Herbig and Repatriation Commission
[2004] AATA 911
•27 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 911
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/43
VETERANS' APPEALS DIVISION ) Re KEITH FRANKLIN HERBIG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date27 August 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant’s generalised anxiety disorder was war-caused.
D.G Jarvis
(signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - whether veteran suffers from generalised anxiety disorder - consideration of stressors - objective assessment of state of affairs constituting stressor – meaning of “severe psychosocial stressor” – participation in counter penetration force patrols – witnessing hoax shooting of close friend – firing on fishing boat from reconnaissance flight – homosexual activity – seeing burning village from reconnaissance flight – calling in artillery fire on distant lights when on sentry duty- decision under review set aside.
Veterans’ Entitlements Act s 9, 13(1), 120(1), 120(3) and 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
REASONS FOR DECISION
27 August 2004 Deputy President D G Jarvis 1. On 4 May 2001 the applicant, Keith Franklin Herbig, lodged a claim for a pension for incapacity for (inter alia) emotional and behavioural problems. In a decision made on 23 September 2001 a delegate of the respondent diagnosed the applicant’s condition as adjustment disorder with depressed and angry mood, but refused the applicant’s claim on the ground that his condition was not war-caused. The applicant applied to the Veterans’ Review Board (“VRB”) to review the delegate’s decision, and on 14 January 2003, the VRB varied the diagnosis to generalised anxiety disorder, but affirmed the delegate’s decision rejecting the applicant’s claim. In these circumstances, the decision made by the respondent as so varied is reviewable by this Tribunal under s 175(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). On 3 February 2004 the applicant applied to this Tribunal for review of the respondent’s decision on the grounds that it erred in failing to accept that he had been subjected to a severe psychosocial stressor within two years before the clinical onset of anxiety disorder.
2. The applicant was represented by Mr C Swan of Swan Lawyers and the respondent was represented by its advocate, Mr A Crowe. The applicant gave evidence, and a psychiatrist, Dr Michelle Atchison, and Messrs Terry Gygar, Gary Conyers, Warren John Chambers and David Raymond Woodcock also gave evidence in support of the applicant’s case. John Murray Church of Writeway Research Service Pty Ltd gave evidence for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of other documents, to which I will refer as appropriate later in these reasons. I have carefully considered all of the evidence and documentary material before me.
Issues Before the Tribunal
3. The issue before the Tribunal was whether the applicant’s condition of generalised anxiety disorder was war-caused pursuant to s 9 of the VE Act. The respondent accepts that the applicant is suffering from this condition, and so the question of diagnosis is not in issue.
4. It was common ground that if the applicant is successful in his claim, the date of effect would be 4 February 2001.
Background
5. The applicant was born on 9 March 1948. He served in the Australian Army from 30 January 1968 until 29 January 1971. It is agreed that for the purposes of the VE Act he was engaged in operational service in Vietnam from 18 March to 17 December 1970. The applicant worked as a cook during his operational service. I will refer later in these reasons to evidence that he experienced certain stressful events during his operational service which, it is asserted, should lead the Tribunal to determine that his condition was war-caused.
6. In his original decision, the delegate allowed the applicant’s claim for certain conditions other than the condition of generalised anxiety disorder, and assessed his pension entitlement at 40% of the general rate with effect from 4 February 2001. These aspects of the delegate’s decision are not in issue in these proceedings.
Legislative Framework
7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
8. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
9. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
10. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his condition of generalised anxiety disorder is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
11. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.
12. Section 196A of the VE Act provides for the establishment of the Repatriation Medical Authority (“RMA”). Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a statement of principles (“SOP”) in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Evidence Before the Tribunal
13. According to the applicant’s witness statement, he lived on a farm near Mannum, a country town in South Australia, and went to school at two area schools. He then completed a Diploma of Teaching, and deferred his National Service so that he could do so.
14. He commenced National Service on 30 January 1969, and after completing his basic training was placed in the Australian Army Catering Corps where he received further training. He was then posted to an army base in NSW and worked as a cook for approximately seven months. After that he volunteered for service in Vietnam, and after completing a jungle training course at Canungra in Queensland, he went to Vietnam on 18 March 1970.
15. Mr Herbig was appointed to 161 Independent Recce Flight at the Australian Task Force Base at Nui Dat, and worked as a cook with the rank of private in a field kitchen at the Luscombe air strip. He was part of a catering team comprising himself, a sergeant and Lance Corporal Greg Townsend. There was some confusion in the evidence regarding roster arrangements, but it appears that he had a rostered day off every other day.
16. The applicant said that Lance Corporal Townsend had been in Vietnam since January 1970 and was exceedingly helpful to him in ensuring that he settled in and learned the cooking routine. Mr Herbig said that he and Lance Corporal Townsend were about the same age and had a lot in common, and quickly developed an excellent working relationship in the kitchen and over a period of time developed a special friendship, which for a time apparently included a sexual relationship.
