Hansell replied: In hindsight I would say that’s incorrect, but at the time I thought it was correct. Mr Hansell expanded on that answer saying he did have other stresses but did not recall mentioning anything to Dr Seabridge, otherwise Dr Seabridge would have written them down. Nevertheless, Mr Hansell said he certainly had them.
With respect to Mr Hansell, his statement that at the time of examination by Dr Seabridge, he did not think he had any other symptoms but that in hindsight, he believed he had, makes little or no sense. If he had the symptoms he described above, there can be no question he would have been aware of that the time he saw Dr Seabridge. They were likely to be relevant to his claim at that time.
Given the problems I have described above with the evidence regarding a diagnosis of PTSD, it is with considerable caution that I find Mr Hansell either has not developed PTSD or, if he has, he developed PTSD following the Black Saturday bushfires.
In the event that I am wrong about the diagnosis, I should go on to determine whether, if Mr Hansell developed PTSD prior to the Black Saturday bushfires, that condition was war-caused.
DETERMINING WHETHER AN INJURY OR DISEASE IS WAR-CAUSED
Where a veteran has rendered operational service, as in Mr Hansell’s case, the standard of proof is that set out in s. 120 of the VE Act. Relevantly, it provides:
(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 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.
Section 9 of the VE Act deals with war-caused injuries or diseases. Insofar as it is relevant in this case, it provides:
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by veteran shall be taken to be a war-caused injury, or a disease contracted by 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;…
In other words, there need not be a direct consequence relationship between the occurrence and the disease contracted by the veteran. It may be an event or series of events with a latent or delayed consequence in which the onset or development of the disease is not manifested until a later date (see Repatriation Commission v Keely (2000) 98 FCR 108 at 15).
Bearing in mind the standard of proof provision, I am required to consider the whole of the material before me when determining whether there is a reasonable hypothesis connecting Mr Hansell’s PTSD with the circumstances of the service he rendered. Section 120 (3) provides:
(2) In applying subsection (1) or (2) in respect of the incapacity of the person from injury or disease, or in respect of the death of the person, related to the service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient grounds for determining:
(a)that the injury was a war-caused injury or a defence-cause 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.
There is nothing in the provisions set out in the VE Act which entitles the Repatriation Commission to presume that an injury suffered by a person is a war-caused injury or defence caused injury (s. 120 (5)).
Since the introduction of the Statement of Principles (SOPs), when dealing with claims made on or after 1 June 1994 that relate to operational service rendered by a veteran, the reasonableness of a hypothesis must be assessed by reference to the SOPs where such an SOP has been made. Relevantly, s. 120A(3) 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 the 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.
When determining whether the material before the Tribunal discloses a reasonable hypothesis, it is important to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the assumption of its truth. That being the case, there is no place for fact-finding in the process of determining whether the hypothesis is reasonable. I am required only to look at the whole of the material and assess it against the factors which must be present as indicated by the relevant SOP for the causal connection to be made. Whether the facts establish the connection is the last step in this process.
Section 196B(2) of the VE Act deals with the determination of SOP’s. Relevantly, it provides:
(2) If the Authority 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:
(a)operational service rendered by veterans;
…
The Authority must determine a Statement of Principles in respect of that
kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by the person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, death or disease of that kind with the circumstances of that service.
The expression related to service is explained in s.196B(14) in the following way (emphasis in original):
(14) A factor causing, or contributing to, and injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)It was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person;
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
…
THE EXISTENCE OF A REASONABLE HYPOTHESIS
As I have already indicated, for the purposes of this analysis, I will assume that Mr Hansell has developed PTSD. It appears from the documents lodged in accordance with s. 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) that Mr Hansell’s claim for a pension based on PTSD was lodged on 30 July 2012.
The SOP concerning PTSD at the time he lodged his application with the Department of Veterans’ Affairs was Instrument No. 5 of 2008. That SOP was amended by an Amendment SOP, Instrument No. 19 of 2014, which came into effect from 19 December 2013. SOP No. 5 as amended was revoked by Instrument No. 82 of 2014 which came into effect on 22 September 2014.
SOP No. 5 of 2008 describes PTSD as a psychiatric condition meeting the diagnostic criteria derived from DSM IV-TR. By way of distinction, SOP No. 82 of 2014 describes PTSD as a psychiatric disorder which meets the criteria derived from DSM V. There are significant differences between the two SOPs. In those circumstances, the Full Court of the Federal Court of Australia decisions in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321 are relevant.
