Heard and Repatriation Commission
[2004] AATA 773
•23 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 773
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/481
VETERANS APPEALS DIVISION ) Re MICHAEL HEARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member Date23 July 2004
PlaceMelbourne
Decision 1. The decision under review in so far as it decided that the illness suffered by the applicant is Post Traumatic Stress Disorder (PTSD) is affirmed.
2. The decision under review in so far as it decided that PTSD is not war-caused is set aside and in substitution IT IS DECIDED that PTSD was war-caused.
(Sgd) J Handley
Senior Member
VETERANS AFFAIRS – applicant served in Vietnam – exposed to sound of mortar blast and subsequent fear – on guard duty at a tip on base whilst armed and under observation by SAS personnel and felt vulnerable – learnt of death of a friend in combat and was “devastated” – whether “experienced a severe stressor” – discussion of objective and subjective interpretation – conflict in diagnosis – witnesses influenced by SOPs – Benjamin reaffirmed – DSM IV and manner of interpretation and application discussed
Veterans’ Entitlements Act 1986 (Cth) s5D
Statement of Principles Instrument No. 3 of 1999
Statement of Principles Instrument No. 5 of 1999
Benjamin v Repatriation Commission (2001) 70 ALD 622
Benjamin v Repatriation Commission [2001] FCA 522
Budworth v Repatriation Commission (2001) 63 ALD 422
Gerzina v Repatriation Commission [2004] FCAFC 96
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Stoddart [2003] FCAFC 300
State of New South Wales v Seedsman [2000] NSWCA 119
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160
Tame v The State of New South Wales [2002] HCA 35
Re Robertson and Repatriation Commission (1998) 50 ALD 668
REASONS FOR DECISION
23 July 2004 Mr J. Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans Review Board (“VRB”) on 30 January 2001. The VRB then decided to affirm a decision previously made by the respondent on 12 July 2001 refusing his claim for acceptance of the condition of Post Traumatic Stress Disorder (PTSD).
2. The hearing of the application commenced in Eaglehawk on 3 April 2003, resumed in Melbourne on 16 June 2004 and concluded in Bendigo on 14 July 2004. Written submissions were subsequently lodged.
3. Mr Heard gave evidence in Eaglehawk and in Bendigo. Doctors Percival and Walton both medico legal psychiatrists gave evidence. The applicant’s wife and brother gave evidence in Bendigo. Mr Liefman appeared on behalf of Mr Heard and Mr Douglass appeared on behalf of the respondent.
4. Mr Heard was a member of the Australian Army between 20 January 1970 and 15 November 1971. He served in Vietnam between 22 December 1970 and 7 October 1971.
5. Doctor Percival on behalf of the applicant prepared a report dated 6 February 2003, which was filed and exchanged shortly prior to the commencement of the hearing. In that report he was of the opinion that the applicant could not satisfy the Statement of Principle for Post Traumatic Stress Disorder. It was his opinion that the applicant more likely satisfied the diagnosis of either “generalised anxiety disorder” (Instrument No. 1 of 2000) or “depressive disorder (Instrument No. 58 of 1998). The applicant therefore was content to abandon the hypothesis of a connection between service and PTSD and pursue acceptance of either Generalised Anxiety Disorder or Depressive Disorder as being war-caused.
6. Both Instruments have an identical factor relied upon by the veteran namely “experiencing a severe psycho social stressor, within the two years immediately before the clinical onset of anxiety disorder” (save that the “depressive disorder” Instrument refers to “psycho social stressor or stressors”.
7. The definition of “severe psycho social stressor” is identical in each Instrument namely:
Severe psycho social stressor means 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) severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
8. Mr Douglass foreshadowed that by reason of the altered hypothesis, now favoured by the veteran, it was likely that further examination with Dr Walton would be required prior to the resumption of the hearing in order to clarify whether one or both of the alternative diagnosis relied upon by the applicant applied.
michael david heard
9. Mr Heard was born on 21 April 1949 and is presently 53 years of age. He was born in Bendigo and has two older brothers. He was educated initially in Waaia and later in Nathalia, to the age of 14. He and his brothers and his father farmed and managed an irrigated dairy farm at Nathalia. Mr Heard said that he was committed to the farm, had no difficulty with relationships and he idolised his older brother.
10. The applicant said he was conscripted at the age of either 19 or 20 and was initially trained at Puckapunyal and later at Bonagilla and Kapooka. He was trained as a cook and had extensive training also at Watsonia, Seymour and Queenscliff. On 22 December 1970 he was posted to Vietnam as a cook in the 161 Aviation Division based at Nui Dat. He described his main duties as being a cook on base. He worked a 40 hour week, comprising two days on and one day off.
11. On his days off he performed either picket duty or public relations type duties attending a local school. On one occasion Mr Heard recalled that the school was painted “Aviation Blue”.
12. There were three significant events or episodes during service which Mr Heard advanced as constituting a severe psycho social stressor namely picket duties, exposure to the sudden and explosive sound of an artillery mortar and the death of a close friend, Private Niblett.
picket duty
13. Mr Heard said that on three or four occasions during his tour of Vietnam he was seconded to picket duty at a rubbish tip located immediately outside or immediately inside the perimeter fencing of his base. He said that he was required to be positioned in a cleared elevated area under a brightly coloured beach umbrella and was provided with a deck chair for seating. He said that he was a “sitting duck” and also felt as if he was a “decoy”. He felt that he should have been provided with sandbags and a machine gun to resist any attack of which he was in fear. He said the tip area was under guard because Viet Cong or other persons were “scavenging” the tip. His concern during picket duty was the lack of protection and he said that these experiences “played on” his mind. He said that he had not brought these matters to the attention of medico-legal psychiatrists or other persons but had “bottled it up”.
artillery incident
14. Shortly after he arrived on base Mr Heard recalled an occasion where he was walking towards the kitchen in darkness and was about to commence duty. He heard an explosion which he understood was artillery fire and although he was later told that a mortar had been discharged approximately three kilometres away, he recalled that the “earth moved” and he was not then aware whether the mortar was incoming or outgoing. He said he was not familiar with artillery fire before this occasion and had not become familiar with it during recruit training. He recalled that he was very startled and although he felt relieved later when he learnt that the mortar was outgoing, he said that the memory of it remains with him and he also recalled that at the time of hearing the explosion he thought that he could be hurt or injured.
death of private niblett
15. Mr Heard said that he and Private Niblett (Niblett) became close friends during their recruit training. He said they were both in the same company and they interacted together daily. He said that recruit training encouraged bonding between recruits and an inter dependency was established. Mr Heard said that bonding was also a requirement “of being a good soldier”. The applicant said that he and Niblett developed a deep commitment and camaraderie, including discussion of each other’s private lives and families. As an indication of the extent of bonding sensed by Mr Heard, he said that he continues to feel a bond with other service personnel, yet he does not now see them and does not know where they live.
16. Shortly prior to Mr Heard departing Vietnam and returning to Australia, he said he was notified by another service colleague that Niblett had been killed. He said that he had not seen Niblett after the conclusion of recruit training but when he learnt of his death he was devastated. He said he heard that Niblett had been pursuing enemy VC into bunkers and he had been shot and killed. Mr Heard said that he had not known any other persons in his lifetime who had been killed except another person in Australia who had died in a motor car accident. He said he felt bitter and disappointed at having lost a close friend. He said “you don’t get friends like that every day” and his death had had such an affect on him that he explained “that’s the way that I am now”.
treatment
17. Mr Heard said that he was initially referred to Dr Orchard, a psychiatrist for treatment and later he was referred to Dr Ots another psychiatrist for treatment. He said he sought treatment because he needed “help”. He said he did not like Dr Orchard but preferred the treatment with Dr Ots, who helped him preserve his marriage. Dr Ots apparently prescribed medication which Mr Heard described as being “helpful”.
18. In his claim for compensation (T-5, p.9), Mr Heard described his disability as “PTSD” and described the ”signs and symptoms” as “flashbacks, sleeplessness, anxiety attacks and mood swings”. Mr Heard said that these words were his own and were recorded to describe the signs and symptoms that he had experienced.
cross examination
19. With respect to the artillery incident Mr Heard said that he heard the mortar discharging early one morning, when he was walking in darkness towards the kitchen. He did not see the muzzle flash nor was he aware whether the mortar was incoming or outgoing. He said that he was shaken and he initially froze but he did continue walking towards the kitchen and did commence his cooking duties. He was aware that Colonel Church had reported to the respondent that the mortar was discharged approximately two kilometres away from base. Whilst he did not quarrel with that finding, Mr Heard said that he was unable to estimate, at the time that he heard the discharge, the distance of it from base.
20. With respect to picket duties Mr Heard was adamant that the refuse tip being guarded was not inside the perimeter fencing of the base. Mr Heard said that the refuse tip was not within the perimeter boundary and was located at the end of a runway away from units or other accommodation buildings. He said his duty on picket was to disperse scavengers. Mr Heard acknowledged that he performed picket duty only between two and four occasions and then towards the end of his tour of Nui Dat. He also acknowledged that SAS troops were located at the top of a nearby hill overlooking the base and who were not visible.
