Helion and Repatriation Commission
[2007] AATA 1081
•22 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1081
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/411
VETERANS’ APPEALS DIVISION )
Re
TERENCE HELION
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date22 February 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..............[Sgd]................................ RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions –– on balance of probabilities, no traumatic event experienced – no diagnosis of post traumatic stress disorder - diagnosis of alcohol dependence or abuse – reasonable hypothesis of relevant relationship to service raised – satisfaction beyond reasonable doubt that severe stressor not experienced – post traumatic stress disorder and alcohol dependence or abuse not war-caused – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120ARepatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144REASONS FOR DECISION
22 February 2007
Mr RG Kenny, Member
Background
1. Terence Helion (the applicant) undertook a period of service with the Royal Australian Navy (the RAN) from 8 April 1966 until 1 November 1971. On 19 January 2005, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “ptsd” and “alcohol abuse” which he contended were related to his RAN service. On 29 August 2005, the respondent accepted that Mr Helion suffered from post traumatic stress disorder and alcohol dependence or abuse but determined that those conditions were not related to his service. The Veterans’ Review Board (the Board) affirmed the decision on 22 May 2006 and Mr Helion now seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mr Helion was represented by Ms A Frizelle of counsel and the respondent was represented by Mr M Smith. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Service and Standard of Proof
3. Mr Helion was 17 years of age when he enlisted in the RAN. After recruit training, he completed a radio operator’s course and was categorised radio operator (special) (ROS). In 1969 and 1970, he rendered a period of eligible war service in the form of operational service, as provided for in sections 7 and 6C, respectively, of the Act. This was on HMAS Vendetta and it included periods in South Vietnamese waters.
4 The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in subsection 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
5. The application of that provision is affected by the terms of subsection 120(3) and by section 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Submissions
6. Ms Frizelle contended that the appropriate diagnoses for Mr Helion’s psychiatric conditions were post traumatic stress disorder and alcohol abuse or dependence. She submitted that each of the conditions was directly related to a stressful experience involving a “skirmish” in which Mr Helion was involved whilst making his way across the country to rejoin HMAS Vendetta after he had failed to board the vessel before its departure from Singapore in November 1969.
7. Mr Smith submitted that Mr Helion did not undergo the stressful experience referred to by Ms Frizelle. It followed, he submitted, that a diagnosis of post traumatic stress disorder could not be made. Further, he submitted that the absence of the stressful event and a pre-existing psychiatric condition meant that alcohol dependence or abuse was not war-caused.
Evidence
Mr Helion
8. Mr Helion, whose nickname in the RAN was “frog”, gave the following account of the series of events which led up to the stressful experience referred to by Ms Frizelle. HMAS Vendetta departed from Singapore on 7 November 1969. He missed the sailing as he arrived 10 minutes late. Some four hours later, he reported to the Royal Navy (RN) base HMS Terror and was placed under open arrest. He was allowed to stay on the base but was required to report in every two hours. Through the RN and the RAN, arrangements were made for him to be transferred to a point where he could reunite with the Vendetta. He remained in Singapore for about six days and then was transferred, alone, on an RAF Bristol Freighter aircraft to RAAF Butterworth. He remained there for a couple of days in the barracks by himself and was then transferred to Phan Rang in Vietnam by an RAAF Hercules aircraft. There, he stayed overnight by himself and was then flown by US helicopter to Da Nang where he stayed for two days. From Da Nang, he travelled by US helicopter to Saigon where he spent two days with American forces although he took the opportunity of visiting the Australian Embassy where he was given the sum of $50. He was then flown by US helicopter to Vung Tau where he stayed for several days with an RAN clearance diving team. He was then flown to Nha Trang and, after a 20 minute drive, he arrived at the wharfing facility where he was met by a boat and taken to the Vendetta. This was on 23 November 1969.