17. Mr Herbig said that while he was attached to 161 Recce Flight he experienced six stressful events and that as a result, he developed an anxiety disorder soon after returning to Australia. He was asked in cross-examination to rank the six events in order, according to what frightened him the most. I will refer to these six events in the same order in which Mr Herbig ranked them in answer to this question. The events may be briefly referred to as follows.
(a) Approximately once a month from June 1970 onwards, following the sounding of an alert siren, Mr Herbig would go to an assembly point near the air strip with other persons who were part of a counter penetration force (“CPF”). Mr Herbig and the other members of the CPF would then board armoured personnel carriers (“APCs”) and would be transported towards the perimeter wire of Nui Dat. The CPF was responsible for repelling any enemy assault force which might have attacked Nui Dat until the CPF was relieved by an infantry company mounted in a troop of APCs.
(b) Mr Herbig witnessed the apparent shooting of Lance Corporal Townsend, and believed that Townsend had been shot and taken away in a first aid jeep, but he later learned that the shooting had been a hoax.
(c) After voluntarily joining a reconnaissance flight Mr Herbig was requested by the pilot to fire an automatic weapon over a fishing boat which was in a restricted area, and he was concerned that he might have hit people on the boat.
(d) Mr Herbig engaged in anal sex in the presence of two other soldiers while he was on sentry duty.
(e) Whilst participating in a reconnaissance flight (and there was contradictory evidence as to whether or not it was the same flight as mentioned in paragraph (c) above) Mr Herbig saw a village that appeared to have been recently burnt, with smoke coming from the village.
(f) On one occasion when he was on rostered sentry duty at the end of Luscombe air field he saw lights about 20 km away, apparently from enemy who were moving in the direction of the distant mountains, and called for artillery fire, resulting in a couple of rounds fired towards the vicinity of the lights.
18. In his witness statement (exhibit A2) the applicant said that he believed the onset of his clinical anxiety disorder began as the result of the stressors he experienced in Vietnam. He referred in this context to experiencing terror when participating in the Counter Penetration Force APC’s, the compounding of his anxiety as a result of the incident when he was instructed to fire over the bow of the fishing boat, and seeing Lance Corporal Townsend appear to be shot, as having had a deep and lasting impact on him and having worried him on a continual basis during his life. He said that on his return from Vietnam he became nervous, irritable, impatient and aggressive, and had intrusive thoughts about his involvement in the CPF and seeing Greg Townsend being shot, and he found it difficult to sleep at night, resulting in constant tiredness.
19. Mr Herbig said that when he returned from Vietnam he taught at various schools, starting with the Nailsworth Technical High School in 1971. He said that outcomes of his behaviour following his return from Vietnam became evident at work. As an example, he said that while teaching in a plastics workshop in February 1971, a student’s apron became caught in a buffing machine and was ripped off the student. As it flapped around the buffing wheel at a high speed it made the sound of an automatic weapon firing and Mr Herbig’s response was to “hit the floor”, because the sound brought back memories of Vietnam. He said that on another occasion he responded excessively when disciplining a student, by hitting the student with a piece of timber, and this aggressive response concerned him.
20. The applicant said that in late February or early March 1971 he saw a Dr Beck about his anxiety, inability to sleep, tiredness and excessive thoughts about his experiences in Vietnam. Dr Beck prescribed Diazepam for anxiety and sleeping tablets. Mr Herbig said that he responded to the medication he was given, but did not want to remain on tablets, and adopted alternative strategies to control his difficulties. However, he said that he had had many periods of several months where he became very anxious and tense, and he had regularly used yoga, meditation and spiritual faith for emotional strength. He said he had also pursued various activities, namely working out in the gym, bushwalking, rock climbing, surfing and travel in order to help control his anxiety and worry, and he maintained these activities until recent years when ill health interfered with some of the activities. Mr Herbig ceased work as a teacher in April 2001, because of persistent harassment from the community and students at the school where he had been teaching, due to his homosexuality. He then went on sick leave and later claimed workers’ compensation, and resigned from his teaching position on about 2 July 2002.
21. The T Documents (exhibit A1) include a copy of a medical report dated 26 June 2001 from Dr M Ewer, a psychiatrist, and a copy of a report from another psychiatrist, Dr Michelle Atchison, dated 27 March 2002 (T11, pages 53 – 59 and T19, pages 85 – 92 respectively). According to his report, Dr Ewer considered that the applicant fulfilled the DSM-IV diagnostic criteria for a generalised anxiety disorder when he first returned from Vietnam, and that he continued to suffer from that disorder for eight or so years, although at the time of his examination, Dr Ewer diagnosed Mr Herbig as suffering from an adjustment disorder with depressed and anxious mood. Dr Atchison concluded that Mr Herbig was suffering from a generalised anxiety disorder and that it arose directly out of his Vietnam war service. Dr Atchison provided a supplementary report dated 27 February 2004 (exhibit A5) in which she confirmed her opinion. Dr Beck, the general practitioner whom Mr Herbig consulted following his return from Vietnam, provided a letter in which he said, in effect, that he had retired some eight years previously, and had been informed that Mr Herbig’s records could not be found, and had apparently been destroyed (exhibit A3).