21. With respect to the relationship with Niblett, Mr Heard said that he was one member of a company of about 60 persons, located in four huts of about 17 persons each. He said that he did not share a hut with Niblett but the members of all four huts interacted and overlapped at both work and when socialising. He said he learnt of the death of Niblett shortly prior to leaving Saigon to return to Australia and he understood that Niblett was to leave at the same time. He said that he was told of Niblett’s death by Michael Cain, with whom he had trained in Australia and who also knew Niblett. Mr Heard said they had all been close friends in Australia. He rejected a suggestion put by Mr Douglass that Cain could not have notified him of Niblett’s death because Cain had been in a transport company and would not have been aware that Niblett had been killed. He acknowledged that the dates and times given in his evidence to the VRB differed to the dates and times that he referred to in his evidence before this Tribunal, however he said that he was told by his advocate at the VRB that he did not need to be “precise”. Mr Heard recalled that Niblett was engaged to be married, that his first name was Ralph, and was known affectionately by a number of persons as “Nibbo”. When asked to describe him Mr Heard said that he was of similar height to himself but he could not remember the colour of his hair, because “he was shaved like all of us”. He said when asked he could “picture him”, but he had not visited his family in Australia.
22. After he returned to Australia Mr Heard returned to the family farm at Nathalia and in 1973 the applicant’s father transferred his interest equally to all three sons. Mr Heard therefore acquired a third interest in the real estate. Mr Heard said that he loved farming but he did commence to drink excessively and by 1983 his marriage was “shaky”. Eventually he sold his interest in the farm because of what he believed to be the “pressure of running it” and moved to Kyabram. He said that he thought his responsibility over the farm had “contributed to the way that I was” which he described as difficulty interacting with his own family members and his excessive consumption of alcohol. Mrs Heard apparently indicated to the applicant that their marriage was at risk unless he sought treatment and reduced his alcohol. Thereafter alcohol was severely curtailed and Mr Heard obtained salaried employment with the intention of giving him “more time to spend with (his) family”.
23. Mr Heard acknowledged that Doctor Percival in his examination had reported that he had:
suffered significant symptomatology ever since his return from Vietnam which for many years he accepted simply as a normal part of his developmental experience whilst Mrs Heard accepted her husband’s behaviour as simply representative of a normal way of being.
Mr Heard also acknowledged that Dr Percival was correct in his finding that his wife contacted the wives of other Vietnam Veterans:
and increasingly realised that her husband’s behaviour and attitudes were in fact abnormal and very similar to those described by her new acquaintances in their husbands as a consequence of which she brought pressure upon Mr Herd to seek medical advice and assistance …..
Mr Heard said that he did not then associate his behaviour with his experiences in Vietnam nor was he influenced by his discussion of his Vietnam experiences with other Vietnam veterans. He said he was influenced by his wife’s observations of him and from what she had learnt from the wives of other Vietnam Veterans. When he began to discuss having flashbacks of Niblett’s death, being a decoy when on picket duty and having dreams of being shot at, he acknowledged that he needed “help”. He said that previously he had “kept most of this to myself”. Indeed he said that he had not communicated most of the adverse experiences in Vietnam to his wife. On reflection Mr Heard said that since he had returned from Vietnam that he was “anxious all the time - day and night”.
24. When the matter resumed in Melbourne it was learnt that the respondent had obtained a report from Mr J M Church, a military historian. Whilst he had provided reports on 14 and 15 January 2003, the additional report was obtained by reason of the evidence of Mr Heard on the first day of hearing. It was submitted by Mr Douglass that the applicant’s evidence on that occasion differed in detail from the evidence that he had given to the VRB and from the contents of a proof of evidence that he had previously prepared. Unfortunately the report of Mr Church was not received until one working day prior to the resumption of the hearing and in those circumstances, Mr Liefman was unable to obtain instructions from his client. It was decided in the circumstances to then hear evidence from Mr Church and from doctors Percival and Walton who were both medico-legal psychiatrists who had been engaged by the parties respectively and who had provided medical reports. Another Bendigo circuit was scheduled for the month following the second day of hearing in Melbourne and it was decided to resume the hearing – in Bendigo – and to recall the applicant.
john murray church
25. Mr Church was a Lieutenant Graduate from the Royal Military College in December 1948. He has held a number of administrative and service postings within Australia and overseas, he retired from the armed forces in February 1982. Mr Church was acquainted with the evidence of the applicant on the first day of hearing and with his evidence from the hearing before the VRB.
26. With respect to the applicant’s evidence concerning being on picket duty at the Nui Dat rubbish tip, Mr Church said that enquiries made of Colonel Burgess who was a personnel staff officer at Australian Headquarters in Vietnam indicated that the rubbish tip at Nui Dat was located at the western end of the Luscombe Airfield. He said that the tip was located within the perimeter fence. The tip was known to be the subject of looting by Vietnamese persons and the responsibility of persons on picket duty was to warn off persons intending or actually looting and to direct the placement of base rubbish. He said that he had been informed by Colonel Burgess that diesel fuel was poured onto the tip daily and set alight in order to achieve hygiene standards and disposing of any live ammunition which had been accidentally disposed. Information given to him indicated that it was “strange” that a cook was rostered for picket duty at a tip site when it was more common for drivers, storeman and clerks to be rostered for those duties. He said the perimeter fence was not “defended” but was “oversighted” by “SAS troops” who were located within adjacent bunkers.
27. Mr Church was asked to comment on the evidence of the applicant with respect to his relationship with the late Niblett. In his earlier reports Mr Church concluded that an examination of service records revealed that both Mr Heard and Niblett completed recruit training at Puckapunyal in the same platoon. He reported that at the completion of recruit training “their paths then parted and it is unlikely that they ever saw each other again”. Mr Church assumed that Mr Cain also completed recruit training at the same time as the applicant and Niblett however Mr Cain apparently was transferred during training and completed it in another squadron. In Vietnam Mr Cain was a member of D Company 4RAR whereas Mr Heard was a member of C Company. He said that Mr Heard and Mr Cain would not have come into contact with each other at all in Vietnam and therefore disputed the evidence of Mr Heard that he learnt of the death of Niblett from Mr Cain.
28. Mr Church continued to dispute the likelihood of Mr Heard and Niblett having any contact with each other in Vietnam. He said that Mr Heard would have been mainly stationed in Nui Dat during his service yet between 24 May 1971 and 21 September 1971 (when Niblett was killed) he was rostered for leave in Nui Dat for five day periods in July, August and September and for ten days between May and June. Otherwise he was on the manoeuvres elsewhere. Mr Church was of the opinion that on those occasions that Niblett was located in Nui Dat that it would have been very unlikely that he had any contact then with Mr Heard. (Refer report 15 January 2003).
29. Mr Church confirmed that Niblett was killed on 21 September 1971 during operation Ivanhoe. Apparently three members of his squadron were killed by enemy soldiers. Niblett attempted to assist those persons but was shot. His body was evacuated by medical helicopter but upon it being winched onboard he was found to be dead. The bodies of the three other persons in D Company were not then able to be evacuated and they were recovered two days later (refer later).
30. With respect to the issue of whether Mr Heard learnt from Mr Cain of the death of Niblett, Mr Church has reported that from information obtained from Lieutenant-Colonel Taylor who was the Officer-in-Command of D Company, Mr Cain had performed extensive patrol and security duties around Nui Dat and later at Vung Tau. He reported that from the information learnt from Lieutenant-Colonel Taylor, Mr Heard and Mr Cain would not have had any contact with each other prior to Mr Heard departing Vietnam on 7 October 1971.
31. With respect to the applicant’s evidence that he was affected by the sound of an exploding mortar, Mr Church said, there were four artillery positions located around the base where the applicant served (Luscombe). In his final report he annexed a plan of the first Australian Task Force at Nui Dat where four artillery positions were identified and which were maintained by New Zealand, United States and Australian Field Battery Units. One of the Units however was not maintained during the applicant’s service at Luscombe and the closest Field Battery to the applicant’s Mess unit would be approximately 2,000 metres away. Mr Church said that guns were fired during three different programs either being covering fire, defensive fire or harassing and interdiction fire. He said that harassing and interdiction fire occurs throughout the day and night by duty crew but usually is single gun fire only. Mr Church said that when he was located at Nui Dat he heard harassment and interdiction fire “all the time – day and night”. He said that if a mortar was fired to the west of the Mess unit Mr Heard “might have heard a faint bang”. He said if it had been fired to the north-east over the top of the base it would have been louder and would have caused a “whistling sound”. Mr Church disputed the applicant’s evidence of feeling the earth vibrate and said that any tremor would not have been experienced beyond 100 metres from the point of discharge.
dr walton
32. Dr Walton provided a report at the request of the respondent on 11 December 2002. He concluded as follows (pages 4-5):
OPINION
1.The clinical profile would suggest that the appropriate diagnosis is that of a post-traumatic stress disorder.
2.I understand that Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999, concerning Post-traumatic Stress Disorder is the relevant Statement of Principles. Whether or not the veteran has been exposed to an objective event which involved actual threatened death or serious injury, or a threat to the person’s physical integrity of self or others, in my view, is not a matter of psychiatric expertise. What the veteran reports as his subjective reactions to the events he identifies is marked anxiety in relation to the three or four occasions that he undertook picket duties, a brief period of seemingly fairly intense fear until he concluded that the artillery fire was friendly, and no more than a normal grief reaction following his learning of the death of his friend.
The veteran does provide a history of recurring distressing recollections of his military experiences, as well as recurring dreams of the events. He does not report reliving experiences but he does exhibit distress when exposed to reminders. At times he is easily startled.