In effect, the Full Court in Keeley explained the application of the SOPs under the VE Act in such circumstances. Lee and Cooper JJ said, at 122 – 123:
The subsection [120A (2)], in combination with s 196B, purports to limit the right to have a claim determined under the Act by restricting the material relevant to such determination to material that is relevant to the contents of a Statement determined under s 196B. The provisions do more than clarify the meaning of the terms in

s 120 (3) and how they are to be applied. They purport to restrict the operation of s 120 (3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgement of a claim, to have the claim determined under the Act by the Commission, was “affected” accordingly.
…
Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision has been made, is to be conducted as if the former Statement had not been revoked.

The Full Court in Gorton upheld the decision in Keeley. Although all three judges in that case (Heerey, Emmett and Allsop JJ) gave individual reasons, they were in agreement. The result is best summarised by what was said by Allsop J at 336 where his Honour said:
If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SOP, the SOP current at the date of the Commission’s decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SOP, the Tribunal is of the view that the claim should be refused, it should not do so without assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SOP. This is not a right of “election”. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley.
Following what was said by the Full Court in Gorton, I should first apply the current SOP, being No. 82 of 2014, concerning PTSD. The important distinction between that SOP and its predecessor is that the criteria for establishing PTSD and its relationship with the service rendered by veteran are based on DSM V and are significantly different to those in DSM IV. Criterion A of the DSM V provides:
A.    Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i)     directly experiencing the traumatic event (s);
(ii)    witnessing, in person, the event(s) as it occurred to others;
(iii)    learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or
(iv)   experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related; and…
The three grounds relied upon by Mr Hansell need to be examined in some detail to determine whether Criterion A can be said to have been reasonably satisfied. I have already referred briefly to what Mr Hansell told Dr Collier occurred.
The first incident which Mr Hansell said he experienced in South Vietnam which was traumatic was what he described as a simulated attack by Cobra helicopter gunships on the Jeparit while it was anchored in Vung Tau harbour awaiting a berth at the pier where it could offload its cargo. Mr Hansell said he was on lookout duty at the time. In his examination-in-chief, Mr Hansell described the event this way:
… Well, prior to seeing anything I heard helicopters and tried to locate them, see them – see them and…
Yes?… And I realise they were in the sun. Or when I say in the sun, they were in front of the sun, between me and the sun, and they flew in. I noticed them when they came out and went over the ship when they came out of the glare of the sun and went over the ship and at that time I honestly thought that I – I thought that all they had to do was hit the ship and I would be dead. And I thought they would because we were a sitting target.
When they came out of the sun, did you see any weapons?… When they came out of the sun, yes, they were quite distinct. There are very narrow helicopter and they have rockets either side of the few is large and they have – I think it’s like – I would call a Gatling gun. It’s a machinegun type and they had those attached to the fuselage.
…
And you said that you thought you were under attack?… Yes.
Can you say why you thought that?… I could see no reason why anyone would fly out of the sun at the ship. It was as simple as that. I thought the ship was under attack by these helicopters.
… And you said you thought you were under attack. What did that make you feel when you’re standing there looking at that?… Well, I thought I was going to die. I was horrified. It was – yes, I thought I was going to die. I was scared. Or more than scared, I was fearful for my life.
When Mr Hansell was asked how many helicopters come out of the sun towards the ship approximately, he answered: I think there were approximately four. When asked what he did after his saw the four helicopters, Mr Hansell said:
Well, after they flew over, and they hadn’t released any rockets or done anything, I suppose the realisation must have been that they were friendly.
The second incident recounted by Mr Hansell was that of a large low-flying aircraft which occurred one evening. In his witness statement which was taken into evidence Mr Hansell said:
As noted in the Veterans’ Review Board decision, the “low-flying aircraft” incident occurred in the evening when it was dark. I went to my post as Port lookout when the alarm sounded. I heard the sound of the aircraft and then saw it flying at low altitude parallel to, and very close to, the port side about vessel and (like the chopper gunships incident) was immediately in fear for my life as well as the lives of the rest of the Ship’s company.
In his examination-in-chief Mr Hansell described the incident this way:
… So, we were in the warzone but exactly where we were, we were off South Vietnam.
Yes?… And I was in the mess and all of a sudden a loud bell, klaxon went, a loud sound, and I went to my action stations, which was the Port lookout, and I went up there and heard the plane. I can remember talking to somebody about the plane. I can remember talking to somebody about the plane which we couldn’t see but could hear and then a short time later a very low-flying aircraft, American, with no lights flew – look it would have to be the height of the superstructure, which is not very high at all at sea.
