Hartland and Repatriation Commission
[2005] AATA 1270
•20 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/37
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER JOHN HARTLAND Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date20 December 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that generalised anxiety disorder is war-caused – consideration of statements of principles – hearing scare charges from below decks – sighting object in water while on sentry duty – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 20, 120(1), 120(3), 120A and 196A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius[2002] FCA 750
White v Repatriation Commission (2004) 39 AAR 67
Delahunty v Repatriation Commission (2004) 38 AAR 511Statement of Principles Instrument No. 1 of 2000
Statement of Principles Instrument No. 2 of 2000REASONS FOR DECISION
20 December 2005 Mr J Short (Member) 1. Mr Hartland was engaged in operational service in Vietnam on board HMAS Torrens from 16 February 1972 until 3 March 1972. He also performed eligible defence service from 7 December 1972 until 25 December 1974. On 26 August 1999 he lodged a claim for pension in respect of “obsessional and personality disorder”; “solar skin damage”; and “malignant neoplasm of testis”. The Repatriation Commission (the Commission) recorded diagnoses of non-melanotic malignant neoplasm of the skin (face), anxiety disorder, obsessive personality disorder and malignant neoplasm of the testis and paratesticular tissues. The same decision rejected Mr Hartland’s claim for acceptance of these conditions as war-caused.
2. Mr Hartland applied to the Veterans’ Review Board (VRB) seeking review of the Commission’s decision. On 29 October 2002 the VRB affirmed the decision under review. Mr Hartland has applied to this Tribunal to review the decision of the Commission as affirmed by the VRB. By notice dated 10 July 2003 Mr Hartland discontinued his application for review in respect of non-melanotic malignant neoplasm of the skin (face) and malignant neoplasm of the testis and paratesticular tissues. During his opening address, Mr Hartland’s counsel, Mr G Hemsley, discontinued the application for review on the basis of obsessive personality disorder. In these circumstances Mr Hartland’s claim is now confined to a claim for acceptance of generalised anxiety disorder as war-caused.
3. It is common ground that Mr Hartland suffers from a generalised anxiety disorder and based on the evidence I so find.
issues before the tribunal
4. The issue before me is whether generalised anxiety disorder is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
5. It is common ground that if Mr Hartland is successful in his claim, the earliest date of effect pursuant to s 20 of the VE Act would be 26 May 1999, that is a date 3 months prior to the date of lodgement of the original claim.
background
6. Mr Hartland was born on 17 December 1951. He joined the Royal Australian Navy (the Navy) on 3 May 1969 and served until discharged on 25 December 1974.
7. Mr Hartland was posted to HMAS Torrens and performed operational service on that ship in South Vietnam from 16 February 1972 until 3 March 1972. Mr Hartland also performed eligible defence service from 7 December 1972 until 25 December 1974.
8. Mr Hartland asserts, in essence, that certain stressful events occurred during his operational service which caused the condition on which his claim is based. Mr Hartland left open an alternative assertion, that is that he had a pre-existing condition of generalised anxiety disorder, which was aggravated by his period of operational service.
9. Although Mr Hartland performed eligible defence service, there was no contention that a relevant event occurred during that service which could form the basis of a nexus between that service and the claimed condition.
10. The medical evidence before me includes a report of Dr Marty Ewer dated 19 November 1999. That report records ten experiences said by Dr Ewer to have been mentioned by Mr Hartland as stressful experiences which Mr Hartland thought may have affected him. Briefly these experiences can be summarised as follows:
·Unnecessary brutality and aggression by Mr Hartland’s superiors in the Navy exemplified by a boxing instructor, shortly after Mr Hartland joined the Navy, striking Mr Hartland unexpectedly to the face.
·Mr Hartland felt anxious “… when working in the area of radar. He said there was a lot of pressure on him and consequently he worried excessively”.
·Two occasions when Mr Hartland was assaulted by groups of men in Sydney prior to leaving for South Vietnam. On one of these occasions, one of the attackers shouted “kid killer”.