Consideration
22. In order to determine the issue arising in this matter I first refer to the approach laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“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.”
23. I have considered all of the material before me and I am satisfied that the material points to certain hypotheses connecting the condition of general anxiety disorder with the circumstances of the applicant’s operational service. Further, a SoP has been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the condition in question, and that SoP, as mentioned above, is the Anxiety SoP. These findings address the first two steps in Deledio, and were not disputed by the respondent’s advocate.
24. I now turn to third step described in Deledio. This entails determining whether the relevant hypotheses contain one or more of the factors referred to in the relevant SoP. Once again, this step involves considering the material before the Tribunal, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
25. In the present matter, it is agreed that the relevant SoP is Instrument No. 1 of 2000 in respect of Anxiety Disorder (the “Anxiety SoP”, T22, at page 98). Under clause 4 of the Anxiety SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 of the Anxiety SoP provides relevantly as follows:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder … only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…”
In clause 8, the words “severe psychosocial stressor” are defined to mean:
“An identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
26. The expression “anxiety disorder” in factor 5(a)(ii) is defined in clause 2(b) of the Anxiety SoP as follows:
“For the purposes of this Statement of Principles, ‘anxiety disorder’ is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9…”.
The expression “generalised anxiety disorder” is in turn defined in clause 8 of the Anxiety SoP.
27. On the material before me the only relevant factor is that referred to in clause 5(a)(ii) of the Anxiety SoP. This must be read in conjunction with the definition of “severe psychosocial stressor”. In clause 5(a)(ii) of the Anxiety SoP, reference is made to the “clinical onset” of anxiety disorder. The meaning of these words was considered by this Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668. The Tribunal concluded at [23] that:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
This approach was referred to without disapproval by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
28. In White v Repatriation Commission [2004] FCA 633, Spender J decided that the definition of “severe psychosocial stressor” in the Anxiety SoP embodied both objective and subjective elements. His Honour said at [29 – 30]:
“29. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
29. Having regard to Spender J’s judgment in White (supra) as well as the judgments of Mansfield J and the Full Court in Repatriation Commission vStoddart (2003) 77 ALD 67 and the judgment of the Full Court in Woodward v Repatriation Commission (2003) 75 ALD 420, and the decision of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 I consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “severe psychosocial stressor” in the Anxiety SoP, and whether the applicant has experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).
30. I am mindful that paragraphs (b), (c) and (e) above address issues that are related to a point expressly reserved by the Full Court in Woodward (supra). After quoting from extracts of the judgment of Mansfield J at first instance in Stoddart, the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, but added (at [141]):
“… we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
31. Whilst noting the Full Court’s reservations as set out in the preceding paragraph, I consider that the summary set out in paragraph 29 above sets out the effect of the present state of the relevant authorities, including White (supra). Of course, the requirement for a decision-maker to determine whether a particular occurrence satisfies the objective requirements of the definition of the stressor raises difficult issues where there is no evidence as to any specialised meaning or usage. In Delahunty (supra), Tamberlin J pointed out that the concept of the man on the Clapham omnibus was inappropriate in the present context. I consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra)). Even so, this suggested characterisation is of only limited assistance, because the Armed Forces could include experienced soldiers who have been exposed to combat situations on many occasions, as well as (particularly in the case of veterans who have seen service in Vietnam) young soldiers who have completed their formal training, but have not previously been in a war zone or been involved in combat experience. I further consider that in the absence of evidence as to how to assess the objective requirements of the definition, some guidance is afforded by the examples included in the definition of occurrences that would constitute a “severe psychosocial stressor”.
32. In considering the third step in Deledio, I first refer to the incident when Mr Herbig called for artillery fire as a result of seeing lights outside the perimeter when he was on sentry duty. On the material before the Tribunal, this event did not involve being shot at, or death or serious injury of a close friend or relative, or assault, being the most relevant of the examples included in the definition of “severe psychosocial stressor”. Further, it was not the sort of event which might be expected to evoke feelings of substantial distress in an individual. Having regard to the requirements of the definition of “severe psychosocial stressor” and the considerations referred to in paragraphs 29 and 31 above, I consider that the evidence before the Tribunal in relation to this event does not give rise to an hypothesis which would meet the objective requirements of the definition of the relevant stressor, and accordingly, I find that that hypothesis does not meet the provisions of the SoP.
33. As regards the incident involving anal sex on sentry duty, there is material before the Tribunal in the form of the report from Dr Atchison that this constituted a sexual assault. However, there is no material before me that this caused any substantial distress to the applicant. I accordingly find that this episode does not satisfy the requirements of factor 5(a)(ii) of the Anxiety SoP.