… When you saw the plane did you believe it was American or no it was American?… Before I actually saw the plane I didn’t know where it is. It could have been anything, yes, and without lights, well…
And at what point did you appreciate that it was American?… When I saw the plane fly by and saw the insignias.
And so before the plane flew by and you saw the insignia, what did you think was happening?… Before I saw the actual plane I thought we were in imminent fear of being attacked.
When Mr Hansell was asked in what circumstances the ship would make a call for action stations, he responded that when there was a fear that there might be a danger of an attack. Mr Hansell also said:
What did that make you feel?… Well, because we were loaded with ammunition I felt that again if we were attacked by a plane we would be sitting ducks and I would be killed instantly.
Mr Hansell said he thought the plane would attack the ship and fire rockets or drop a bomb on it.
The third incident described by Mr Hansell involved a visit to a hospital in Vung Tau. While having a drink at the hospital, Mr Hansell said:
And then the hospital was – I say the hospital was attacked. There was shelling relatively close to the hospital and it wasn’t long after that that I recall casualties coming into the hospital…
… I saw people on stretchers being brought in to the ward.
… Well, it was apparent that they were hurt obviously and they’ve been under attack. There was blood but – a lot of blood. It was very – yes, it was very distressing, yes. There was [sic] people being brought in with various – what I believe to be various amounts of injury.
Mr Hansell was asked to describe the injuries and he mentioned some were slightly injured but some were very badly injured.
In my opinion, the events as described by Mr Hansell while on operational duty in South Vietnam are not upheld by those matters described in Criterion A of DSM V. The Cobra gunships incident and the low-flying aircraft incident did not expose Mr Hansell to actual or threatened death or serious injury. As I understand that criterion, the expressions actual or threatened death, serious injury… and directly experiencing the traumatic event… require an objective analysis of the events. While the description given by Mr Hansell, which is necessarily subjective, indicates he perceived he was under threat of death or serious injury, such a subjective impression is not upheld by Criterion A.
The same conclusion must be drawn regarding the witnessing of casualties being brought into the hospital. Criterion A derived from DSM V requires personal witnessing of the event as it occurred to others. Mr Hansell did not witness the casualties receiving serious injuries.
Therefore, adopting the sequential approach described by the Full Court in Gorton, I should examine the SOP which was in effect at the time the Commission made its decision in 2012. In other words, I should have regard to SOP No. 5 of 2008 concerning PTSD.
Criterion A in the 2008 SOP is derived from DSM IV. It provides:
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…
The traumatic event in this SOP includes the words or was confronted with; being words which are not included in Criterion A from DSM V. This expression was considered by the Full Court of the Federal Court of Australia (Black CJ, Weinberg and Selway JJ) in Woodward v Repatriation Commission (2003) 131 FCR 473. The Court said, at 495:
In any event, as a matter of ordinary usage, to be “confronted” with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”. This is no less the case when the confronting the event is one involving death or serious injury.
Given the broad interpretation which the Full Court accepted should be given to the expression was confronted with, and that Mr Hansell said he experienced fear for his life, which may reasonably be interpreted as meaning he experienced intense fear, Criterion A appears to be satisfied.
Criterion B of the DSM IV diagnostic criteria provides that the traumatic event is persistently re-experienced in one or more of the listed ways. Criterion C provides that there is persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, not present before the trauma, based on a list of indicia.
Dr Collier was of the opinion that criteria B 4 and 5 applied to Mr Hansell. Dr Collier also found that Mr Hansell satisfied criteria C 2, 4, 5 and 6; D 2, 4 and 5 and that the duration of the disturbance was more than one month causing clinically significant distress or impairment in social, occupational or other important areas of functioning.
Clause 5 of SOP No. 5 of 2008 requires that at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. The relevant factor in this case appears to be factor 6(a), that is, experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder. A category 1A stressor is defined in the SOP as follows:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening events;
(b)being subject to 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;…
Mr Hansell described the Cobra gunships and the large low-flying American aircraft incidents as being life-threatening. At least that was his subjective impression even if, objectively, those incidents were not life-threatening. Therefore, Mr Hansell satisfies factor 6(a) of the SOP, in that he was exposed to a category 1A stressor before the clinical onset of PTSD.