The veteran does not provide a history of actively attempting to avoid thoughts, feelings or conversations surrounding the trauma he identifies. He is properly described as generally socially avoidant but not specifically on the basis of attempting to avoid reminders of the trauma. There is no obvious inability to recall important aspects of the trauma but there certainly is a markedly diminished interest in significant activities. The veteran does seem to report some feelings of detachment or estrangement but not specifically in relation to friends and family. There is a restricted range of affect and the veteran describes living week by week, which does seem to be an indication of a sense of foreshortned future.
The veteran provides a clear history of insomnia, irritability and difficulty concentrating. He seems not to be especially hypervigilant but there is an exaggerated startle response.
The history is certainly of symptoms of a duration of more than one month and, in my view, the veteran’s mental disturbance does cause clinically significant distress and impairment of social functioning.
3.While it is apparent that the veteran is working in a somewhat sheltered situation of self-employment, for example, his wife and staff tend to shield him from the customers in case he exhibits inappropriate irritability, nevertheless, effectively the veteran is in full-time employment. In my opinion his post-traumatic stress disorder does not prevent him from working in excess of 20 hours per week.
It is correct to state that the post-traumatic stress disorder does have an impact upon this man’s work, he struggling [sic] to perform tasks which require sustained concentration, and his interpersonal dealings are conflict-ridden, which amounts, in my opinion, to a significant but minor partial incapacity for work.
Apparently any other medical conditions also do not prevent the veteran from working more than 20 hours per week, because he continues to do so.
33. In evidence Dr Walton confirmed that in his opinion the appropriate diagnosis of the illness suffered by Mr Heard was PTSD. He said that if there was a finding of PTSD the diagnoses of depressive disorder and generalised anxiety disorder would be “excluded”. Nonetheless he agreed that there were features of these latter conditions within the symptomology of PTSD.
34. Dr Walton said that he formed his opinion of PTSD as the appropriate diagnosis by a combination of applying the definition of PTSD within the SOPs and by reference to DSM IV.
christopher john percival
35. Dr Percival gave his evidence on the second day of hearing and had provided a report at the request of the applicant’s solicitor dated 6 February 2003. In that report he discussed a number of concerns he had with respect to diagnosis. It would appear from his report – and this was reaffirmed in evidence – that he understood that diagnosis was to be determined by the SOPs. In his report of 6 February 2003 he recorded (in part) the following (page 3-4):
When one considers the total picture of this man’s chronic psychiatric symptomatology derived from his assessment by five different psychiatrist, in my considered opinion one is forced to the conclusion that he suffers from, and has suffered from, since well before 1983, indeed since his time in Vietnam, a chronic, significant, and worsening psychiatric disorder, with the only issue that can be seen as being reasonably in doubt being that of diagnosis. Considering this issue from the widest possible perspective the differential diagnosis must in my opinion lie between Post Traumatic Stress Disorder, Major Depressive Disorder, and Generalised Anxiety Disorder, the terminology being that of the DSM IV, and not necessarily of the Repatriation Medical Authority Statement of Principal which currently, as I understand the situation, refer to Anxiety Disorder and Depressive Disorder, terminology which I believe can be properly treated as synonymous with the DSM terms used immediately above.
Considering first a presumptive diagnosis of Post Traumatic Stress Disorder there is no doubt but there is common ground amongst my colleagues, from which I would in many ways not dissent, that to explain this veteran’s total symptomatology by a diagnosis of Post Traumatic Stress Disorder makes sound clinical sense, and that this diagnosis falls down only on the necessary requirements that relate to relevant Statement of Principal. In this connection it is of interest to note that the Repatriation Medical Authority, subsequent of the development of the currently accepted Statement of Principal for the diagnosis of Post Traumatic Stress Disorder, has raised seriously the proposition that the current criteria, essentially those of the DSM IV, are inadequate with respect to Criterion A, and that a further component should be added to that criterion, that is of chronic exposure to what they describe as a “malevolent environment”, acceptance of which would allow a diagnosis of Post Traumatic Stress Disorder to stand in your client’s case.
However lacking such an acceptance, one has to address the issue of whether your client’s experiences can reasonably be seen to satisfy even the widest view of the current definition. In discussing this issue the Board refers to the various events offered on your client’s behalf as possibly satisfying this criterion, and hold, in my view reasonably, that they do not in general meet the test. The Board does however in a sense appear to recognize the possibility that one might put slightly more weight on the fact that a man who trained with your client was killed in action in Vietnam, and that your veteran was clearly distressed when he received the news, and more so since he understood that his friend had had to be abandoned by the other members of his unit at a time when it was not absolutely certain that he was in fact dead, and that his body was only recovered the next day.
However, the Board then refers to the contention that your client might be judged to have been “confronted” by the event in question, that is the death of his friend, by the receiption of the news of that death, and then expresses the opinion that such an event would normally have had to occurred in the veteran’s presence or view to meet the test, qualifying this with the comment that “there might be exceptional circumstances where the news of a particularly close friend’s death otherwise than in a veteran’s present or view might be regarded as meeting the requirements of the definition. However it seems to the Board that the news of the death would have to be virtually immediate and the circumstances of the death particularly distressing. The event in question in this case does not appear to the Board to have come into such an exceptional category”.
Again I find it difficult to take issue with the Board’s finding as to your client’s situation, which stands in clear contrast that the argument that was accepted by the Administrative Appeals Tribunal in the case of Boeder, that to actually see the wreckage in which one’s friend had died the day before could indeed be seen as amounting to being confronted with the reality of that death. In summary then, with respect to the diagnosis of Post Traumatic Stress Disorder, I must find myself in agreement with both Dr Walton, and the review board, that, under the Statements of Principal which must be applied, the diagnosis cannot be upheld.
36. In evidence Dr Percival said that he was aware of reports that had been completed by Doctors Orchard, Ots, Walton and D’Ortenzio. He said that except for Dr Orchard, all doctors had all diagnosed PTSD. He said there was agreement amongst all of the doctors that the applicant did suffer from a “psychiatric disorder” and it would have been his preference to also diagnose PTSD but he was of the view that DSM IV was deficient and that deficiency extended into the SOP. He believed in the circumstances he was not able to diagnose PTSD but in the absence of DSM IV and in the absence of the SOP, PTSD would have been the diagnosis made by him.
37. These opinions held by Dr Percival are not new. In this, and in previous applications, he has been florid in his criticism of DSM IV and SOPs. In fact as an expression of his discomfort at the deficiencies as he described with DSM IV and SOPs he said “it stinks” (transcript p11).
38. Having resigned himself to being unable to make a diagnosis of PTSD he said “we have to say what is the next best fit”. He thought that (by way of diagnosis) was “depressive disorder”. He said that if that was not the best available diagnosis then he would prefer “generalised anxiety disorder”. He concluded this discussion as follows:
In essence when you look at the descriptive material post traumatic stress disorder accounts for 100% of it. Depressive disorder accounts for about 66% of it and generalised anxiety disorder will allow for about 33% of it. And that is the dilemma.
39. On balance Dr Percival preferred the diagnosis of “depressive disorder” because it satisfied “descriptive elements”. Much could be said for a diagnosis of generalised anxiety disorder but to a lesser degree. He said:
The fit for depression is better in terms of the range of phenomenology but perhaps not quite as good in terms of the intensity of it. Whereas the fit for generalised anxiety disorder is very good in terms of the intensity but not so good for the range.
He was of the opinion that the applicant’s service in Vietnam was the cause of either depressive disorder or generalised anxiety disorder and believed there was no other “plausible explanation” other than “sheer coincidence”. Applying the applicable definitions under the SOP with respect to depressive disorder, Dr Percival said that there were a number of identifiable occurrences that “evoked feelings of substantial distress principally the applicant’s picket duties, his reaction to artillery fire and the death of Private Niblett”. He described the feelings experienced by Mr Heard with respect to these events as causing “substantial distress” and said that the “most significant identifiable occurrence was the death of Private Niblett”.
40. Dr Percival said that whilst he acknowledged that Mr Heard had not seen much of Niblett in Vietnam he recalled that in his consultation, Mr Heard described Niblett as a “close friend”. Dr Percival distinguished reaction of civilians to learning of the death of others from that of service persons and said:
He went through basic recruit training with this guy and anybody who has had that experience doesn’t need to be told in detail that there is a very strong bond that takes place because it is a very adverse set of circumstances and you are thrown very much into a situation where you rely upon the mutual support of the group. It doesn’t have an equivalent in ordinary civilian life, at least not in my life.
41. When Dr Percival was informed that Mr Heard had difficulty when giving evidence of recalling some personal details associated with Niblett he said that he had difficulty obtaining a clear history from Mr Heard in consultation. Again – to demonstrate his preference for a diagnosis of PTSD – Dr Percival said:
It is a pity we don’t have the diagnosis of post traumatic stress disorder available to us because one of the criteria is inability to recall an important aspect of the trauma. One of the criteria for the diagnosis of depression in clinical practice – I’m not sure about this particular book is that the memory is severely affected as well.