9. Whilst Mr Helion was in Vung Tau, he accompanied one of the RAN clearance diving team into the town in response to a request by the local police, whom he called the white mice. This was done to collect what was suspected to be an explosive device. It was a small container, a spectacles case, which was collected and taken back to the base. In transit, Mr Helion was required to hold the device in his hands as he sat in the front seat of the vehicle. On return to base, it was destroyed.
10. At Da Nang, Mr Helion was shown about the base by American service-men and he felt that he was being treated like a novelty. He was aged 20 at the time. On the first of his two nights there, he accompanied Americans to the Enlisted Men's club (EM Club) but he was refused entry because he was aged under 21 years. He returned to his barracks and drank alcohol with some of the Americans and went to bed at about 10 pm. On the second night, he returned to the EM Club and gained entry but was ejected after about 10 minutes when his identity was discovered. He and the Americans with whom he had attended the club left and went back to their barracks where they again consumed alcohol and played a dice game until approximately 4 am. At that time, the senior NCO, a sergeant, invited him to go on a “skirmish” with the Americans.
11. For the first time since leaving Singapore, Mr Helion was given fresh clothes in the form of a US military outfit. He was also given a .45 calibre handgun although he had not used such a weapon before and was not familiar with its operation. He and about 10 of the other Americans boarded a truck in which they travelled for about one hour. It was starting to get light when they arrived at a clearing in the bush which was covered in human bodies and body parts. He described the clearing as being in the order of 20 metres square (size of the Tribunal hearing room). He said that it smelt like a "rubbish tip". The deceased persons were not in uniform but rifles were lying near them. Mr Helion was unable to say how many bodies there were or whether sentries were posted on the perimeter of the area where the activity was taking place. He then learned that the “skirmish” involved collection of human remains by placing them in body bags for return to the base. He started to join in the activity but, on picking up part of a body, he was unable to continue. This was the first time that he ever encountered dead bodies and he started crying because of how he felt. This brought laughter from the Americans. He then retreated to the vehicle. He was under the impression that the body bags were loaded onto the vehicle but he did not see them. They remained at the clearing for some 15 to 20 minutes and then returned by truck to the base between 6am and a 6.30am in time for breakfast.
12. Upon Mr Helion’s returning to the Vendetta on 23 November 1969, he was met by Coxswain Collins and told to shower, change uniform and present himself to him within 30 minutes. Eventually, he was paraded before the captain and convicted of absenting himself without leave for the four hours from 7:30 am on 7 November 1969, when the Vendetta sailed, to 11.30 am on that day when he reported to HMS Terror. Punishment was imposed in the form of the 30 days stoppage of leave, a $50 fine and extra duties. He did not mention the incident at Da Nang to anyone at the time of those proceedings. He said that the first time that he ever referred to it was when he saw a psychiatrist in 2005.
13. Mr Helion denied any knowledge of an RAN serviceman named Lindsay Klem. He was not accompanied by him at any stage of his journey from Singapore to Nha Trang. He also denied any experience of water-based activities on a “rubber duckie” when he was with the clearance diving team at Vung Tau. Mr Helion also said that he did not serve at HMAS Harman before his experience on the Vendetta but was discharged from that base at the end of his service.
John Macdonald
14. Writeway Research Service Pty Ltd is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. These reports are prepared by retired military personnel after consultation with relevant military records and individuals who were involved in aspects of service relevant to the veteran. Reports in relation to the present matter were completed on 19 July 2005 and 28 July 2005 by John Macdonald. He formerly served as a captain with the RAN. He also gave evidence.