34. As regards the burning village seen from the reconnaissance flight, there is no evidence that any person had been injured or killed, and I find that the material before the Tribunal does not satisfy the objective requirements of experiencing a severe psychosocial stressor.
35. As regards the remaining three occurrences referred to in paragraph 17 above, I consider that there is material before the Tribunal in relation to those occurrences which points to hypotheses which meet the factor referred to in clause 5(a)(ii) of the Anxiety SoP, taking into account my above analysis of what is required to satisfy the definition of “severe psychosocial stressor”, and which also meets the requirement that the clinical onset of the disorder must have occurred within two years of experiencing a severe psychosocial stressor. I refer to the following material in relation to each of the remaining three occurrences.
(a) As regards the participation in the CPF patrols, I consider that the material in the claim form (see paragraph 40 below), coupled with the evidence of the applicant, provides evidence that this incident occurred, and this material meets both the objective and subjective requirements of the definition of “severe psychosocial stressor”. In particular, the facts asserted in the claim form indicate that the base was under attack, and that those participating in the patrols were involved in a combat situation outside the perimeter wire of the base.
(b) The material as to the participation in these patrols raises a further hypothesis that the applicant’s PTSD was caused by the applicant’s mere involvement in the patrols in circumstances where he thought that the alerts were live alerts, but (contrary to the assertions of the claim form) he did not go outside the perimeter wire or become involved in a combat situation, and he and the other soldiers involved merely waited in a state of readiness inside the APCs until they received an all clear to return to the assembly point. On this further hypothesis, and not withstanding that I must assess the facts from the point of view of a reasonable person in the position of and with the knowledge of the applicant, I consider that that material would not meet the objective requirements of the definition of “severe psychosocial stressor”. The facts and material on which this alternative hypothesis is based are not akin to the examples included in that definition (see paragraph 31 above).
(c) There is evidence before the Tribunal that the mock shooting of Lance Corporal Townsend occurred and that it evoked the subjective feelings required by the definition, and I find that the evidence as to this incident raises an hypothesis which satisfies the objective requirements of the definition.
(d) As regards the firing from the reconnaissance flight, there is material before the Tribunal in the form of the evidence from the applicant, Dr Ewer and Dr Atchison that this involved shooting at the fishing vessel and a risk of injuring or killing someone on it, and that the applicant was very distressed by this risk. Accordingly, I find that the material before the Tribunal as to this occurrence raises an hypothesis which fits factor 5(a)(ii) of the SoP.
36. I accordingly turn to the fourth stage of the process explained in Deledio. I will now make findings of fact from the material before the Tribunal, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity was war-caused. I will consider in turn the remaining hypotheses referred to in sub-paragraph 35(a), (c) and (d) above.
Participation in CPF Patrols
37. Of the stressors which Mr Herbig described, he said that it was most frightening being involved in the patrols where he participated in the counter penetration force. In his evidence, Mr Herbig said that when the sirens sounded he would put on his bullet proof vest and helmet, retrieve his rifle and ammunition and move to an assembly area at the end of the Luscombe air strip where the members of the CPF would wait for armoured personnel carriers. When they arrived the members of the CPF would board them, and the APCs would move towards the perimeter. While this was happening, the artillery defence battery would be fired from the base. Mr Herbig said that he was never told that the alerts were merely a drill, and on each occasion he thought that the patrol was in response to a “live event”. He said that once the CPF personnel had entered an APC, he could not see where they were going. When the APC stopped moving, they would be kept on standby for up to 15 to 30 minutes. He said that he had been trained as a cook and although he had received some additional training in connection with his membership of the CPF, he did not feel adequately trained. He said that on each occasion when he was involved in a CPF patrol he feared for his life.
38. Mr Gygar gave evidence that he was assigned as the commander of the First Australian Task Force CPF. He said that the CPF consisted of one officer and approximately 10 other personnel selected from drivers, clerks, cooks and ancillary troops who did not have vital combat roles in 161 Recce Flight. The role of the CPF was to stand to during alerts and be prepared to immediately move to any area where the perimeter wire had been breached by an enemy assault force. The CPF’s mission was to physically position themselves in that breach and to repel any enemy until such time as they were relieved by the Ready Reaction Force (an infantry company mounted in a troop of APCs which was designed to be on alert, but which would take up to 30 minutes to mobilise and reach the threatened area). Mr Gygar explained that the base was fitted with alert sirens like World War II air raid sirens which were sounded when the base was under attack. He said that the First ATF standing orders required that practice alerts be held approximately every four weeks to test defence readiness.
39. Mr Gygar confirmed the applicant’s evidence as to the matters referred to in paragraph 37 above, and said that the alerts happened approximately every four weeks to test defence readiness. He also confirmed that when the alerts were sounded, it was not known whether it was a drill or live alert, and this uncertainty was compounded by the discharge of the artillery defence battery. He also said that the practice alerts occurred according to a random and unpredictable timetable, and always, to his recollection, at night. He also confirmed that the time between the sounding of the alert and the “all clear” was one of significant stress for members of the CPF. He said that they were quite aware of the hazardous nature of their mission should the task force be attacked.