Accordingly, I find that Mr Hansell’s hypothesis is reasonable. The only remaining consideration is whether I can be satisfied, beyond reasonable doubt, that there is no sufficient ground for finding that Mr Hansell’s PTSD was war-caused.
WHETHER THERE IS NO SUFFICIENT GROUND FOR MAKING A DETERMINATION THAT MR HANSELL’S PTSD IS WAR-CAUSED
The final step in determining whether a veteran’s claimed injury or disease is war-caused is an analysis and findings on the facts. As the High Court of Australia said in Byrnes v Repatriation Commission (Mason CJ, Gaudron and McHugh JJ) (1993) 177 CLR 564, at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.
A careful analysis of the three events relied on by Mr Hansell to establish that his claimed PTSD was war-caused reveals a number of significant problems. Those problems include serious doubt about whether the events occurred as described by Mr Hansell, as well as facts inconsistent with his hypothesis.
The Cobra gunship incident
My first concern is the precise description given by Mr Hansell regarding the type of helicopter that he said performed a simulated attack on the Jeparit on his first trip to South Vietnam on that ship in April 1969. He described them as a very narrow helicopter with rockets on either side of the fuselage and a Gatling gun attached to the fuselage. All of those details were observed in a matter of seconds when the helicopters were coming out of the sun towards the Jeparit in the early morning.
When asked by Mr Purcell in cross-examination whether he knew something about helicopters, Mr Hansell said: No. That question was prompted by Mr Purcell asking Mr Hansell how it was he was able to identify a Cobra rather than any other form of helicopter. Mr Hansell said:
The way I recognised a Cobra is because they are probably the narrowest helicopter that they’ve made, certainly very, very narrow. Not that they’ve made but a military aircraft. It’s possibly under a metre wide and it’s got rockets and guns, and that’s all there is to it. It’s just a very narrow machine built to kill, basically. That’s all it is.
That information was given despite the fact that while the pods housing rockets attached to either side of the fuselage of the Cobra might be apparent to someone familiar with that particular aircraft, the Gatling gun mounting, which from the head-on view appears simply as a rounded dome underneath the nose of the aircraft, would be impossible to see head-on and identify as a Gatling gun. In fact Cobra gunships were armed with two Gatling guns in the pod or, alternatively, one Gatling gun and a grenade launcher. Viewed head-on, with whichever armaments were fitted, there would be no way of identifying that weaponry under the nose of an oncoming aircraft, particularly by a person unfamiliar with that aircraft.
Plainly, although Mr Hansell disputed it, he was either aware of the weaponry attached to the Cobra or he had subsequently investigated the facts regarding armaments attached to the Cobra and their purpose. He could not have made that observation in the circumstances he described and the very brief time frame of the exposure.
Although the Jeparit was a civilian merchant ship, it was crewed by a mixture of civilian and RAN seamen. The Reports of Proceedings, which are prepared by the Commander of an RAN vessel, to were written by the Officer in Charge (OIC) of the RAN detachment on Jeparit who was responsible for the discipline, administration and welfare of the naval personnel embarked. The OIC worked to the ship’s Master and as liaison between the Master and the Navy chain of command. The reports contain significant detail of routine events as well as any events which might be described as out of the ordinary or which have operational significance. For example, the Report for 30 March 1969 states: Leave was granted until curfew time 2300H to the non-duty watches.
The Report of Proceedings makes no mention of any helicopters overflying the ship while Jeparit was anchored in the outer harbour. Given the very mundane and ordinary events which are almost by way of routine included in those reports, an overflight of between one and five (according to Mr Hansell) Cobra gunships would have been a significant event, particularly if they flew directly at the ship and passed over it. Yet there is no mention of any such flyover. Had this event occurred as described by Mr Hansell over an armed navy vessel, such an event would pose a very high risk of lethal response from the ship. That is why one would ordinarily expect such an event to be recorded in the Report of Proceedings. In a theatre of war setting, reporting this event would be critical so as to ensure that those responsible for the flyover were disciplined if such action were required.
I have noted that in the Reports of Proceedings, the times have been written as, for example, 0830K and 0830H. K time is a reference to Kilo time which is a reference to UTC +10 hours. That is, Greenwich Mean Time (GMT), (sometimes referred to as Zulu time) +10 hours. Where the time is expressed simply as 0830H, that is a reference to the local time at the place where the ship was at that time. Local time in South Vietnam was UTC +7 hours. South Vietnam did not apply seasonal time adjustments. I have explained this because I have noted some confusion about whether the time referred to was when the sun was up or down. The local time in Vung Tau when the Jeparit anchored there in March 1969 was 5.30 a.m.