15. Mr Macdonald’s research revealed that another member of the Vendetta crew had remained behind in Singapore on 7 November 1969 to undergo dental treatment in the hospital at HMS Terror. This was Lindsay Ronald Klem (WTR Klem). Mr Macdonald located an address for a Lindsay Klem and wrote to see whether he was the person who had served as a writer on the Vendetta. Mr Klem then telephoned Mr Macdonald and confirmed that he was the same person. Mr Klem then detailed his means of travelling from Singapore to rejoin the Vendetta. After hearing what Mr Klem said about that journey, Mr Macdonald asked him whether any unusual incidents had occurred. Without prompting from Mr Macdonald, Mr Klem volunteered details about how he had accompanied “frog” Helion on the journey and had stayed with him throughout because he had been assigned custody of him at HMS Terror pending return to Vendetta. He said that no such incident such as that described as the “skirmish” by Mr Helion had occurred.
Lindsay Klem
16. Mr Klem gave the following evidence. He served in the RAN from 1965 until 1976 and was on the Vendetta in November 1969. He remained in Singapore after the vessel sailed because he was undergoing dental treatment in the hospital at HMS Terror. He was advised that, in addition to himself, there was another sailor who needed to be relocated to the Vendetta. This was Mr Helion. Mr Klem was designated by RN personnel as an escort to accompany Mr Helion to the Vendetta. He was directed to accompany Mr Helion until they rejoined the ship but he rejected a suggestion from RN authorities that he be handcuffed to him for the duration of that journey. He knew Mr Helion from his previous service when both were based at HMAS Harman. He said that they had associated with each other in the mess and in hotels in Canberra from time to time. He said that he and Mr Helion were each in a small category of service personnel as writer and radio operator, respectively, and that this increased the extent that they kept together at Harman.
17. Mr Klem recalled that they flew together from Singapore to Butterworth but he was unsure of the type of aircraft used. They then flew to Saigon in an RAAF Hercules. After two or three days there, they flew to Vung Tau by RAAF Caribou aircraft and were billeted with the RAN clearance diving team. While there, he accompanied members of the diving team in a rubber duckie to detonate some bombs which were floating in the bay. He drove the boat as he had a licence to operate boats with outboard motors and experience in operating them.
18. He recalled that, while in Vung Tao, he and Mr Helion accompanied one of the RAN clearance diving team into the town to collect an explosive device in the form of a spectacles case. He recalled that, on the return trip, he was in the rear of the vehicle and Mr Helion carried the device in his hands, cradled on his lap, as he sat in the front seat.
19. From Vung Tau, he and Mr Helion flew to Da Nang in an aircraft which was similar to a Caribou. He recalled staying there for one night only. They were allocated to the American barracks. He recalled that, until that time, Mr Helion had worn the same civilian clothes that he had in Singapore. At Da Nang, Mr Helion was given an American military outfit to wear. In company with Mr Helion and some of the Americans, they went to the EM Mess to attend a function. They were refused entry as it was open to Americans only. They then returned to their barracks with some of the Americans where they drank alcohol until the early hours of the morning when they went to bed. He recalled that they all went to bed at about the same time. He was certain that no such incident such as that described as the “skirmish” by Mr Helion had occurred.
20. Mr Klem said that he was not able to recall specifically the types of aircraft in which he travelled but he was certain that a helicopter was not involved because, even to the date of the hearing, he had never been in a helicopter. From Da Nang, they flew to an airfield which he believed was Pleiku and proceeded from there to Nha Trang by road. He described this as a journey which took approximately 2 hours. He and Mr Helion were then taken together by boat to the Vendetta and he recalled speaking with Coxswain Collins at the top of the gangway. This was on 23 November 1969.
Timothy Collins
21. Mr Collins served in the RAN from 1945 until 1983. He served on the Vendetta from September 1969 until April 1970. He was coxswain on the vessel in November 1969. He described himself as the senior sailor of the lower decks and as being responsible for the discipline and movements of all of the ship’s company.
22. Mr Collins knew both Mr Helion and Mr Klem when serving on the Vendetta. He could not recall any particular dealings with Mr Klem but he recalled the hearing of the charge against Mr Helion after he returned to the Vendetta on 23 November 1969. He confirmed that Mr Helion was not treated as a deserter. The charge against him related only to the 4 hour period when he was “adrift” between the ship’s departure and his reporting to HMS Terror.