·Feeling anxious and frightened during the time HMAS Torrens was in Vung Tau Harbour. Dr Ewer referred to “a constant scare of divers attaching mines to the ship. Consequently people were raking through the water with hooks and dropping one pound scare charges over the side of the vessel”.
·An occasion in Subic Bay in the Philippines when Mr Hartland and other sailors went out in two vehicles. Dr Ewer recorded Mr Hartland as telling him that the vehicle in which Mr Hartland was not travelling was attacked by Indonesians. At hearing Mr Hartland denied using the term Indonesians. Mr Hartland is said to have told Dr Ewer that everything was stolen from these men and that although Mr Hartland’s vehicle was not attacked Mr Hartland had been frightened and unsettled.
·Dr Ewer recorded another experience as having occurred in Singapore, however at hearing Mr Hartland corrected this statement to say that the experience had occurred in Hong Kong after his period of operational service in South Vietnam. The incident recorded by Dr Ewer is of a man who had shot himself. Mr Hartland was required to stay with the body until it could be taken away. Mr Hartland explained at hearing that the deceased was an Asian man. Dr Ewer records Mr Hartland as having been horrified by the site of the man’s wounds.
·Dr Ewer recorded Mr Hartland seeing “dead bodies floating in Hong Kong Harbour”. Mr Hartland clarified at hearing that on entering Hong Kong Harbour someone had pointed out a floating body and that another body had been seen on leaving Hong Kong Harbour.
·Dr Ewer recorded Mr Hartland as referring to a shipping accident which occurred off the coast of New South Wales some years before Mr Hartland’s operational service or his eligible defence service. Dr Ewer recorded Mr Hartland as saying that he had been frightened in large seas and was horrified to see a number of dead bodies which were caught in a net. Dr Ewer records Mr Hartland as saying that 26 people died in the incident. Mr Hartland clarified at hearing that he had seen parts of a body or bodies in a net.
·Dr Ewer records Mr Hartland as saying that he had felt anxious, frightened and apprehensive during his time in Vietnam and that this was because he knew he was in a war zone. He could see helicopters and gunships “everywhere”.
·The final occurrence recorded by Dr Ewer was of Mr Hartland feeling considerable anxiety when confined to spaces inside the ship particularly when he was in the bow of the ship, because it moved so much.
11. At hearing the only incidents which Mr Hartland’s counsel suggested could form a nexus between eligible service and generalised anxiety disorder were Mr Hartland hearing scare charges from below deck and sighting a floating object and cocking his rifle while on sentry duty later that same day. I note that Dr Ewer did not record Mr Hartland as mentioning the incident in which he cocked his rifle while on sentry duty.
12. These two last mentioned incidents suggested at hearing to have been causative or relevantly aggravating of or to Mr Hartland’s generalised anxiety disorder, were said to have occurred during Mr Hartland’s period of operational service from 16 February 1972 until 3 March 1972 aboard HMAS Torrens in Vung Tau Harbour.
the scare charge incident
13. The first incident relied upon by Mr Hartland was described in evidence as having been preceded by a general feeling of anxiety on entering Vung Tau Harbour in darkness. Mr Hartland said that it had been misty or foggy, but that he had seen lights everywhere and had previously been warned by the captain of HMAS Torrens that the enemy may “throw everything at us”. Mr Hartland said that he woke the next morning to sounds of thumps around the ship. He said that these sounds vibrated through the hull and continued virtually all day. Mr Hartland said that he was unsure what the sounds were. He did not think HMAS Torrens was under attack, but was nevertheless frightened. Mr Hartland said that he did not have a specific recollection of doing so, but probably dressed, made his bunk, showered and then progressed to the forward section of the ship, below deck, in order to perform his first block of duty for the day. Mr Hartland said that the sounds continued and no one told him exactly what they were.
the sentry duty incident
14. Mr Hartland went on to describe how his second block of duty on the first of two mornings in Vung Tau Harbour was sentry duty. Mr Hartland said that he had been posted to the starboard side of the ship and told to look out for divers and to fire at anything approaching the ship. Mr Hartland said that the ship’s boat was circling and trawling shark hooks. He said that he saw something in the water and cocked his rifle. Mr Hartland said that at this point he was relieved of his weapon by an officer. Mr Hartland said that the officer had asked why he had cocked his weapon. Mr Hartland replied that he had been ordered to shoot at anything in the water approaching the ship. Mr Hartland said that neither he nor the officer could at that time identify what was in the water and that Mr Hartland had sworn in expressing his frustration at having been told on the one hand to fire at anything in the water approaching the ship, but then, when he prepared to do so, had been relieved of his weapon. Mr Hartland said that this was the only time he “lost it”.