A sunrise and sunset table for March 2014 in Ho Chi Minh City (Saigon) was in evidence. Because the time of sunrise and sunset is a function of seasonal variation, those times would not be significantly different to those in March 1969. The table indicates sunrise to be at 5.52 a.m. local time. Therefore, if Mr Hansell’s recall about the event occurring shortly after Jeparit anchored at Vung Tau, it would have been dark.
The next point is that there was no objective evidence produced to support Mr Hansell’s claim that Cobra gunships were operating in the Vung Tau area at that time. There is available on the Internet ample historical material regarding the Vietnam War and in particular, the deployment of various types of aircraft in various operations. However, Mr Hansell did not produce any such objective evidence despite the fact that he had solicitors acting on his behalf. No explanation was given for such a failure which, if his account of the incident were factually correct, would lend considerable weight to his claim.
Another conflicting fact is that Mr Hansell had been on two prior trips to South Vietnam on board HMAS Sydney. During the Vietnam War, the Sydney was used for carrying troops, weapons and other stores to Vietnam from Australia, anchoring in Vung Tau harbour. Also, being an obviously military ship (in fact a former aircraft carrier), it would have attracted considerable attention from the enemy. Logically, and in accordance with standard procedures for operating in a war zone, those persons responsible for conducting a watch on a ship must have been fully briefed about possible enemy action against them. Otherwise, it would be pointless having them on watch. Despite that, when it was suggested to Mr Hansell in cross-examination that he would have been briefed on possible air activities over Vietnamese waters, he said he was not. That response cannot be correct.

Mr Hansell’s evidence was that he was on the bridge of the Jeparit and he was certain that he was on watch. He described his role as having to look out so that boats didn’t come alongside or anything else. He did not explain what he meant by the expression or anything else.
When asked if he was aware that there was a US air force and army airbase near Vung Tau, Mr Hansell answered: No, I wasn’t. With respect to Mr Hansell, I cannot accept that answer. Mr Hansell had been there on two prior occasions on board a navy ship and must have observed considerable aircraft activity in the vicinity of Vung Tau harbour. The pier, known as De Long Pier, was 2 km from the main entrance to the airbase. Although Mr Hansell said that he only saw a large amount of aircraft activity on his last trip as they were leaving Vung Tau, that is illogical. Mr Hansell also claimed that he was not aware that Allied forces were using helicopters extensively in ground operations. That also cannot be correct given his two previous trips to South Vietnam on the Sydney.
The number of Cobra gunships described by Mr Hansell also varied on occasions when he gave the listener details of the incident. It appears he told Dr Walton that there was a single Cobra gunship which performed a simulated attack on the vessel. Dr Kaplan recorded being told there were three Cobra helicopter gunships attacking the Jeparit. In his evidence at the first hearing, Mr Hansell described the numbers as being four or five. There was no logical explanation for this large disparity. I accept it is possible that the doctors who recorded what was told to them by Mr Hansell may have misunderstood or recorded incorrectly. However, given the precise description given by Mr Hansell of the weapons carried by the Cobra gunship or gunships which he saw, that explanation seems highly unlikely.
There is also, in my opinion, another fact which is inconsistent with Mr Hansell’s claim of having developed PTSD prior to the Black Saturday bushfires. While he claimed that his experiences in South Vietnam left him with symptoms which caused clinically significant distress or impairment in social, occupational or other important areas of functioning, he made no mention of any such symptoms when examined by Dr Seabridge for the purposes of an earlier claim for compensation under the VE Act.
Dr Seabridge clearly examined Mr Hansell in respect of his claim for anxiety disorder or depressive disorder, both conditions requiring a severe psychosocial stressor as the basis for the claims. Although Dr Seabridge found that a severe psychosocial stressor existed, not a single mention was made of any of the three incidents referred to for the purposes of Mr Hansell’s PTSD claim.
I should also add that in his cross-examination, Mr Hansell was asked whether he had mentioned the Cobra gunships incident to any other person. He said he did, to his wife and friends. As I have already indicated, Mr Hansell’s wife did not make a written statement supporting her husband’s case nor did she give evidence at the hearing. The same can be said of his friends, who were not named.