23. Mr Collins said there were no records which indicated that Mr Helion had been placed in the custody of Mr Klem. He had been responsible for recording the names of those who boarded the Vendetta in Nha Trang. The record showed that Mr Helion and Mr Klem boarded on 23 November 1969 but he said that the record did not necessarily mean that they arrived at the same time or in the same boat from the wharf.
Other evidence
24. Service records in evidence show that Mr Helion was based at HMAS Harman between February and October 1968 before he joined the Vendetta. They also show that he served there again after leaving the Vendetta and before his discharge from the RAN. This contradicts Mr Helion’s evidence that he did not serve at Harman before his time on the Vendetta and supports Mr Klem’s evidence that Mr Helion was there when he was based at Harman.
25. A report of proceedings of the RAN clearance diving team for November 1969 was also in evidence and it lists a series of calls for assistance for the purposes of disposing of ordnance. It describes an incident involving a booby trap in a spectacles case. This supports the evidence of both Mr Helion and Mr Klem concerning their involvement in the retrieval of such a device.
26. In evidence was an extract from a book entitled Vendetta Vietnam in 1969 --70. Therein, at page 42, reference is made to Mr Helion. He is described as “ROS ‘Frog’ Helion”. It was contended that this may have been the source for Mr Klem to glean the nickname of Mr Helion. However, the extract in that text merely refers to “Frog Helion” in a context not relevant to any land-based incidents in Vietnam.
27. In evidence were records relating to the movements of HMAS Vendetta. These included a report of proceedings for November 1969. It records the vessel’s arrival at Nha Trang at 9.30am on 23 November. It also indicates that the vessel was not long in the harbour because bad weather was anticipated and the captain was anxious to proceed south to refuel in daylight hours. During his evidence, it was put to Mr Macdonald that the record of personnel joining the Vendetta on 23 November left open the prospect that there was more than one boat movement on that day and that the record didn't indicate that Mr Helion and Mr Klem arrived on the same boat. Mr Macdonald conceded that this was correct but also noted that the Vendetta was in the harbour for a short time only and considered that it was likely that the transfer was dealt with by a single boat.
28. The versions of Mr Helion and Mr Klem concerning the places at which they stopped during their transit from Singapore are not identical. Only Mr Helion referred to Phan Rang as a stopping point en route to Saigon from Butterworth. While both of them referred to stopovers at Saigon, Da Nang and Vung Tau, they described a different order for these. They also nominated a different landing point before driving to the wharf at Nha Trang. Mr Helion described a 20 minute drive from the town to the wharf. Mr Klem referred to a small airfield which he believed to be Pleiku from which they travelled for two hours or so to reach Nha Trang. Mr Macdonald thought that it was unlikely that Pleiku was the airfield. He said this was more than 200 km from Nha Trang via a road which was under constant prospect of enemy attack. He considered it more likely that they stopped at another US Air Force base in Da Lat which was much closer to Nha Trang.
29. Mr Macdonald was asked about the likelihood of a person such as Mr Klem taking part in an exercise on a “rubber duckie” with the clearance diving team. He thought it was unlikely to have occurred because of lack of experience and training. However, it was Mr Klem’s unchallenged evidence that he was qualified by way of licence and experience to operate the craft in the manner that he claimed.
30. In evidence was a copy of a signal sent from HMAS Vendetta to HMS Terror which advises that WTR L Klem was transferred to the naval hospital at HMS Terror on 6 November 1969. It also advises that ROS T P Helion was an absentee on sailing on 7 November 1969. A signal in response from HMS Terror was also in evidence. This stated that it was impossible to transport Mr Helion by air because of visa requirements which would not be able to be concluded in time. At that stage, the prospect was that Mr Helion might be able to meet up with the Vendetta in Thailand for which there were visa requirements. The Vendetta responded with a request that he be flighted to Saigon. A further signal indicates activity on Vendetta on 23 November. This includes the gain to the ship's company of Mr Helion and Mr Klem. Their names are included in the one signal but this does not indicate whether they arrived on the vessel together.