42. With respect to the SOPs concerning depressive disorder and generalised anxiety disorder Dr Percival said that he was aware that applicable factors referred to the clinical onset within two years of experiencing the severe stressor. He was aware that Mr Heard had given evidence at the VRB that he first “got crook in 1983” (transcript p16) however on balance Dr Percival was not of the opinion that Mr Heard did “get crook” in 1983. He said (transcript p17):
It was when he first began to realise that he was crook and accept that he wasn’t quite like the best functioning members of the community. It was also the time which his wife started to meet the wives of other veterans and discovered that their husbands were remarkably like hers – and I think there was a misunderstanding there. I’m satisfied that this man’s psychiatric morbidity goes right back to his time in Vietnam. Whether it started in that country or shortly after he returned I don’t know. It certainly has worsened recently over the years but I think there is an adequate history tracing you back.
43. Dr Percival was further examined on this issue and said that having obtained a history that Mr Heard acknowledged his symptoms, in 1983, “he hadn’t been well for a long time”.
44. Dr Percival again reaffirmed that the appropriate diagnosis for Mr Heard was PTSD and said that in the context of that SOP, a finding of clinical onset was not required. Nonetheless he was satisfied that the causal requirements of the SOP with respect to depressive disorder and generalised anxiety disorder were satisfied and the most predominant feature was the death of Niblett. Additionally he said that the reaction of a person to learning of the death of a friend or associate “is normal human function” but “this guy was sent off to a war zone. What more do you want”. By way of conclusion upon the issue of clinical onset he said (transcript p19-20):
And even if the Tribunal would take the view that 1983 has to be seen as the beginning of this man’s psychiatric illness and therefore these two diagnoses don’t stand up, it still doesn’t alter the fact that this guy now has something like 20 years history of quite severe psychiatric morbidity and to expect him to have a clear and precise memory of the events that took place in his life some 10 to 12 years before the onset of that morbidity is just quite unreasonable. If he were claiming such a clear and precise recall than I would be a bit suspicious of him.
45. In cross-examination Dr Percival agreed with a proposition put to him by Mr Douglass that the applicant does have psychomotor retardation as found by Dr D’ Ortenzio. Dr Percival said this supported the diagnosis as being PTSD (as found by Dr D’ Ortenzio) but if he was required to apply that diagnostic feature to either depressive disorder or generalised anxiety disorder he said he would apply the former because psychomotor retardation is “not a feature of generalised anxiety disorder”.
46. Dr Percival was then referred to the reports of Dr Orchard who initially treated Mr Heard. It was noted that the applicant was prescribed Zoloft, Valium and Epilim. Dr Percival said that Dr Orchard is well known for diagnosing bipolar disorder which is sometimes known as manic depression. He said the medication prescribed is a “mood stabiliser” and in the context of the treatment of the applicant Dr Percival thought that the medication was more directed towards “the depressive phase rather than the manic phase”. When it was noted that Dr Ots, who later treated Mr Heard, prescribed Efexor, Dr Percival thought that Dr Ots was then (transcript p23):
. . . focusing on his depressive symptoms, although he is talking about post traumatic stress disorder as the diagnosis. Because what we see over and over again is that veterans do well on anti-depressants.
He thought that the medication that had been prescribed to Mr Heard by Dr Orchard and by Dr Ots was to treat both symptoms of depression and PTSD.
47. Mr Douglass then questioned Dr Percival upon the clinical onset of either PTSD or generalised anxiety disorder. When it was noted that Dr Ots, Dr D’ Ortenzio and Dr Percival all had a history of a manifestation of symptoms at or about 1983 it was suggested that this pointed to the occasion of the clinical onset. It was noted also that in or about 1983 the applicant sold his farm. Whilst Dr Percival again stressed that in his view the applicant should properly have been diagnosed as suffering from PTSD he said that the marital difficulties then experienced by the applicant together with the loss of his farm whilst satisfying the definition of “severe psychosocial stressor”, would be a “consequence not a cause”. He reaffirmed the view that he expressed in examination-in-chief that the applicant had been suffering PTSD symptoms for many years prior to 1983 but it was at that time that he and his wife began to realise that the symptoms then suffered were similar to those being experienced by other Vietnam veterans. Dr Percival agreed that it was possible that by “interacting with other veterans” the applicant was having their experiences projected on to himself but he preferred the view that a clinician should take a contemporaneous history of symptoms and apply a “reasoned reconstruction of symptoms when making a diagnosis”. He thought the opinions expressed by Dr Orchard in his report were not reasoned nor adequately explained.
48. Dr Percival was then asked to comment upon the definition of “severe psychosocial stressor” as it appeared within the SOPs for depressive disorder and generalised anxiety disorder. He noted that the examples provided by the definition extended to divorce and financial problems. He acknowledged that some persons might find those events “shattering” but in his experience those events, if not unfortunate, are normal in ordinary civilian life. He said that in order to form a diagnosis of PTSD there must be a re-experiencing of the traumatic event. He acknowledged that in a person diagnosed with depressive illness there would equally be a degree of re-experiencing the trauma and also acknowledged that the diagnostic criteria of both illnesses overlapped.
49. Dr Percival was then asked to comment upon an opinion that he previously expressed – and an opinion also held by Dr D’ Ortenzio – that the applicant suffers from psychomotor retardation. Dr Percival agreed that such an observation would be consistent with a diagnosis of a major depressive disorder. Dr Percival agreed that there was no material that pointed to the applicant suffering from a major depressive disorder in 1973, being within two years of cessation of service and applicable to the clinical onset of depressive disorder within the SOP. He thought (transcript p31):
. . . with the wisdom of hindsight he and his wife take the view that he was not well prior to 1983 but prior to that neither of them would really acknowledge it because it was too uncomfortable a prospect to look at.
Nonetheless he said (transcript p31):
. . . it is a very common clinical experience that when you can see the full lifetime history of depression in the context of modern medications being available, patients will describe a period of time of relatively severe symptomatology that they believe was the duration of their illness but when that illness is successfully treated they do not return to the way they were at the beginning of that period of severe disorder, they go back to somewhere they didn’t realise they had left years before, of low grade rumbling depressive illness, and I think this is a classic example of that.
third day of hearing
50. The hearing resumed for a third day when the Tribunal returned to Bendigo on a Circuit which was coincidental to the conclusion of the second day of hearing in Melbourne. The matter resumed because of the inability of Mr Liefman to obtain instructions from his client to the report of Mr Church. Mr Church gave evidence on the second day of hearing but Mr Liefman did not then cross-examine him (refer earlier).
51. When the matter resumed in Bendigo it was learnt that Dr Percival had again consulted with Mr Heard in the interim between the second day of hearing and the resumption of the third day in Bendigo. A report was prepared and it was dated 23 June 2003. It appears that Dr Percival interviewed not only the applicant but also his brother and his wife. Mr Douglass on behalf of the respondent took considerable objection to the latter report of Dr Percival being received into evidence and took further objection when it was learnt that Mr Liefman proposed to again call Dr Percival. It was submitted that Dr Percival had become an advocate of the applicant and that the intention of calling Dr Percival was to receive further evidence in support of the applicant’s case (by also calling the applicant’s brother and his wife) when a previous indication had been given that subject to cross-examination of Mr Church, the applicant’s case would close.
52. Mr Douglass was vigilant in his objection to the additional evidence. He submitted that Dr Percival “brought together key witnesses” and had displayed a “lack of objectivity”. He submitted that he had not been allowed to investigate the issues that would be raised by the applicant’s brother and his wife nor had he had the opportunity to put the contents of the latter report of Dr Percival to his medico-legal witnesses.
53. Mr Liefman acknowledged that he was of the understanding that the applicant’s case had closed at the end of the second day of hearing in Melbourne subject to cross-examination of Mr Church. However on reflection he considered that the issue of clinical onset with respect to the SOPs concerning generalised anxiety disorder and depressive disorder were critical issues. In those circumstances he decided to arrange a medico-legal consultation with Dr Percival together with the applicant’s brother and his wife attending. It was submitted that this would give Dr Percival the opportunity to determine whether the applicable factors under the above SOPs were met and that the clinical onset had occurred within two years of service.
54. On balance I decided that the evidence should be permitted. On the one hand there should have been proofs of evidence of the applicant’s brother and Mrs Heard exchanged prior to the commencement of the first day of hearing. There should have been notice therefore given to the respondent that it was intended to call these persons. Additionally the issue of clinical onset should have been thoroughly explored prior to the commencement of the first day of hearing so that both parties would be aware of the case that was being advanced.
55. It is undesirable in administrative review – no less in applications involving veterans – for hearings to be protracted with issues emerging during the hearing. Nonetheless the Tribunal does have an inquisitorial responsibility and subject to procedural fairness the correct or preferable decision will only be made when all applicable and relevant material is known and tested. I indicated to Mr Douglass that should he wish to make further enquiries or put the evidence to his witnesses that I would permit him to do so and resume the hearing on another day.
dr percival
56. In his report of 23 June 2003 Dr Percival confirmed that he consulted with the applicant, his brother Ian Heard and his wife Helen Heard, on 23 June 2003. Having obtained a history from Ian Heard and Mrs Heard concerning their observations of the applicant shortly after he returned from Vietnam and by reference to a number of events Dr Percival concluded (pp3-4):
In summary then I would maintain that the evidence of both Mr Heard’s brother, who has clearly known him well over the years, and remains close to him and emotionally involved with his welfare, and his wife, who has known since approximately two years after he returned from Vietnam, give more than adequate support to the concept that there was indeed a marked change in this man’s functioning associated with his service in Vietnam, and that that change has been present ever since his return from that country, with it admittedly being marked by a significant level of exacerbation in his symptomatology since the middle 1980’s. In terms of diagnosis the situation is unchanged, that is that one is forced to a clinically inappropriate diagnosis, that of Major Depressive Disorder, by the nature of the Statement of Principals, except in one respect, that is that there is now a history available sufficient to justify a diagnosis of at least Alcohol Abuse, (DSM IV 305.00), if not frank Alcohol Dependence, (DSM IV 303.90), which is now however in sustained partial remission.
