Howlett and Repatriation Commission
[2007] AATA 1736
•6 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1736
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700039
VETERANS' APPEALS DIVISION ) Re JEFFREY ARTHUR HOWLETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date6 September 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in place of that decision decides that:
(a) it is not satisfied that the evidence that was before the Repatriation Commission when it made its initial decision to accept that the applicant’s conditions of post-traumatic stress disorder and alcohol dependence were war-caused was false in a material particular; and
(b) having regard to the matters affecting the payment of a pension that were not before the Commission when that initial decision was made, the applicant’s pension should not be decreased
and the Tribunal accordingly directs the Repatriation Commission to reinstate the applicant’s entitlement to pension on the basis that the conditions of post-traumatic stress disorder and alcohol dependence are war-caused.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – review of own motion by respondent of earlier decision to accept PTSD and alcohol dependence as war-caused – asserted shooting of sampan by American gun-boat and asserted scare charge event – reviewable decision that pension be reduced because having regard to new evidence, PTSD and alcohol dependence not war-caused – consideration of Statement of Principles – short duration of stressful event – Tribunal not satisfied that evidence before earlier decision-maker was false in a material particular or that evidence not before earlier decision-maker was such that applicant’s pension should be reduced – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 31, 120(1), 120(3) and 120A
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Davis v Repatriation Commission (1997) 74 FCR 577
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Fenner v Repatriation Commission [2005] FCA 27
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 September 2007 Deputy President D G Jarvis 1. Jeffrey Arthur Howlett was engaged in operational service on HMAS Sydney at the time of two events which he asserts occurred in Vung Tau Harbour in South Vietnam in November 1970 and in February 1971. He suffers relevantly from post-traumatic stress disorder (“PTSD”) and alcohol dependence. In a decision made on 11 May 2001, a delegate of the Repatriation Commission accepted those conditions as being war-caused, and Mr Howlett received a disability pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) in respect of his resulting disability.
2. However, another delegate of the Commission subsequently undertook a review under s 31 of the VE Act, having regard to certain matters affecting the payment of Mr Howlett’s pension that were not before the delegate when his decision to grant the pension was made. That delegate then decided, on 31 March 2006, that Mr Howlett’s disability pension should be reduced to 40% of the general rate. This decision was made on the basis of certain further evidence that had emerged since the Commission’s earlier decision to grant the pension, and the second delegate decided that on the evidence then available, he was not satisfied that the decisions to accept PTSD and alcohol dependence were correctly made. He accordingly reassessed Mr Howlett’s pension and reduced the rate from the intermediate rate to 40% of the general rate, with effect from 25 April 2006.
3. Mr Howlett subsequently applied to the Veterans’ Review Board (“VRB”) seeking a review of the Commission’s decision to reduce his pension. The VRB affirmed the decision, and Mr Howlett applied to this Tribunal to review the Commission’s decision.
Issues before the Tribunal
4. The parties presented their arguments at the hearing before me on the basis that the issues are whether the above conditions of PTSD and alcohol dependence are war-caused for the purposes of the VE Act.
5. Those issues will ultimately need to be determined in order to decide the present proceedings. However, on my analysis, in considering a review of an earlier decision of the Commission pursuant to ss 31(4) and 31(6)(a) of the VE Act, the issues for the decision-maker are:
(a)whether the decision-maker is satisfied that the evidence before the delegate who made the initial decision on 11 May 2001 to accept the two conditions in question as war-caused was false in a material particular; and
(b)whether, having regard to any matter that affects the payment of the veteran’s pension, being a matter that was not before the Commission when that initial decision was made, the pension should be decreased, on the grounds (in this case) that the two conditions in question were not war-caused.
These issues involve an evaluation of the evidence that was before the initial decision-maker, and of the evidence that has subsequently become available, and comparing it with the evidence originally available.
6. There is no issue in the present proceedings as to diagnosis, in that the parties accept the diagnosis of the conditions of PTSD and alcohol dependence.
Background
7. Mr Howlett joined the Royal Australian Navy when he was 17, and served from 20 June 1970 until 26 June 1980. He did recruit training at HMAS Cerberus. He was then posted to HMAS Sydney to continue his training. He later graduated as an ordinary seaman electrical management.