When asked whether his wife might be able to provide a statement for the purpose of his claim, Mr Hansell simply answered: No. He provided no further explanation at that time. However, on the following day in re-examination Mr Hansell was asked questions about his wife’s state of health. Mr Hansell said his wife suffered from depression as well as memory loss although she did not have Alzheimer’s disease. He also said his wife tended to deny things which have happened in the past, which actually happened, but if she could not recall, she would deny that they had happened. Mr Hansell also said his solicitors did not suggest his evidence could be improved by obtaining corroboration. I am concerned by this evidence because on the previous day, when Mr Hansell was first asked the question by Mr Purcell in cross-examination, he did not attempt to give an explanation for failure to call his wife to give evidence in support of his claim or make a statement.
On the basis of the concerns I have raised above, I find that that the factual foundation of this particular hypothesis has been disproved beyond reasonable doubt and that facts relied upon to support the hypothesis are not true.
The American aircraft fly-by
Mr Hansell’s second trip to South Vietnam on board the Jeparit concluded on 8/9 May 1969. The Report of Proceedings records that the Jeparit arrived at Cam Ranh Bay at 0930K Thursday 8 May 1969. The ship completed unloading by 1200K and then proceeded to Vung Tau. It anchored in the roads (outer harbour) at 0230K on Friday, 9 May 1969. That would have been 2330 hours on Thursday local time. Therefore, the entire trip from Cam Ranh Bay to Vung Tau occurred in darkness.
While Mr Hansell’s account of this incident accords with the timing I have set out above, including the fact that the entire journey from Cam Ranh Bay to Vung Tau was made in darkness, the description of the incident raised by Mr Hansell raises considerable problems.
The first is that Mr Hansell said that when the klaxon sounded, he went to his Action Station, which he said was the port lookout. Bearing in mind that this was a civilian cargo vessel and not a military ship, which is necessarily armed, one should properly examine why this description was used by Mr Hansell. In fact, Mr Purcell did so in his cross-examination. He suggested to Mr Hansell that if the ship was not following naval protocol, it would not have been having practice action stations at all. Mr Hansell answered by first stating it was not practice. He then said:
And, secondly, I heard it go off and I went to my station, which was the port look-out.
The problem with this answer is that logically, the port lookout station would already have been manned by whoever was on watch. Just why Mr Hansell was required to also attend that station remained unexplained saved for this evidence given by Mr Hansell in his evidence-in-Chief:
So, that you go to where everyone knows where you are and you can be told what to do by the officers.
With respect to Mr Hansell, this seems to conflate the procedure adopted on RAN ships with those of merchant ships. The Jeparit was an unarmed merchant vessel and in the event of an attack, its crew would have been powerless to do anything.
Furthermore, when asked where he was at the time the klaxon sounded, Mr Hansell said he was in the mess. He gave no explanation regarding what he was doing there at around midnight. He said that the mess was the general area where the crew would eat and gather. It was above the deck where his living quarters were situated. Again, logically, if Mr Hansell was not on duty at that time, he would have been in his living quarters.
There is a further question regarding whether the ship was, at that time, within the war zone which Mr Hansell said was within 100 km off the shore of Vietnam. Assuming he is correct, it is unclear how he established that the ship was within 100 km of the Vietnamese coast because his evidence was that he was not on duty at that time. That fact was not established by any evidence.
Mr Hansell described the event as having taken place in the dark. He also described the aircraft is being large and flying without lights. Mr Hansell’s evidence was that originally he could hear the aircraft but could not see it and then a short time later he saw a very low flying American aircraft with no lights on passing the ship at about the height of its superstructure. He said he recognised it was American because he saw the insignia on the side of the aircraft.
In his cross-examination, Mr Hansell said the insignia consisted of three horizontal stripes in front of a circle. Mr Hansell also agreed that he had run from the mess where the lights were on, up onto the bridge where there was complete darkness. Although Mr Purcell put to Mr Hansell that he wouldn’t have been able to see for a while having moved quickly from a well-lit area into complete darkness, Mr Hansell said he could see. With respect, any person who has come out of a well-lit environment into complete darkness would accept that statement is not correct. It takes a while, possibly one to two minutes, before the eyes become readily adapted to darkness, at least to the degree where they could observe the insignia on an unlit aircraft.
In addition to the fact that logically, it would not have been possible to identify the insignia on the side of the fuselage of the aircraft in a very brief space of time in total darkness as described by Mr Hansell, a serious question arises regarding the height of the aircraft on a night where it was, according to the evidence, dark. Mr Hansell described the aircraft as being at about the level of the superstructure of the ship. That would place aircraft at less than 100 feet above the water. Having had some 20 years of aviation experience as a pilot, I can say unequivocally that no sane aviator would be flying at that height on a pressure altimeter, radar altimeters not having been invented at that stage, in complete darkness. The risk of striking the water in that situation is extremely high. Unless the pressure setting on the altimeter was absolutely correct for the conditions in the area where the aircraft was, the safety of the crew could not be assured.