Medical Evidence
31. Dr Morris completed a report, dated 18 September 2006. He noted that Mr Helion commenced to drink heavily during service and that this contributed to his early discharge from the RAN. He noted the Board's decision in which it did not accept the evidence given by Mr Helion concerning the incident at Da Nang. He expressed the opinion that, if the incident had occurred, it would constitute a stressful experience for Mr Helion. Nevertheless, he was of the opinion that, while he displayed certain elements of post traumatic stress disorder, which began to develop after his discharge from the Navy, they were not sufficient to justify a diagnosis of that condition. He said that Mr Helion developed alcohol dependence and abuse and that he had also developed a depressive disorder, in part, because of that alcohol-related condition.
32. Also in evidence was a report, dated 2 March 2005, from psychiatrist, Dr Robert Athey. He detailed the account relating to the collection of body parts at Da Nang and formed the opinion that Mr Helion suffered from post traumatic stress disorder and alcohol dependence which were related to that event.
Diagnosis of Conditions
Post traumatic stress disorder
33. For post traumatic stress disorder, the relevant RMA Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria (paragraphs 2(b)A to F). All of these must be met before a diagnosis of post traumatic stress disorder can be made. Paragraph 2(b)A reads:
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
34. Dr Athey’s opinion is that the incident at Da Nang and Mr Helion’s reaction to it meet subparagraphs 2(b)A(i) and (ii). He diagnosed post traumatic stress disorder on that basis. Clearly, if the incident did not occur, the diagnosis cannot be made. On all of the evidence before me, I am satisfied, on the balance of probabilities, that the incident did not occur.
35. Mr Klem, in chief and under cross-examination, gave his evidence in a clear, forthright and convincing manner. I consider him to be a witness of truth. This was not a situation where, for whatever reason, Mr Klem came forward and made statements about Mr Helion. Rather, it was one where he was contacted by Mr Macdonald many years after the experiences in Vietnam. I am satisfied that it was Mr Klem who first made reference to “frog” Helion and that it was without prompting from Mr Macdonald.
36. Mr Klem’s version of events is not completely free of ambiguity. Mr Macdonald doubted whether he would have been involved in the boating activity with the RAN clearance diving team. He said that this was on the basis of his lack of experience. However, Mr Klem’s evidence was that he was experienced in vessels with outboard motors and I accept his evidence in relation to that activity. Mr Macdonald also expressed doubt about Mr Klem’s reference to Pleiku as the last airfield at which they landed before travelling by road to Nha Trang. It may well be that he incorrectly identified that place. I note that, in his evidence, he declared that it happened a long time ago and that he may have had difficulty with some of the details. Unlike Mr Helion, he was not able to readily identify the types of aircraft in which he travelled. On one point, however, he was clear. This was that he did not travel in a helicopter as alleged by Mr Helion. Indeed, his evidence was that he had never done so in his life and I accept his evidence in that regard. Mr Collins was not able to say that both Mr Helion and Mr Klem boarded Vendetta from the same boat. However, there is no material which provides guidance of whether one or more boats came alongside the Vendetta in the relatively short period the vessel was in Nha Trang. In the result, I accept Mr Klem’s evidence that they boarded together from the same boat.
37. I do not accept Mr Helion’s claim that he had no knowledge of Mr Klem. While they served on the same vessel, it may well be the case that they had no contact and it was the evidence of Mr Collins that they worked in and were quartered in different parts of the vessel. However, despite his denials, Mr Helion’s service records show that he was at HMAS Harman prior to serving on the Vendetta. I accept the evidence of Mr Klem that he knew and socialized with Mr Helion at that time both on the base and in nearby Canberra.