40. Mr Herbig made other references to the APC patrols in the material before the Tribunal. His original claim form is included in exhibit A1 (see T5, pages 24 – 39). At page 28 of exhibit A1, the following question and answer appears:
“Q. How do you believe your service caused, contributed to, or aggravated this disability?
A. During 1970 Nui Dat was under attack and my duties included external (outside wire) patrols in APCs (two) six personnel in each and we would persue/patrol enemy until they disappeared down tunnels. During those instances I was scared and feared for my life. Other duties incl night watch/sentry duty on air strip and when enemy were located we would call down artillery fire. Other duties incl aerial reconnasce flights (1/2 hours) and in some instances (at least two) we (incl myself) fired upon (SLR) boats/junks and on other occaissions we flew low over burning villages as part of our reconnasce duty.” (sic)
41. The answer referred to in the preceding paragraph was written by the witness David Raymond Woodcock, who assisted the applicant to make his claim, and filled in the claim form. The answer differed substantially from the applicant’s evidence in relation to the APC patrols (as well as his evidence in relation to other stressors, and I will refer to these further inconsistencies below).
42. The applicant himself filled out exhibit R2, being the psychosocial stressor questionnaire form. He described his experience in participating in the APC patrols and said that these occurred “when the Viet Cong attacked or were seen near the Nui Dat boundary”. According to the medical report dated 26 June 2001 from Dr Ewer (exhibit A1, T11, page 53) Mr Herbig also told Dr Ewer that the APC patrols occurred when the Viet Cong attacked.
43. According to Dr Atchison’s amended report of 27 March 2002 (exhibit A4), he told her that he took part in “several counter defence patrols in APC’s outside the Nui Dat perimeter when the base was under attack” (emphasis added).
44. Mr Herbig said in re-examination that he did not tell Mr Woodcock that the patrols had gone outside the perimeter wire or that they had pursued the enemy until they disappeared down tunnels. When the differences between his evidence and the answer on page 28 of exhibit A1 were drawn to his attention, Mr Herbig said further that Mr Woodcock had suggested things to him that he might have seen, and that Mr Woodcock had provided an embellished version of what he had told him. However, he said that he did not read the form carefully enough before signing it, and the writing was hard to read and he did not check that every detail was accurate. Notwithstanding the applicant’s rash imprudence in signing the form in these circumstances, I accept his evidence in relation to the APC patrols, and in particular, his evidence that he was not aware at the time of the patrols that they had not involved enemy attacks, but were merely drills or practice alerts.
45. At the suggestion of the Tribunal, the applicant called Mr Woodcock who gave evidence by telephone. At the commencement of his evidence, Mr Woodcock requested that he be permitted to use a speaker phone, but during the course of his evidence whispering by another person was heard, and this other person was apparently assisting Mr Woodcock to give his evidence. The Tribunal immediately queried this, and the telephone connection was then severed at the witness’s end.
46. Mr Woodcock later resumed his evidence, but without using a speaker phone. He confirmed that he filled out the claim form but said that apart from remembering that he had been told about the homosexual incident involving Mr Herbig’s partner where someone pretended to shoot him, the other individual stressors referred to by Mr Herbig did not stick in his mind. He said that he was aware of the difference between internal and external TAOR patrols, and that he had been in 110 Signals Squadron and the word “TAOR” patrols was embedded in his mind because he lost his hearing in one. He explained that a TAOR patrol was an overnight ambush patrol. He conceded that it was possible that Mr Herbig told him of something which did not require him to go outside the wire. He also said that he is deaf, and he interviewed Mr Herbig at the Vietnam Veterans’ Federation’s Glenelg branch, where there were no separate offices but just three tables in an open hall and other interviews were occurring at the same time. He said that he recalled that one of the other pension officers knew of the applicant’s family and they had to keep their conversation low because part of the conversation related to homosexual events. He also said that it was possible that he got the message wrong because of his hearing, and that if Mr Herbig referred to patrols then he himself would say “TAOR” and go from there. He said it was not his “usual practice” to write down or describe an incident that was not related to him, and that he “normally” wrote down what people had told him and his usual practice was to make an accurate record of what he had been told, but it was possible that he had made an incorrect record. In cross-examination, he denied that he had exaggerated the answer to help the claim.
47. The answer on the claim form referred to in paragraph 40 above makes no reference to two further stressors referred to by Mr Herbig, namely the hoax shooting of Lance Corporal Townsend, and the event involving anal sex whilst the applicant was on sentry duty. As to the first matter, Mr Woodcock said that he advised Mr Herbig to omit that incident from the claim, because if the hoax shooting was not in writing there was not much chance of it succeeding. He also advised him to omit reference to the sexual occurrence, because the claim would be disputed if it was not reported, but he could discuss this with the psychiatrist (an apparent reference to Dr Ewer) at his interview, and this matter might complicate a claim which the applicant was then making for workers’ compensation against his former employer, the Education Department.