The Report of Proceedings in respect of the Jeparit on its trip to South Vietnam between 29 March 1969 and 3 April 1969 makes no mention of the claimed low-flying aircraft. Nor does the Report of Proceedings for the period 8 May 1969 to 12 May 1969. Significantly, the event as described by Mr Hansell, being the first occasion on which a general warning was claimed to have been issued to the crew as a consequence of concern about an attack on the ship, would have been recorded in its Report of Proceedings. The Report on the day in question records numerous routine and even mundane events such as guests attending a cocktail party. Again, logically, and in the circumstances where the ship was said to be in the war zone, a low pass such as that described by Mr Hansell by any aircraft would, without question, have been recorded in the Report of Proceedings. Even if it were a practice drill, that would have been the case. I have seen numerous Reports where practise drills have been recorded in detail. On this occasion, there is nothing. The very strong inference to be drawn from that is that the event did not take place as described by Mr Hansell.
Having carefully considered the circumstances of this claimed event, I find that the factual basis for this hypothesis as described by Mr Hansell has been disproved beyond reasonable doubt. Furthermore, there are facts relied upon to support the hypothesis which I have found are not true.
Hospital visit
My experience in determining veterans’ claims discloses that hospital visits appear to be part of the folklore offered by numerous veterans who had operational service in South Vietnam. For that reason, one should always carefully examine the detail described by veteran claiming to have been exposed to wounded soldiers.
According to Mr Hansell, there was no limit on shore leave when he wasn’t on watch and when the ship was berthed alongside De Long Pier. This is contradicted by the Report of Proceedings on the March 1969 trip, which states that leave was granted until curfew time 2300 hours. That is, leave was granted from time to time with curfew limits.
In his evidence given to the VRB on 12 March 2014, Mr Hansell said that he went up to the hospital with a friend. He described that friend as one of the soldiers. He said that the enemy tried to bomb the hospital. He then referred to casualties being brought into the hospital on stretchers. He described being there with this sergeant and they saw the stretchers come in. He then said he went back on board the ship. When asked to describe more details of the casualties being brought into the wards, Mr Hansell said his recollection of the incident was not picture perfect.
In his evidence-in-chief in this Tribunal, Mr Hansell said he got to know a medic from the Army who invited him up to the hospital to have a look and to have a few drinks. Frankly, even if Mr Hansell had befriended an army medic while at Vung Tau, it is a strange place to go for a few drinks. That is particularly so given that the town of Vung Tau, which was replete with bars and nightclubs, was situated between where the ship was berthed and 1 ALSG (First Australian Logistic Support Group) Base where 1 AFH (Australian Field Hospital) was located. In those circumstances, it is inconceivable that Mr Hansell went to the hospital for the purpose of having drinks with his newfound friend, who was not identified.
When asked how he came to befriend the claimed medic, Mr Hansell said in his examination-in-chief:
I can’t recall specifically. Everyone on the Jeparit – when I say everyone, the sailors on-board the Jeparit got to know – or teamed up and made friends with a person we’d do personal favours for them when we’d come back to Sydney.
When Mr Hansell was asked how he got to know the person, he said:
It was just – it just happened. I can’t recall specifically.
Respectfully, it appears Mr Hansell’s memory improved considerably by the time of the hearing of this matter when compared with the evidence he gave to the VRB.
When asked again how he met up with the person, Mr Hansell said that he came on board on the second trip, which I understood to be the May 1969 trip. The Report of Proceedings dealing with that trip reports a ship’s cocktail party being held where representatives from ALSG Field Hospital attended. However, Mr Hansell did not give evidence about meeting the army medic at the cocktail party. Had that been the case, I would have expected Mr Hansell to have recalled that.
In his evidence-in-chief Mr Hansell gave a description of the ward that he was in and a nurse’s quarter in one corner of the ward. He said it was that station where they were having a few drinks. Just as a matter of reality, drinking alcohol in a ward where injured soldiers lay, beggars belief.