38. Most importantly, I do not accept Mr Helion’s evidence that he was not accompanied by Mr Klem from Singapore to Nha Trang. Although there is no documentation to support Mr Klem’s evidence that Mr Helion was placed in his custody, I accept his evidence that this obligation was imposed on him by RN personnel at HMS Terror. I also accept that he rejected the suggestion that handcuffs be used. Mr Klem was able to describe, in terms not materially different from those used by Mr Helion, the various legs of their journey, the incident involving the spectacles case at Vung Tau, the issuing of fresh clothing to Mr Helion at Da Nang, the inability to gain entry to the EM Club at Da Nang and to their return to the barracks where they consumed alcohol with American personnel until the early hours of the morning. I also accept Mr Klem’s evidence that, at that point, the men in the barracks retired for the rest of the night and that there was no “skirmish” as described by Mr Helion. As to the last matter, it is inherently unlikely that, at approximately 4 am, a group of men who had been consuming alcohol for some hours, issued Mr Helion with a handgun for which he had no training or experience, boarded a truck and travelled for about an hour to a bush clearing where they engaged in the retrieval of bodies and body parts by placing them into body bags, apparently, to return them to the base at Da Nang.
39. On the balance of probabilities, I am satisfied that the event described by Mr Helion did not occur. This means that I am reasonably satisfied that the requirements of paragraph 2(b)A in the Statement of Principles for post traumatic stress disorder are not met and that the diagnostic criteria for that condition are not met. It follows that the diagnosis of post traumatic stress disorder can not be made.
Alcohol dependence
40. Dr Morris and Dr Athey diagnosed alcohol dependence or abuse. Unlike the situation with post traumatic stress disorder, the diagnostic criteria in Instrument No 76 of 1998, the relevant Statement of Principles for alcohol dependence or abuse, do not include exposure to a traumatic event. Such an event may be relevant to the development of the condition but is not an essential component of its diagnosis. I am reasonably satisfied that this constitutes an appropriate diagnosis and that this condition is to be considered in response to Mr Helion’s claim. Accordingly, it must be determined whether or not Mr Helion’s alcohol dependence or abuse is war-caused under section 9 of the Act.
Principles of Causation
Deledio Steps 1-3: Is there a reasonable hypothesis?
41. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. The hypothesis advanced in this matter is that relating to the “skirmish” in which Mr Helion claimed to have taken part in at Da Nang. Although I have determined, on the balance of probabilities, that this did not happen, it nevertheless constitutes an hypothesis of a relationship between Mr Helion’s operational service and his alcohol dependence or abuse.
42. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. As noted above, this is Instrument No 76 of 1998. The relevant factor and associated definition read:
(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe 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.”
43. The third Deledio step does not involve the making of findings of fact but requires a consideration of the hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. On the version of events as detailed by Mr Helion, including his high level of alcohol consumption in post-service years, there is material which points to the factor and associated definition as noted above and, therefore, a reasonable hypothesis of a relationship between alcohol dependence or abuse and Mr Helion’s service is raised.
Deledio Step 4: Is the condition war-caused?
44. As the hypothesis is reasonable, it is necessary to consider the fourth of the Deledio steps. The condition will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case, for example, where the factual basis on which the hypothesis rests, is not made out. I have already determined, on the balance of probabilities, that the event relied upon by Mr Helion as the basis of the causal connection with service did not occur. I am also satisfied beyond reasonable doubt that the event not occur. That being so, Mr Helion’s condition of alcohol dependence or abuse is not war-caused.
Decision
45. The decision under review is affirmed.
I certify that the preceding 45 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ............................................................
Legal Research Officer
Date/s of Hearing 2 February 2007
Date of Decision 22 February 2007
Counsel for the Applicant Ms A Frizelle
Solicitor for the Applicant Smith and Associates Solicitors
Representative for the Respondent Mr M Smith
0
7
0