48. Insofar as the form related to the occurrences which were recorded, the answer referred to above indicates an embellishment of the accounts given by Mr Herbig of the relevant events. As to the reconnaissance flights, he says that there were at least two instances when the applicant (and apparently another person, according to the answer) fired upon boats or junks, and he also says that on other occasions (without saying how many) Mr Herbig “flew low over burning villages” (emphasis added). There is no suggestion in any other evidence before me that anyone other than Mr Herbig fired upon a boat, or that this happened on more than one occasion, and there is no suggestion that he saw more than one burning village, or that this occurred on more than one occasion.
49. I found Mr Woodcock to be an unreliable witness, and that he embellished the information provided by Mr Herbig in a misguided attempt to help his claim to succeed. Mr Herbig claimed that he was tense when on the occasion he filled out the form, because he was then experiencing difficulties due to the harassment he was experiencing at work. However, he signed the form, and should have been well aware that this formed the basis on which his claim would be assessed.
50. Mr JM Church of Writeway Research Service investigated Mr Herbig’s assertions regarding his participation in the CPF. He found that there were no records of any attacks against the Nui Dat base, “especially” in the area of 161 Independent Recce Flight’s arc of responsibility (exhibit R4, page 3.1). This is confirmed by Mr Gygar.
51. I have found that the applicant was not aware at the time that those occurrences were merely drills and not live alerts, and I must assess the objective requirements of the definition of “severe psychosocial stressor” from the point of view of a reasonable person in the position of and with the knowledge of the applicant. Nevertheless, the events must have been such as to produce a substantial level of distress in an individual. I am satisfied beyond reasonable doubt that in fact no enemy attacks occurred on any of the occasions when the siren was sounded and that Mr Herbig was taken to the perimeter wire but not outside the wire. These alerts did not therefore lead to an event of the kind referred to in the examples included in the definition of “severe psychosocial stressor”. On the contrary, the personnel involved in the CPF were simply taken to a position in readiness for possible combat. Mr Herbig said in cross-examination that he never got out of an APC when on a patrol, and (contrary to the information in the claim form to which I referred in paragraph 40 above) he never pursued, or even saw, a Viet Cong soldier. I am satisfied beyond reasonable doubt that the respondent has disproved the facts which would support the hypothesis referred to in paragraph 35(a), and would satisfy the requirements of clause 5(a)(ii) of the Anxiety SoP. The applicant’s claim accordingly fails insofar as it is based on this hypothesis.
Mock Shooting of Lance Corporal Townsend
52. In his evidence, Mr Herbig said that about two weeks before he was due to return to Australia he heard shouting and saw that his friend, Greg Townsend, was being pursued by a group of soldiers. He heard them shout, “I’ll get you”, or something similar, and they fired and Greg fell. He said that he stood there shocked and a group of people arrived. In his witness statement he referred to a first aid jeep arriving which took Greg away. He said that he was too upset and scared to get involved. He was later told by another soldier that the incident was a prank, and he believed that the other persons involved were reprimanded.
53. As mentioned above, the applicant made no mention of this incident in his claim form (exhibit A1, T5, page 28), although he was adamant that he told Mr Woodcock about this incident. Whilst Mr Woodcock said in evidence that he had some recollection of Mr Herbig telling him of this hoax shooting incident, I do not accept Mr Woodcock’s evidence for the reasons mentioned above. In any event, Mr Woodcock’s explanation for omitting this incident from the claim form is unconvincing.
54. The applicant was cross-examined about discrepancies in the various accounts of this event. He admitted telling Dr Ewer that several hours passed before he was informed that the event was a hoax, whereas in his evidence he said that he knew this within 15 minutes or perhaps straight away, but in any event soon afterwards. He also said that he did not himself attempt to assist Greg Townsend after this incident or even make any inquiries himself as to how he was. In the psychosocial stressor questionnaire the applicant referred to Mr Townsend “firing shots followed by a couple of soldiers” and this appears to be the history given by him to Dr Atchison. However, the applicant said in evidence that he could not recall whether Mr Townsend had a weapon, but was definite that he did not fire a weapon. Further, in his witness statement, the applicant refers to Mr Townsend being pursued by “another soldier” (exhibit A2, page 5.5), but elsewhere he referred to a group of soldiers, and also to 2 soldiers. The applicant’s evidence as to his belief that Mr Townsend, or the persons involved, were reprimanded is contradictory and unsatisfactory. Finally, according to Dr Ewer’s report, Mr Herbig told him that an ambulance attended, but Dr Atchison’s report refers to a vehicle, his evidence and witness statement refer to a first aid jeep, and the psychosocial questionnaire form makes no reference to any vehicle.
55. Paragraph 9 (misnumbered as paragraph 7) of the Writeway Research Service report (exhibit R4) states with reference to this incident:
“LTCOL Calvert denies that the incident described by the veteran occurred. Had the soldiers been severely reprimanded he would have had to deal with their charges as they involved unauthorised discharge of weapons, which was considered a serious offence. Such an incident would have been recorded, noting that disciplinary action was mandatory in all circumstances.”