15. Mr Hartland said that his father had died when he was 8 years of age and that he had been cared for in a boys’ home until he was about 16 years. He said that he thought the Navy would suit him as he was used to discipline and regimentation. Mr Hartland said that in the Navy he was given the nickname “eyes”. He understood that he had been given this nickname because he was able to see or perceive dangers around the ship. Mr Hartland gave as examples, an occasion when he had noted that a rope was about to catch in a pulley and another of noticing that the forward hatch of HMAS Torrens was buckled and required the hatch to be tapped with a hammer in order to close it. The hatch particularly concerned Mr Hartland as he considered it presented a danger if, perhaps in an emergency, sailors were trying to get to the top deck through the hatch and did not have a hammer to open it.
16. Mr Hartland said that initially he had been quite happy in the Navy. He said that he was popular and was elected as the ship’s disc jockey. He also described how he would write amusing poetry about shipboard life. He said however that he got into trouble on some occasions by broadcasting or writing about some of his concerns about the ship’s safety. He referred to one occasion when he had recorded 39 items of safety concern about the ship. Mr Hartland said that he felt that sailors should not be asked to report safety concerns if they were then to be criticised for making those reports.
17. Mr Hartland described feeling generally claustrophobic and anxious. Service records include a number of medical attendances relating to anxiety and claustrophobia. Eventually Mr Hartland was discharged from the Navy as physically unfit. Mr Hartland said that at the time of discharge he had about 7 months left to serve. He said that he was pleased to be discharged and initially worked in civilian life picking fruit and travelling around the country.
18. Mr Hemsley referred to a Naval medical record dated 1 March 1974 where Mr Hartland is recorded to have described feelings of claustrophobia and the condition having been present for “some years”. This document [T4/55] reads as follows:
“For the last 2 years, this sailor has noticed an increasing claustrophobic feeling – breaks into a sweat palpitations and has to escape from crowds or a closed room.
He is forwarded for opinion and treatment please.”
The response after examination by psychiatrist Dr A Bartholomew on 6 March 1974, included the following comments:
“This rating has a few neurotic problems and has adopted an avoidance response. This “claustrophobia” is not of arrested degree and does not interfere with his life and work. He can well cope within the next 13/12 or so of Naval service. He will presumably on discharge, obtain civilian work in open spaces.
His coming marriage will no doubt displace concern over his mild symptoms.
…”
legislative background
19. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
20. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
21. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
22. As Mr Hartland has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
23. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
24. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
consideration
25. The claimed condition of generalised anxiety disorder is the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97] in the following way:
“1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
26. In considering whether there is an hypothesis connecting Mr Hartland’s condition with his war service, and in applying the relevant Deledio (supra) steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
27. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
28. As regards the first step in Deledio, I am satisfied that the material before me points to a hypothesis connecting the claimed condition with Mr Hartland’s operational service. That hypothesis is that the scare charge incident and/or the sentry duty incident resulted in Mr Hartland suffering generalised anxiety disorder or a permanent worsening of that condition. The suggestion is that accordingly that condition is war-caused.
29. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the condition in question. The SoP in respect of generalised anxiety disorder is Instrument No. 1 of 2000 relating to operational service and Instrument No. 2 of 2000 relating to that same condition but in respect of any periods of eligible defence service. It has not been suggested that any earlier SoP in force at the time of the original decision by the Commission was more beneficial to Mr Hartland. The second step in Deledio is satisfied.