In terms of causality I would argue that any doubts about the veteran’s presentation meeting the Statement of Principals for depressive disorder, that is the emergence of frank psychiatric morbidity within two years of exposure to a severe psychosocial stressor, with the issue of nature of the stressors experienced by Mr Michael Heard having been already thoroughly addressed before the tribunal, are now removed, leaving only the issue of a putative further diagnosis, that of a substance abuse disorder to be addressed. In this context I would argue that the transition that the veteran showed from restrained social drinking to problematical drinking took during his time in Vietnam, when it is reasonable to presume that his psychiatric morbidity first developed, since his brother clearly describes an abnormal reaction within two weeks of his return to civilian life, and that the underlying etiology of the veteran’s substance abuse was one of self-treatment of that emerging psychiatric morbidity, thereby establishing a reasonable argument that at the time of its onset the veteran was, as required by the relevant Statement of Principals, Instrument No. 76 of 1998, already suffering from a psychiatric disorder at the time of its inception.
57. In evidence Dr Percival said that he interviewed the applicant, his brother and his wife because he (Dr Percival) was “naïve at the first assessment about clinical onset”. He said that he later learnt that there had “been problems” before 1983 and he felt that the applicant’s brother “could provide first hand evidence of the applicant immediately after discharge”.
58. In cross-examination Dr Percival said that he did not obtain a history of the frequency of contact between Ian Heard and the applicant immediately after discharge but he regarded them as being members of a close family and had assumed that they had frequent contact with each other.
59. When taking a history from Ian Heard, Dr Percival learnt of an event in Numurkah approximately two weeks after the applicant returned from Vietnam. Apparently both the applicant and Ian Heard were walking down the main street when they heard “an audible clicking sound” apparently being caused by the opening of a car door. Ian Heard told Dr Percival that he recalled that his brother “leapt into the cover of a doorway from which he emerged shamefaced and embarrassed to state “I thought it was a rifle bolt”.” (Refer report of Dr Percival at page 2). Dr Percival said that episode amounted to a “startled response” consistent with a diagnosis of PTSD however “it can’t be PTSD because of the absurdity of its definition in Part A”. Nonetheless Dr Percival believed that this episode was the first “identifiable psychiatric disorder” and pointed to clinical onset.
60. Dr Percival also learnt of another episode where a haystack on a neighbouring farm caught fire. Apparently both the applicant and Ian Heard were members of a volunteer fire brigade who arrived with the intention of putting out the fire however the applicant was observed to be standing in a stationary position, with a fire hose pointing away from the fire and apparently disinterested. Dr Percival indicated to Mr Douglass that this episode of itself would not indicate a “depressive disorder”.
61. With respect to the applicant’s consumption of alcohol Dr Percival was of the view that he was not presently incapacitated by it however his symptoms had worsened – since he had either ceased or reduced his alcohol consumption – because “he has stopped taking his medicine that is alcohol”.
62. Further examination of Dr Percival concerned his discomfort with the definition of PTSD as is contained within the SOP and within DSM IV. Dr Percival said that if the applicant was not a veteran and or if he were not required to apply SOPs he would have diagnosed PTSD. He acknowledged that this would have been inconsistent with the diagnostic criteria of DSM IV in so far as Part A applied. In his clinical experience the application of DSM IV alone was not the basis upon which a diagnosis is made.
michael heard
63. Mr Heard produced a photograph taken of C Company during recruit training in 1970. It depicts him together with Ralph Niblett and Michael Cain. Mr Heard said the photograph was taken a few weeks prior to the completion of training. He therefore refuted the evidence given on the second day of hearing by Mr Church that both he, Cain and Niblett were not in the same Company during recruit training.
64. At this stage of the evidence Mr Douglass conceded that the photograph did indicate that the applicant, Cain and Niblett were trained in the same Company. The applicant said that he had not spoken to Michael Cain since he had left Vietnam.
65. In cross-examination Mr Heard said that he last saw and spoke with Mr Cain a few weeks before he left Vietnam. He said he came across Mr Cain at the Peter Badcoe Club in Saigon, one or two weeks after Niblett’s death. He said that he had not had any other contact with Cain whilst they were respectively serving in Vietnam.
66. When it was put to Mr Heard that Mr Church had given evidence that the nearest battery (which was responsible for discharging mortars) was approximately two and half kilometres away from the camp mess, Mr Heard reaffirmed that he regarded the mortar that he referred to in his earlier evidence as being “startling”, and whilst he acknowledged that it (assuming that it emanated from this position) was further away than he had understood he said that he was unaware of the origin of the mortar being discharged.
67. With respect to his picket duty at the camp tip site Mr Heard said that rubbish was not dumped on the occasions that he was on guard nor was the rubbish burnt on the occasions that he was on guard.
68. With respect to the death of Niblett, Mr Heard was referred to the report of Dr D’ Ortenzio (T-documents page 43) who obtained a history of the event of that death being passed on to Mr Heard by “a mutual friend”. Mr Heard said that he learnt of Niblett’s death from Mr Cain. He was not aware how Mr Cain had learnt of his death because he (Cain) served in a transport company and was not involved in the ambush when Niblett was killed. Mr Heard was adamant that he learnt of Niblett’s death from Mr Cain prior to him departing Vung Tau on 1 October 1971.
69. Mr Heard also acknowledged that in his earlier evidence that he had said that he had been told that Niblett’s body was unable to be removed from the ambush site and was located some days later. He acknowledged that Mr Church had reported – having made enquiries of others – that Niblett was evacuated from the site of the ambush but was found to be dead when he was placed inside a helicopter. That is to say the enquiries made by Mr Church indicated that other deceased persons had been left behind but rather Niblett had been removed at a time when he was alive but was found to be dead when lifted into the ambulance.
michael cain
70. Mr Cain was not called as a witness. Mr Liefman tendered a statement completed by Mr Cain on 2 July 2003 which was between the second and third day of hearing. It is reproduced as follows:
I.That I first met Ralph Niblett on the 28th January 1970 after he boarded the train at Camperdown on his way to Melbourne to answer his call up for National Service.
II.That I was also on the train for the same reason.
III.That I met Michael Heard on either 28 January 1970 or the next day after Ralph Niblett, Michael Heard and I were allocated to the same company, platoon and section.
IV.That I formed a very strong friendship with Ralph Niblett, as he was a very charismatic person who seemed to have that effect on everyone.
V.That each and every member of the section came to rely very heavily upon each other, as the training was a steep learning curve for us all and if one person was not pulling his weight, then everyone else suffered.
VI.That the friendship formed within the section, the platoon and to a lesser degree with the complete company was very strong and I can look back on those times with very fond memories.
VII.That after rookie training, Ralph and I were posted to Infantry Corp Training at Singleton N.S.W. and then to the 4th Battalion R.A.R. stationed at Townsville.
VIII.That up until this present time I believed the last time I saw Michael Heard was when I left rookie training at Puckapunyal.
IX.That on joining 4 Battallion I eventually was posted to Transport Platoon with Admin Coy 4 RAR while Ralph Niblett joined Delta Coy 4 RAR and we stayed with those companies whilst in Vietnam.
X.That prior to being posted to Vietnam I had seen the Battalion grow from some 100 people to its full strength and I got to know many of the personel over that period.
XI.That on the 22 September 1971 I was in Vung Tau on REC when I heard of the contact involving 4 RAR the previous day and that many of the members were in 1 Aust Field Hospital in Vung Tau.
XII.That I went to the hospital to see if there was anybody I knew, where I met Pte Phil Cartledon whom I had known in Australia through my friendship with Ralph Niblett. He told me that Ralph had been killed the previous day.
XIII.That returned to the Badcoe Club and proceeded to get very drunk as the shock of Ralph’s death had hit me very severely.
XIV.That I vaguely remember being with someone at the Badcoe Club but I cannot recall who it was. I was extremely upset and cannot remember how the night ended.
ian maxwell heard
71. Ian Heard is the older brother of the applicant. He recalled that prior to enlistment, his brother was a member of a family that lived on a soldier settlement farm at Waaia. He recalled his brother as being a keen sportsman who played football and tennis and described him as “a normal country boy” who helped neighbouring farmers whilst at the same time assisting on the 140 acre dairy farm operated by his family. He said that the local football club was “the centre of town” and sport was a prominent social activity. He recalled that his brother “fitted in well with the locals”.
72. After discharged he recalled that his brother returned home by train to work on the family farm. He said he was then “sullen, quiet and drinking a lot”.
73. Ian Heard confirmed the incidents referred to in the latter report of Dr Percival namely his brother being startled by the noise of a car door opening and by attending a haystack fire. With respect to the latter incident Ian Heard said that his brother was not “then switched on” because “a country kid would know how to put a fire out”. He said that he could not then “work out what was wrong with him”. He recalled that his brother “broke off all contact with his mates and did not want to know them”. He recalled that he also ceased playing football. He described his brother as being “a gas bag” before he enlisted but on return he would not speak about his service nor would he respond when he was asked questions about service. Ian Heard said that he and his brother were not as close after the applicant was discharged as they were previously however he was pleased when his brother married because he thought “it would settle him down”.