The report does not say that there was no record of charges being brought against the soldiers involved; it merely leaves this to be inferred, on the basis that if there had been, severe reprimand charges would have followed and Lieutenant Colonel Calvert would have become aware of such charges. I am prepared to draw this inference, but it is not satisfactory that the report is expressed in indirect language and requires the Tribunal to draw an inference from what is reported. Lieutenant Colonel Calvert was unavailable, through ill health, to give evidence. A statement from him was received as exhibit R1. In this statement Lieutenant Colonel Calvert says that he has no recollection of the incident but if it did occur as a hoax it would seem unlikely that an ambulance would have been called by the perpetrators and, furthermore, any reprimand would in all probability have been administered by himself. The contents of exhibit R4 and the unavailability of Lieutenant Colonel Calvert to confirm his statement (exhibit R1) affect the weight which the Tribunal can attach to this evidence.
56. Mr Herbig said that he endeavoured to make contact with Greg Townsend some years after returning from Vietnam, but he had moved from the last address known to him. He later heard that he died about 10 years ago. None of the witnesses who gave evidence before the Tribunal were in a position to confirm that this event occurred. The applicant’s memory of the relevant events has, no doubt, been affected by the fact that the relevant events happened so many years ago, and his evidence in relation to this matter was most unsatisfactory.
57. The respondent’s advocate properly conceded that if the occurrence did occur, it met the objective requirements of the definition of “severe psychosocial stressor”. However, he invited me to find that the applicant was such an unreliable witness that the Tribunal should conclude that the applicant’s evidence as to this event was a fabrication, and the event did not happen. In considering this submission, I am mindful of the provisions of s 119(1)(h) of the VE Act, which relevantly provides as follows:
“119(1) In considering, hearing or determining, and in making a decision in relation to: …
(a) a claim or application;
…
the Commission:
…
(h) … shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran … was not reported to the appropriate authorities.”
58. I am also mindful that the applicant is entitled to the benefit of the reverse onus of proof beyond reasonable doubt provided for in s 120(1). As mentioned above, the occurrence in question was not referred to at all in the applicant’s signed claim form. I am most concerned that the applicant signed the claim form notwithstanding the inaccurate statements in it, to which I have already referred. The applicant’s evidence before the Tribunal was most unsatisfactory and contradictory, particularly in relation to this incident. There is some evidence in the form of exhibits R1 and R4 to the effect that the incident did not occur, but the weight of this evidence is affected by the matters to which I have referred above. The applicant did refer to this incident in the psycho-stressor questionnaire form, which he completed in his own hand on 12 June 2001 (being about six weeks after the date of the claim form), and he referred to this incident when he saw Dr Ewer approximately two weeks later. Were it not for the provisions of s 120(1), I would not be satisfied that this incident occurred, having regard to my concerns about the unreliability of the applicant’s evidence. However, notwithstanding these concerns, I am not satisfied beyond reasonable doubt that this incident did not occur.
59. In his evidence, Mr Herbig said that when he saw the soldiers fire and Greg fall, he stood there shocked, and added that he was his best mate, and he was frightened. He said that this had a “very bad effect” on him and it caused a cooling of his friendship in the two weeks before he left Vietnam, and he worried over why Greg participated in the hoax. In cross-examination, he said that he felt let down, upset and rejected because Greg was a special friend and he believed that he should have told Mr Herbig that this would happen. However, Mr Herbig did not, as one might have expected, rush to Mr Townsend’s assistance, or even attempt to find out for himself what had happened. I am satisfied from the evidence that he found out very quickly after the event that it had been a hoax. In his witness statement, Mr Herbig said that as some other soldiers attended the scene he remained on duty as he was too “upset/scared” to get involved (exhibit A2, page 5.8). I also note that Dr Atchison recorded that Mr Herbig felt “extraordinarily distressed by this event and terrified”. Having regard to the evidence before the Tribunal, and to the reverse onus of proof beyond reasonable doubt, I am not satisfied that the applicant’s assertion that this occurrence evoked feelings of substantial distress has been disproved beyond reasonable doubt. It follows that the objective and subjective elements of the definition has been satisfied and this hypothesis is therefore a reasonable one.
Firing Over Fishing Boat from Reconnaissance Flight
60. Because of my conclusions in relation to the mock shooting occurrence, it is not necessary for me to consider the remaining stressor relied upon by the applicant. However, in case I am wrong in my analysis of the mock shooting incident, I now turn to the evidence in relation to the above occurrence.