30. I now turn to the third step as enunciated in Deledio. This entails determining whether a relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
31. Under clause 4 of Instrument No. 1 of 2000, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the applicant. The two factors which are contended to exist in this case are factors 5(a)(ii) and 5(a)(v):
“…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
…”
32. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
33. There is material before me which points to the clinical onset of generalised anxiety disorder by at least 1 March 1974 [T4/51]. This indicates that the clinical onset of the condition did occur within at least 2 years of the incidents asserted to have caused or clinically worsened the condition.
34. Instrument No. 1 of 2000 defines “severe psychosocial stressor” as:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
35. In White v Repatriation Commission (2004) 39 AAR 67, Spender J decided that the definition of “severe psychosocial stressor” in the generalised anxiety disorder SoP embodied both objective and subjective elements. There must be an occurrence which “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence. In Delahunty v Repatriation Commission (2004) 38 AAR 511 Tamberlin J pointed out that the concept of a man on a Clapham omnibus was inappropriate in the present context. I consider that the objective requirements of the definition should be assessed for the point of view of the perception of a member of the armed forces who is not however idiosyncratic or unduly timid or sensitive.
36. At this juncture I point out that although it was not suggested at hearing that any occurrence during Mr Hartland’s period of eligible defence service was related to his condition of generalised anxiety disorder, I have considered Instrument No. 2 of 2000 in this regard. Factors 5(a)(i) and 5(a)(iv) are in similar terms to factors 5(a)(ii) and 5(a)(v) of Instrument No. 1 of 2000 dealing with operational service. The only relevant difference is that the severe psychosocial stressor referred to in Instrument No. 2 of 2000 is required to have occurred within one year immediately before the clinical onset or clinical worsening of anxiety disorder.
37. In considering whether the material before me is consistent with the relevant SoPs I noted all of the evidence including that provided by psychiatrist, Dr Kalnins. Dr Kalnins’ report dated 1 April 2005 [Exhibit A5] recorded a statement which at least in part was used by Dr Kalnins as a basis for his opinion. It became evident during the hearing that Dr Kalnins had mistakenly considered Vung Tau Harbour to have been mined and that Mr Hartland had been concerned when entering a mined harbour. Dr Kalnins also recorded Mr Hartland as saying, in reference to the scare charges, that he was in the forward part of the ship and heard “thumps and bangs around the hull, I knew something was wrong, some dickhead said you’ll find out soon enough”.
38. In considering the scare charges incident, I note that Mr Hartland was able to dress, shower and breakfast and attend to his duties below decks until about mid-day. I also note Mr Hartland’s indication that he did not think the ship was under attack. Mr Hartland may well have been an individual who was particularly concerned about potential dangers. I do not consider that Mr Hartland’s reaction to the scare charges or an objective consideration of a person in Mr Hartland’s position in relation to the scare charges, forms the basis of a hypothesis raised by the material before me which is consistent with any of the factors in the SoPs, particularly the definition of severe psychosocial stressor contained therein. In these circumstances Instrument No. 1 of 2000 does not uphold the asserted hypothesis connecting the scare charge incident and Mr Hartland’s generalised anxiety disorder.
39. In relation to the sentry duty incident I have noted that Mr Hartland was on sentry duty along with other sailors. I accept his evidence that he saw something in the water which he considered may have been a diver. The object turned out to be a floating log. Mr Hartland was admonished for cocking his rifle. While I accept that such an incident may have troubled Mr Hartland, I do not consider that this incident satisfies either the subjective or objective requirements of the SoPs relating to a severe psychosocial stressor, and consequently in relation to this incident, I consider that the hypothesis raised by the material is not consistent with the relevant SoPs.
40. I consider that the asserted hypothesis is not reasonable and by virtue of s 120(3) of the VE Act I must find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition was war-caused.
Although not pressed at hearing, I also considered Mr Hartland’s period of eligible defence service in relation to Instrument No. 2 of 2000. I was not satisfied that any event occurred during that eligible defence service which satisfied Statement of Principles Instrument No 2 of 2000.
42. For the above reasons I affirm the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Short (Member)
Signed: ...........J Coulthard ..........................................
AssociateDate of Hearing 14 November 2005
Date of Decision 20 December 2005
Counsel for the Applicant Mr G Hemsley
Solicitor for the Applicant Graeme Hemsley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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