In cross-examination, when asked by Mr Purcell how he got to the hospital from the ship, Mr Hansell said he could not recall. He was unable to say how far away from the ship the hospital was. Mr Hansell also said that he was not required to tell anybody where he was going and that, despite agreeing that he was in an area of intense military activity, he was simply able to go to any place wanted without reporting to anyone. Once again, that evidence defies logic.
Mr Hansell then described what he claimed was an attack on the hospital stating that there was shelling relatively close by and it was after that he recalled casualties coming into the hospital. He said he saw stretchers being brought into the ward. That is despite the fact that I had in evidence photographs of the First Australian Field Hospital at Vung Tau taken in 1970 which discloses a triage and resuscitation area in which were a number of trolleys ready to receive patients. Again, logically, casualties would have been brought into the triage area and placed on trolleys where they would have received attention before transfer to a ward. Generally speaking, the ward is where patients are placed for recovery. Shortly thereafter, Mr Hansell said he was asked to leave despite his claim that the hospital remained under attack.
What is perhaps most telling against Mr Hansell’s account of what happened at the hospital is that the official history of Australia’s involvement in that war, described in a text titled Medicine at War states, at 170:
Somewhat surprisingly, as they were rarely if ever in physical danger, support troops based at 1 ALSG in Vung Tau had a consistently higher rate of psychiatric problems and operational soldiers.
The First Australian Field Hospital was of course situated within the 1 ALSG area. The official history of Australia’s involvement in the Vietnam War records that the town of Vung Tau was essentially a beach resort which abounded with bars and nightclubs during the war. It was said to have been used as the rest centre by both allied forces and the Viet Cong. It was regarded as a relatively secure area. Despite there being ample historical evidence available to Mr Hansell and his solicitors regarding the operation of 1 ALSG at Vung Tau, no evidence of any attack on that base was produced by Mr Hansell in support of his claim. Had such an attack occurred, I have no doubt whatsoever that objective evidence could have been produced to support Mr Hansell’s claim.
With respect to Mr Hansell, the evidence I have before me does not establish that he was exposed to seriously wounded casualties while in South Vietnam. In fact, I am satisfied beyond reasonable doubt that Mr Hansell did not visit the hospital at Vung Tau situated within the 1 ALSG area nor did he witness casualties, which he claimed were the result of an attack on the hospital, being brought into the hospital for treatment. There was no objective evidence before me which would support an attack having taken place at the time Mr Hansell claimed he was at Vung Tau.
I find, beyond reasonable doubt, that this event, being one of the bases for his hypothesis regarding his development of PTSD, has not been established.
CONCLUSION
I have found that the evidence before me is insufficient to make a finding, on the balance of probabilities, that Mr Hansell has developed PTSD. I have come to that conclusion reluctantly given that a number of psychiatrists have diagnosed Mr Hansell as having PTSD. In the event that I am wrong and Mr Hansell has developed PTSD, I have found that his PTSD developed after 2009.
Assuming that my findings regarding Mr Hansell having developed PTSD are wrong, I have carefully examined all of the material before me in order to determine whether that material raises a reasonable hypothesis connecting his claimed PTSD with the operational service rendered by Mr Hansell in South Vietnam. Mindful of the fact that a hypothesis is simply a basis for reasoning without the assumption of its truth, I have found that the material discloses a reasonable hypothesis which upholds the factors set out in

SOP No. 5 of 2008.
However, a close examination of the evidentiary material and in particular the accounts given by Mr Hansell of the three incidents he claimed connected the development of his PTSD with his operational service in South Vietnam discloses serious problems with each of those events. Those problems are so serious and irreconcilable with the objective evidence before me that I am satisfied, beyond reasonable doubt, there is no sufficient ground for determining that Mr Hansell’s PTSD was war-caused.
I find that the decision made by the VRB on 12 March 2014 was correct. I affirm that decision.

1. I certify that the preceding 167 (one-hundred-and-sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.

.................[sgd]..............................................
Associate
Dated 11 November 2016

Date of Hearing 5 July 2016

Counsel for the Applicant Ms R Walsh

Solicitors for the Applicant Williams Winter Solicitors

Advocate for the Respondent Mr D Brown

Solicitors for the Respondent Australian Government Solicitor

[2016] AATA 893

11 November 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/1557
Re	Bernard Francis Hansell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	11 November 2016
Place	Melbourne

Date of Hearing	5 July 2016
Counsel for the Applicant	Ms R Walsh
Solicitors for the Applicant	Williams Winter Solicitors
Advocate for the Respondent	Mr D Brown
Solicitors for the Respondent	Australian Government Solicitor