61. In his evidence before the Tribunal, Mr Herbig said that he fired a weapon from outside the window of the aeroplane as it dived on the fishing boat. He said that he was instructed by the pilot to fire over the boat, but said that he fired at the boat, but that he did not aim at any people on the boat, and could not remember whether he saw people on the boat. In his witness statement (exhibit A2), the applicant said that he fired across the bow of the boat. In the psychosocial questionnaire form (exhibit R2), he said the pilot instructed him to fire “on the boat” (emphasis added). In cross-examination, he said that he was not aiming to hit the boat. He said he felt anxious about what had happened and could have hit someone, and he did not go on any further reconnaissance flights after that occasion. After he returned from the flight he said he probably took up his normal activities. Once again, the applicant’s evidence as to this occurrence was most unsatisfactory. The claim form (exhibit A1, T5, at page 28) contains further inconsistencies in relation to this occurrence.
62. Mr Gygar confirms that in his experience at 161 Recce Flight, persons regularly involved in such flights included mechanics, clerks, drivers, storemen, batmen, cooks and administration officers. He also said that on missions he fired on the enemy or on suspicious activities from the aircraft.
63. I find that a reasonable person in the position of and with the knowledge of the applicant would have concluded that, at most, there was merely a possibility that someone on the fishing boat might have been hit by the firing from the aircraft, but there is no evidence that in fact anyone was injured or killed by this fire. I also find that this occurrence was such that it could not reasonably be expected to produce a substantial level of distress in an individual. I find on the evidence before me that the occurrence involving the fishing vessel did not involve an occurrence which satisfied the objective requirements of the definition, and so did not constitute a severe psychosocial stressor within the meaning of factor 5(a)(ii) of the Anxiety SoP.
Sexual Occurrence Whilst on Sentry Duty
64. In case I am wrong in my conclusion in paragraph 33 above as to the relevance of this incident, I will now record my findings of fact in relation to it. Mr Herbig said that on one occasion when he was on sentry duty with three other soldiers, they became aroused and he had anal sex with a transport private while the two other soldiers watched on. However, he found that this was too painful and he stopped it. He said that this was a significant factor in discovering his homosexuality, but he accepted that he was homosexual and it was no longer an issue for him. There is no suggestion in the history obtained by Dr Ewer that this consisted of a sexual assault, and on the contrary, Dr Ewer refers to Mr Herbig having engaged in “consensual anal intercourse” (exhibit A1, T11, page 54.8). I also note that in exhibit R2, the applicant acknowledges that he was not physically forced into this experience. In his witness statement he refers to having been “cajoled into having consensual anal penetration” (exhibit A2, page 6.4), but goes on to say that the “attempted penetration was painful and I stopped it”. On the evidence before me I find that this episode did not constitute a sexual assault, as postulated by Dr Atchison in her later report (exhibit A5). I also note that she did not refer to this incident in her earlier report.
65. On the evidence before me, and having regard to the applicant’s ability to cease participating in this event, as in fact he did when it became too painful, I find that this incident does not satisfy the objective requirements of the definition of “severe psychosocial stressor”. I further find beyond reasonable doubt that the applicant did not experience feelings of substantial distress, and so this occurrence does not satisfy the requirements of clause 5(a)(ii) of the Anxiety SoP.
Seeing the Burning Village from the Reconnaissance Flight
66. For the sake of completeness, I also refer back to the above occurrence. Once again, there are contradictions in the applicant’s evidence as to this event, in that in his evidence he said that he saw the burning village on the same flight as the fishing boat occurrence, but his handwritten narration in exhibit R2 says that these events happened on two separate occasions, and as mentioned above, the claim form refers to his having flown over burning villages on other occasions. He said in his evidence that the aircraft circled over the village which appeared to have been burned the night before. In cross-examination, he said that there were 10 houses in the group and 2 were burning, but the other houses may not have been damaged. He could see the smoking remains of the two houses, but he did not see any people or any other signs of activity. He said he assumed the houses had been attacked the night before by enemy, but acknowledged that there could have been some other cause of the fire.
67. Mr Herbig did not describe, either in his evidence or in his witness statement, his subjective reaction to seeing the burning houses, but acknowledged that when he returned from the reconnaissance flight he probably carried out his normal activities. The absence of evidence as to his substantive reaction does not, however, constitute proof beyond reasonable doubt that he did not experience the feelings of substantial distress necessary to satisfy factor 5(a)(ii).
68. Nevertheless, on the evidence before me, I am satisfied beyond reasonable doubt that the applicant did not see any indication that the houses had been attacked by enemy forces, or that any person had been seriously injured or killed as a result of the burning houses, and that only two houses were burning. I therefore conclude that this occurrence does not satisfy factor 5(a)(ii) of the Anxiety SoP.
Conclusion
69. For the above reasons, having regard to my findings in relation to the mock shooting, I am satisfied beyond reasonable doubt that the applicant’s condition of generalised anxiety disorder was war-caused.
Decision
70. The decision under review is set aside, and in place of that decision I determine that the applicant’s generalised anxiety disorder was war-caused.
I certify that the 70 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N. Quirke AssociateDate/s of Hearing 22 and 23 March 2004
Date of Decision 27 August 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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