74. In cross-examination Ian Heard said that the applicant bought “the farm next door” within 12 months of discharge. He said that all family members worked the farms they mutually owned. Ian Heard said that when their father died in 1973 the family farm was not divided between family members but rather he (Ian) inherited it. Ian Heard said that he saw his brother regularly and the haystack fire (refer earlier) occurred within about 12 months of his return from Vietnam. Ian Heard agreed that both he and the applicant and all members of the family were affected by their father’s death. He said they were all close to their father who was described as “our leader”. Ian Heard said that the applicant “hit the bottle hard until he got married” and continued to drink alcohol until 1983 when he ceased. He acknowledged that about that time he did not see much of his brother because he had moved away from farming in Waaia and was living in Kyabram.
helen mary heard
75. In evidence Mrs Heard said that she first met her husband – the applicant in these proceedings – in mid 1974. She recalled that he was then a quiet person and it was not until several meetings later that she learnt that he had served in Vietnam. She recalled that she met Mr Heard at a social function in Shepparton and they were married in 1975. In the year prior to marriage she said that she saw him on approximately two occasions per week and recalled that he was a dairy farmer. She said that she and Mr Heard did not socialise with other persons and when they went out together it was usually to attend a drive-in picture theatre or to stay at home with his family. She recalled that she and her husband had a close circle of two or three friends only.
76. Later, when their children played football they attended those games “for the benefit of the children but he did not get out of the car nor did he drink alcohol at the football with other men”.
77. Mrs Heard said that her husband continued to be reluctant to interact with other persons and that their children had “missed out”. She said that by 1983 he had become “hard to live with” and she spoke at some length about marital difficulties. At about that time the farm at Waaia was sold and they moved to Kyabram. She thought that her husband would then have more time available for her and the children and he obtained salaried employment with the Victorian Department of Natural Resources and Energy. She said that Mr Heard held that employment until approximately 1992 when he rang her one day from work and advised that he had then given notice. She recalled that she was then shocked because there had been no prior discussion about this although she was aware that he was unhappy in that employment.
78. It was noted that Mr Heard was referred by Dr Tisdall to Dr Orchard in 1999. Mrs Heard could not recall any specific event other than there was “a build up” in her husband. She thought poorly of Dr Orchard and when her husband was later referred to Dr Ots she regarded him as being “more humane”.
submissions
79. The representatives of both parties lodged written submissions following the conclusion of the hearing.
80. Mr Liefman submitted that there was uncontradicted evidence amongst all of the psychiatric witnesses that the applicant did suffer from a psychiatric condition satisfying the requirements of “injury” or “disease” within the meaning of s5D of the Act. It was also submitted that Drs Ots, D’Ortenzio and Percival were of the belief that the likely cause of the psychiatric condition was the applicant’s operational service. Additionally it was submitted that there was no other life event that would explain the presence of the psychiatric condition.
81. With respect to diagnosis it was noted that Drs Ots, D’Ortenzio, Percival and Walton all agreed that the applicant suffered PTSD. However Dr D’Ortenzio varied his diagnosis to be that of “PTSD with superimposed depression”. It was submitted that Dr Orchard made a diagnosis of “variant of mood swing disorder”.
82. With respect to the evidence of Drs Percival and Walton, the only doctors to give evidence in these proceedings, it was noted that they both referred to the diagnosis of PTSD together with the potential diagnosis of depressive disorder and the diagnosis of generalised anxiety disorder. It was noted that both Dr Percival and Dr Walton had difficulty preferring the diagnosis of PTSD having regard to the content of the SOP and whilst both doctors were of the view that the applicant could satisfy the SOP for the condition of generalised anxiety disorder, Dr Percival was also of the view that the applicant may satisfy the SOP with respect to depressive disorder.
83. It was submitted that having regard to the Federal Court decision of Benjamin v Repatriation Commission [2001] FCA 522 the Tribunal could determine that an applicant suffers from one or more injuries or diseases and where there was conflict in the evidence as to diagnosis it was open to a decision-maker to find a “compromise of an alternative diagnosis that would provide the best and preferable decision”.
84. On that basis it was submitted that the appropriate diagnosis that should be found with respect to the applicant was generalised anxiety disorder. Further to this it was submitted that the factor applicable would be 5(a)(ii) namely “experiencing a severe psycho-socio stressor within the two years immediately before the clinical onset of generalised anxiety disorder”.
85. It was submitted that the three events in service, articulated in the evidence of Mr Heard were responsible for him suffering a psychiatric condition being generalised anxiety disorder. Mr Liefman then summarised the evidence which he said pointed to and therefore permitted a finding of the decision under review being set aside and in substitution a finding that the applicant suffers from generalised anxiety disorder that is war-caused.
86. Mr Douglass on behalf of the respondent in his written submissions noted that the doctors had suggested that the appropriate diagnosis was PTSD. However it was his view that Mr Heard did not suffer stressors of a “sufficient severity to meet the diagnostic criteria in the DSM IV”. Reliance for this proposition was upon the Federal Court decision of Budworth v Repatriation Commission (2001) 63 ALD 422. It was submitted that the applicant could not satisfy criterion A of the PTSD diagnosis as found within DSM IV because Mr Heard – on the evidence – was not exposed to a “traumatic event” as defined.
87. Additionally it was submitted that even if the applicant could be properly diagnosed as suffering PTSD under DSM IV, he did not experience “a severe stressor prior to the clinical onset of PTSD”. Reliance was made upon the definition of “experiencing a severe stressor” within the SOP and reliance was also made by Mr Douglass upon the Federal Court decisions of Stoddart v Repatriation Commission [2003] FCA 334 and Woodward v Repatriation Commission [2003] FCAFC 160.
88. With respect to the alternative diagnosis advanced by Dr Percival of either depressive disorder or generalised anxiety disorder it was submitted that Dr Percival was confused in his task. It was submitted that the witness confused diagnosis with causation and entitlement to compensation or pension should not form part of the diagnostic process.
89. With respect to the three incidents relied upon by Mr Heard it was submitted that the incidents where the applicant was exposed to gunfire and the incident where he was on picket duty would not satisfy the definition of “experiencing a severe stressor”. It was submitted that the evidence of the applicant was in conflict of the evidence of Mr Church and in any event would not satisfy the criteria of interpretation of “experiencing a severe stressor” within Stoddart.
90. With respect to the event of Mr Heard learning of the death of Niblett it was submitted that the relationship did not amount to that of a relationship of “close friend” as discussed in the definition of experiencing a severe stressor within DSM IV. Additionally it was submitted that the applicant could not satisfy criteria A of the PTSD diagnostic criteria because his reaction to learning of the death of Niblett did not involve “intense fear, helplessness or horror”.
conclusion and reasons for decision
91. In the present application the decision under review is the affirmation by the VRB of a primary decision of the respondent refusing the applicant’s claim for acceptance of PTSD on the basis that it was not war-caused. The VRB modified the diagnosis by amending the description of injury to that of “PTSD with superimposed depression”. Nonetheless the VRB did find as a fact that the applicant did suffer from PTSD and in making that finding the Members of the VRB decided that “Whether the veteran experienced a severe stressor or traumatic event the claimed condition meets the diagnostic criteria for PTSD as set out in paragraph 2(b) of SOP No. 3 of 1999 as amended (which as mentioned earlier is based on DSM IV)”.
92. In Repatriation Commission v Hancock [2003] FCA 711 Selway J (paragraph 9) decided that one of the pre-conditions in a claim for veteran’s pension is to identify “the kind of injury” suffered by the veteran. In deciding the diagnosis (the kind of injury) proof is on the balance of probabilities (refer Benjamin v Repatriation Commission (2001) 70 ALD 622).
93. Similar findings to that of Hancock above were expressed in Benjamin where at paragraph 55 the Court decided:
[55] The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
94. Additionally in making a finding as to diagnosis, resort to an SOP is impermissible (refer Benjamin at paragraph 41). A SOP “must be used in determining whether or not a disease is war-caused, and not relevant to the issue of diagnosis of a claimed condition” (refer Gerzina v Repatriation Commission [2004] FCAFC 96 at paragraph 12).
95. The present application was remarkable if not only by reason of the controversy concerning the diagnosis, particularly as expressed by Dr Percival in his evidence and in his reports.
96. The opinions expressed by both Dr Percival and Dr Walton – in evidence and in their reports - was in large part the result of misunderstandings as to the basis upon which a diagnosis should be made. Both were concerned to have regard to DSM IV and a belief that diagnosis should be made in accordance with the SOP. I would repeat at this stage that a SOP is only relevant to the issue of causation. It has no relevance to a finding of diagnosis.
97. Both witnesses understandably had regard to their clinical experience and to DSM IV or, more significantly, the manner in which it should be interpreted. No criticism is implied of the witnesses by these comments but it does again highlight the conflict which sometimes emerges between law and medicine. It also gives rise to a perception that DSM IV is to be treated as a statutory instrument – which it is not.
98. Recently the High Court considered the application of DSM IV in a common law application in Tame v The State of New South Wales [2002] HCA 35. Hayne J observed that Common Law Courts had given “Little explicit attention . . . to identify the basis upon which the distinction between psychiatric injury and mental distress is to be made . . .”. At page 101, paragraph 293, his Honour discussed the application of DSM IV when he concluded:
293.That importance can be illustrated by considering post-traumatic stress disorder [319]. The revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders[320] (commonly referred to as "DSM-IV-TR") gives six diagnostic criteria for identifying post-traumatic stress disorder. Of those, the last is that "[t]he disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning". The diagnostic criteria also include criteria whose application depends upon the patient's report of subjective feelings of helplessness, fear, horror and the like. It is at these points, of capacity to participate in ordinary activities, and reports of subjective feelings, that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM-IV-TR says[321] that: "[W]hen the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis." (emphasis added)
99. In the State of New South Wales v Seedsman [2000] NSWCA 119 at paragraphs 104 and 114 Speigelmen CJ decided:
104 The DSM-IV is certainly not written as legislation. It describes, in terms which should be taken as guidelines, rather than strict boundaries, a condition which a clinician may diagnose when certain criteria are met. . . .
114 DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a "diagnostic manual" for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.
100. Madgwick J at first instance in Budworthv Repatriation Commission [2001] FCA 317 discussed the application by the AAT of DSM IV and concluded that his observation of the reasons of the Tribunal did not suggest that DSM IV was applied in a “mechanical or cook book fashion”. He concluded at paragraph 59:
[59] The tribunal was well aware that it was not to apply DSM-IV as though it was a legal instrument but, rather, took the view that it was an authoritative manual to which the tribunal could make reference in determining the applicant’s claim. . . . The DSM-IV was not used as a legal barrier against the applicant. It was used by the Deputy President to assist him in determining whether the applicant had a claimed disease, as the Deputy President was required to do under the Act. . . .
101. In making a finding as to diagnosis I am of the view that it is permissible to have regard to the evidence of appropriately qualified persons and if necessary (having regard to the present application) to resort to DSM IV.
102. In a report of 24 November 2000 Dr Ots who treated Mr Heard concluded “He is suffering from Post-Traumatic Stress Disorder in relation to the nature and conditions of his service in Vietnam” (T-documents page 18). In reaching this conclusion Dr Ots recorded the symptoms experienced by Mr Heard and specifically he has a history of the applicant being on picket duty and then feeling exposed and being a decoy. He also has a history of the applicant reacting to learning of a friend who was killed in action (refer T-documents pages 16‑18).
103. Dr D’Ortenzio provided a report to the respondent on 15 October 2001 and has completed a very comprehensive report (T-documents pages 39-47). At page 47 Dr D’Ortenzio concluded:
“Mr Heard has long suffered from PTSD as a result of his Vietnam experiences. Though he did not experience a single specific overwhelming event which led [sic] to his development of the disorder he did experience a number of smaller but cumulative events which together contributed to his pervasive fearfulness and overwhelming feelings of being in danger and unable to protect himself from injury or death.
Later he recorded:
“Given the above it is possible to make a psychiatric diagnosis of Post-Traumatic Stress Disorder with superimposed depression the latter having recovered somewhat with treatment over recent times. The disorders are related to his war service.
104. Dr D’Ortenzio has taken a very comprehensive and detailed history from Mr Heard and has recorded in great detail the applicant’s symptoms and reactions to events in service.
105. Both Dr Ots and Dr D’Ortenzio did not give evidence and the contents of their reports were of course not subject to examination at the hearing.
106. Dr Walton did give evidence and in his first report of 11 December 2002 he concluded that the appropriate diagnosis was PTSD. He recorded the applicant’s symptoms and clearly found that PTSD was the appropriate diagnosis.
107. In his second report of 30 June 2003, having been provided with a copy of the report of Dr Percival of 6 February 2003, whilst not dismissing his earlier preferred diagnosis of PTSD, he acknowledged that there was an alternative diagnosis available, namely generalised anxiety disorder. On close examination however he was influenced by the belief that diagnosis was subject to satisfaction of the SOPs (refer page 2, paragraph 3).
108. The views expressed by Dr Percival are abundantly clear (refer earlier) and are also reflected in his reports of 6 February 2003 and 23 June 2003. In fact in his report of 23 June 2003 he reported:
In so far as diagnosis is concerned there is common agreement that under the Statement of Principles as opposed to being guided by simple clinical criteria your client could not be diagnosed as suffering from Post-Traumatic Stress Disorder leaving available alternative diagnosis of major depressive disorder and or anxiety disorder.
I understand those comments to mean that were it not for SOPs “simple clinical criteria” would have dictated a finding of PTSD as the diagnosis.
109. I also note that at T7 Dr Tidsall the applicant’s treating general practitioner has completed a medical impairment assessment which has recorded in considerable detail the signs, symptoms and features of the applicant’s illness in the context of the form provided to him by the respondent where he has been asked to assess the disability of PTSD.
110. I am influenced by the opinions expressed by Drs Ots, D’Ortenzio, Walton and Percival all being practising psychiatrists. I am also influenced by reference to DSM IV which I am not prepared to interpret as if it were legislation but rather as a diagnostic manual containing guidelines for clinical use. In so far as criteria A(1) of the diagnostic criteria is concerned and in so far as the applicant relied on the learning of the event of the death of Niblett, it is clear that Mr Heard “experienced” and was “confronted” with an “event” involving actual death. In his evidence in these proceedings he said that upon learning of that event he was “devastated” (refer paragraph 16 earlier). In my view that reaction constitutes a response within criteria A(2). The remaining five criteria (B‑F) are clearly satisfied having regard to the contents of the reports of the psychiatrists and to the medical assessment forms completed by Dr Tidsall.
111. In all of the circumstances I am satisfied that the appropriate diagnosis of the illness, injury or disease suffered by Mr Heard is PTSD. It therefore follows that the SOPs applicable will be numbers 3 and 54 of 1999 entitled “Post-Traumatic Stress Disorder”.
112. Having found on the probabilities that the appropriate diagnosis of the applicant is PTSD it follows that the SOPs with respect to that illness are considered.
113. Within the assessment period the only two applicable Instruments are Nos. 3, and 54 of 1999. Relevantly Instrument No. 54 of 1999 amends Instrument No. 3 of 1999 only by correcting the use of the singular “Entitlement” in the definition of “experiencing a severe stressor” in paragraph 8 and substituting the plural “Entitlements” as that word appears in the context of describing the applicable legislation, namely the Veterans’ Entitlements Act 1986.
114. Paragraph 4 of Instrument No. 3 of 1999 provides at paragraph 4 that one of the factors in paragraph 5 must be related to relevant service rendered by the veteran. For the purposes of the present application the applicable factor under paragraph 5 is paragraph (a) namely:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
115. The expression “experiencing a severe stressor” is defined at paragraph 8 in the following terms:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
116. In circumstances involving a claim decided after the 1994 amendments (of which the present application applies) there are four stages of analysis as determined by Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 namely:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
117. The applicant has advanced a hypothesis connecting his illness of PTSD with the circumstances of his services. At this stage of the analysis, fact finding is not required nor is the applicant required to establish that his hypothesis is reasonable. There is a SOP which is “in force”. Accordingly the first two stages of the Deledio analysis are satisfied.
118. With respect to the third stage I am satisfied that the hypothesis raised by the applicant is “reasonable” because it is a hypothesis that is consistent with the “template” found within the SOP. I am satisfied for reasons which follow that the hypothesis raised is contained within the SOP, namely factor 5(a), which I am satisfied exists as a minimum and which is related to his service.
119. The reasons for this finding, namely, that the applicant did “experience a severe stressor” as defined require a discussion of the principles enunciated by the Full Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160, Stoddart v Repatriation Commission [2003] FCA 334 and Repatriation Commission v Stoddart [2003] FCAFC 300.
120. In Woodward the Court decided that the definition of “experiencing a severe stressor” had three elements applicable in circumstances where a person encountered an event involving death. It was decided that the definition is satisfied if any one of the elements was present and for the purposes of the definition “a person may be confronted with an event that he or she has neither experienced or witnessed”. Upon adopting the ordinary usage of the word “confronted” the experience of being confronted did not require a person to be present at the event that he confronts and whilst it may sometimes mean being “brought face to face with it either physically or perhaps more commonly in the mind”, to “confront” no less applies when a person is confronting an event involving death or serious injury.
121. When considering the remaining elements of the definition of “experiencing a severe stressor” the Court also decided that the “actual” threat of death or injury might be perceived if there is material pointing to a genuine belief which is based on reasonable grounds as opposed to an objective analysis where there is no material pointing to the reality of an event. The Court concluded that if the issue “ultimately involves the effect of an objectively stressful event upon a person’s mental health it is hard to see why the unknown reality of the threat as contrasted with the appearance with the reality should be determinative”.
122. After the appeal hearing concluded but before the delivery of the decision in Woodward the Full Court became aware of the decision of Mansfield J in Stoddart. The Full Court referred to the decision in Stoddart and noted that His Honour decided that it would be wrong to find that a “threat” “be one that judged objectively and remote from the circumstances and state of knowledge of the person experiencing it has a real or actual prospect of resulting in death or serious injury”. Mansfield J considered that by doing so the Tribunal had thereby imported into the concept of “threat” in the applicable SOPs more than was demanded by its wording and its purpose.
123. In Stoddart His Honour decided at paragraphs 40, 41 and 42:
40 There is no doubt that there is a subjective element required to "experience" a severe stressor. The requirement that a threat should be experienced conveys simply that the threat should in fact be met, undergone or felt. The Tribunal did not in my view overlook that issue. It did not have to address the issue because it concluded that the acceptance of the applicant's claims about the occasions giving rise to his fears "do not objectively satisfy the relevant factors", namely being "confronted with an event or events that involved actual ... or threat of death, or serious injury".
41 In my view, it is at that point the Tribunal has fallen into error. It has required a "threat" to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with the threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity. I think it has thereby imported into the concept of a "threat" in the SoPs more than is demanded by their wording and by their purpose.
42 The definition of "experiencing a severe stressor" relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity. . . .
124. A Full Federal Court dismissed an appeal against the findings of Mansfield J in Stoddart (refer Repatriation Commission v Stoddart). One of the grounds of appeal was that the use of the words “the risk of death or serious injury” by Mansfield J reduced the threshold or meaning to be given to the word “threat” as it appears within the definition and the words also caused the definition to be refocussed “away from the alleged requirement that there be a manifestation of intended or likely harm”. The Full Court concluded at paragraphs 34 and 35:
34 We do not consider that either of the contentions can give comfort to the appellant. The description, "a risk of death", can be used appropriately to describe a clear and present danger of death and a mere possibility of death. Ordinarily, it is the context in which such a description is used (with or without an accompanying adjective: cf "risk" vs "mere risk" in Repatriation Commission v Thompson (1998) 44 FCR 20 at 24) that will indicate the gravity of the risk that is being incurred. In our view, such is the case with the primary judge’s usage.
35 Given the context in which the word "risk" was used – ie in a protracted discussion of what constitutes a "severe stressor" – it is apparent that his Honour intended no dilution of what the term "threat" conveyed in the definition of each SOP and the gravity of the perceived risk was to be understood accordingly. To suggest that he did otherwise is to divorce the language used from its context. It is notable that the Full Court in Woodward (at para 139) appeared to have no difficulty with his Honour’s use of the term "risk".
125. It follows therefore that the hypothesis raised by the applicant is reasonable because it is consistent with the “template” found within the SOP namely factor 5(a). The clinical onset of PTSD was, particularly on the evidence of Ian Heard, within a few weeks of discharge. The attention given to the clinical onset during the hearing had its focus on the alternative diagnoses, nonetheless, on the basis of Re Robertson and Repatriation Commission (1998) 50 ALD 668, any investigation by a doctor prior to 1983 would have indicated the presence of PTSD. In the absence of any other life events, Mr Heard did “experience a severe stressor” in service which occurred prior to the clinical onset of PTSD (refer factor 5(a)). I would be confident, despite his evidence as recorded at paragraph 49 earlier, that Dr Percival, if he was aware of Re Robertson would have found the clinical onset of PTSD earlier than 1983 if asked. It is worthy also to note that the duration between service and clinical onset is not limited in the PTSD SOP as it is in the other SOPs for depressive disorder and generalised anxiety disorder.
126. Findings of fact are only required at stage 4 of the Deledio analysis is considered. The claim will succeed if I am satisfied beyond reasonable doubt that the incapacity arose from a war-caused injury.
127. I am satisfied on the evidence heard and from the documents read that the applicant is a witness of truth who did not exaggerate or embellish. He left Australia to serve in Vietnam and was then a contented and active member of a small rural community. He enjoyed relationships with many people and was well respected and well known. Upon the description of his brother, he returned from Vietnam remarkably different and upon the evidence of Mrs Heard it was not for sometime after she first met him that she learnt that he had served in Vietnam, such was his reluctance to speak of his war service.
128. It is true that the applicant was not a “front line” soldier who did not fire at, nor was he fired upon, by the enemy. There was no material of him observing the death or serious injury of others nor was there any material of him suffering any physical injury.
129. In reaching the conclusions that I have as follows, it is worthy to be reminded of the applicant having served in a war. The experience is inherently dangerous. There is always the presence of a “unknown reality of threat as contrasted with the appearance of the reality” (refer Woodward at paragraph 136).
130. It is also important in my view to restate that the events relied upon by the applicant occurred more than 30 years ago and the ability to recall or describe events with precision would be virtually impossible. The applicant’s credit should not be tarnished if the respondent relies on military historians who have had access to historical data in formulating opinions.
131. It is not in dispute that there was an occasion that the applicant was on duty guarding a tip site. On that occasion the applicant was sheltered by a beach umbrella and he was scared. In his evidence he described having a feeling as if he were a “decoy” and a “sitting duck”. He felt vulnerable. He must have been at risk or under threat because he was armed and he was in a war zone. It must surely be of little comfort that the tip was located within the perimeter boundary of his base. Realistically, what could turn on whether the tip was inside the perimeter fence or outside of it? Mr Heard, armed and in radio contact with SAS persons who guarded it suggests that the fence was not impervious. The fact is, the tip was known to be a source of scavenging by persons who could not necessarily be identified as ally or enemy. The threat was apparently understood by the applicant’s superiors because SAS soldiers were strategically positioned around the perimeter of the tip in the event of conflict. The reaction of Mr Heard is not the consequence of “paranoid ideation” (Woodward at paragraph 77) but it is based on an “event” involving the threat of death or serious injury.
132. I am satisfied that on this experience alone there is material pointing to “a genuine belief based on reasonable grounds . . . (of) a threat of death or serious injury” thereby satisfying the definition of “experiencing a severe stressor” (Woodward at paragraph 135). Additionally I am satisfied that the subjective component of “experiencing a severe stressor” was met in the circumstances of that event because the applicant was of the genuine belief, reasonably held, that he was exposed to the threat of serious injury or death. Even if examination of the definition of “experiencing a sever stressor” was judged objectively it could not be found that there was no real or actual prospect of death or serious injury actually occurring.
133. The event which was probably predominant in the applicant’s memory of service and probably also largely responsible for the occurrence of PTSD was learning of the event of Niblett. The applicant’s credit was impugned because of inconsistency of his evidence at the AAT. It was also suggested that the nature of the relationship between Mr Heard and Niblett could not be of a type which would permit comprehending the applicant’s reaction to learning of the death when he had not visited the deceased family in Australia. Additionally the applicant was attacked because the circumstances of the death of Niblett were in fact different to the belief of the circumstances held by the applicant. In this respect the applicant said he understood that Niblett’s body was retrieved some days after the confrontation which gave rise to his death whereas the records examined by Mr Church indicate that Niblett was evacuated shortly after suffering bullet wounds but was found to be dead upon being airlifted into a helicopter.
134. The applicant and Niblett may not have spent much time together in Vietnam but the fact remains that they were close friends who had trained together in Australia before they commenced service in Vietnam. The applicant said he felt close to Niblett and a photograph was produced at the hearing depicting them. Mr Heard and Dr Percival both spoke of “bonding” and the relationships that form and exist between service personnel. The applicant’s reaction to learning of the death of Niblett was a genuine manifestation of grief and horror. His reaction is explained by the “devastation” the applicant said he felt. It is worth recalling the applicant’s evidence, in his description of the relationship with Niblett being “you don’t get friends like that every day” (paragraph 16).
135. Upon learning of the death of Niblett, Mr Heard was, in my view, “confronted” with an event involving actual death. On the basis of the discussion in Woodward, that event need not be either experienced nor witnessed. “If the thing being confronted is an event usage does not require that the person be present at the event that he or she confronts” (refer paragraph 122). Indeed at paragraph 126 of Woodward the Court concluded that the definition provided no basis to confine “confrontation” to an event involving the death of a family member or a close associate. In fact the Court concluded that the second part of the definition suggested the reverse in its reference to casualties and casualty clearance. At paragraph 129 the Court concluded:
129 The language of the definition provides no warrant to confine the confrontation with an event involving death, of which the definition speaks, to an event involving the death of a family member or other close associate. Indeed, the illumination provided by the second paragraph of the definition would suggest the very opposite, since it is hardly to be supposed that the general reference to casualties and casualty clearance was intended to be qualified in a way which, in the context, would be quite exceptional.
136. In Woodward it was argued that the veteran’s experience could not have involved actual or threatened death because the veteran had not seen the bodies of the persons who were killed nor was any material suggesting that the veteran was a friend of either deceased persons. The Court relied on the findings of fact in the AAT proceedings that the veteran had flown with the deceased persons on prior operations and had been required to pack the belongings of one of the deceased persons. In finding that the Tribunal was in error the Court concluded at paragraph 131:
Had the AAT brought to its task a correct understanding of the definition of "experiencing a severe stressor" it might very well have concluded that, in these circumstances, Mr Woodward was relevantly "confronted with an event ... that involved actual death...
137. I am satisfied on the material heard and read in these proceedings that Mr Heard was “brought face to face with the reality of death on active service” namely having heard of the death of his friend Niblett. It follows in my view that the applicant did “experience a severe stressor” when learning of that death.
138. In all of the circumstances I am satisfied that the illness of PTSD suffered by Mr Heard is war-caused. The decision under review in so far as it decided PTSD was not war-caused must be set aside and in substitution it is decided that PTSD suffered by Mr Heard was war-caused. The application should be remitted to the respondent for assessment of pension.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed: G.A. Carney
Personal AssistantDates of Hearing 3 April 2003, 16 June 2004 and 14 July 2004
Date of Decision 23 July 2004
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Mr R Douglass
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