8. In addition to the two conditions that are relevant to the determination of these proceedings, Mr Howlett has certain disabilities that are accepted by the Commission as service related, namely a ruptured spleen with splenectomy, post-concussional headaches, lumbar spondylosis and sensorineural hearing loss of the right ear. He has certain other disabilities that have not been accepted.
9. The Commission’s initial decision to accept Mr Howlett’s conditions of PTSD and alcohol dependence was apparently based on a medical report from a psychiatrist, Dr M Ewer, dated 17 April 2001 (exhibit R1, T23, page 188). In this report, Dr Ewer referred to having obtained a history from Mr Howlett of two stressful experiences, namely witnessing an American gun boat firing on and killing a fisherman on Mr Howlett’s first trip to Vietnam, and on a subsequent trip to Vietnam, being intensely frightened by an explosion from a scare charge when he was in the engine compartment of a landing barge attending to its batteries, in the course of his duties. Dr Ewer diagnosed PTSD and alcohol dependence, and considered that those conditions were directly related to Mr Howlett’s war service in Vietnamese waters.
10. The delegate’s decision of 31 March 2006 to decrease Mr Howlett’s pension was based on further evidence that had become available since the earlier decision of 11 May 2001, which according to the delegate was as follows:
· reports from Writeway Research Service dated 30 January 2003 and 10 March 2004 (which related to claims of two other veterans);
· the outcome of an application to this Tribunal following the hearing of proceedings brought by one of those veterans which relied on one of the two events relied upon by Mr Howlett; and
· comments provided by a number of officers who had stated that they were present at the time of the event in question.
The Asserted Stressors
11. At the hearing in this Tribunal, Mr Howlett gave evidence as to the two events referred to in Dr Ewer’s report. I will refer to these events as the sampan event and the scare charge event.
12. The sampan event : Mr Howlett’s evidence as to this event was as follows. On the second day of his first visit to Vietnam, that is on 1 November 1970, he had been asleep in a boat space on the port side of the Sydney. He could not recall whether there were any other people in the boat space. He saw a sampan that looked like a long, open, wooden canoe, with no deck covering, approximately 150 to 200 metres from the Sydney. There was an old man on the sampan who was sculling. He also saw a buoy quite close to the sampan with a line from the buoy. The Sydney’s anchor had been lowered, but the Sydney was swinging on its anchor towards the sampan. Mr Howlett then heard a high revving engine noise, and he saw a black US gun boat come around from the stern of the Sydney. He then heard a sound of heavy calibre machine-gun fire, saw rounds from the gun boat cut through the boat and cut the man in half. The gun boat then did one and a half circles around the sampan, and then left in the direction from which it had come. The whole episode happened very quickly.
13. Mr Howlett said that after this, he was shaking and frightened and horrified. He said he could not believe that people could treat another human being in the way he had witnessed.
14. Information was provided to the Commission after the date of the initial decision that indicates that the sampan event did not occur. This information is contained first in the two reports from Writeway Research Services to which I have referred above. The author of the Writeway reports obtained statements from Lieutenant Commander I McConnochie, who at the relevant time was a Lieutenant and the Special Sea Duty Officer of the Watch in 1970, Lieutenant Commander KJ Fitzgerald, who was then a Lieutenant and the Assistant Diving Officer, Commodore JS Dixon, the Sydney’s Navigating Officer, and Rear Admiral N Ralph, who was then the Sydney’s Executive Officer. All of these persons had no knowledge of or recollection of any incident such as the one described by Mr Howlett in the present proceedings. In addition, the Writeway reports enclosed the Sydney’s Reports of Proceedings for October and November 1970 and February 1971. These Reports of Proceedings were not in evidence before me, but it was not disputed that there was no mention in these Reports or in the ship’s log of the sampan incident or anything like that incident.
15. In the present proceedings the Commission called Mr Fitzgerald and Rear Admiral Ralph to give evidence. They described their respective activities, duties and responsibilities as officers of Sydney on 1 November 1970, and they each confirmed that they could not recall the event described by Mr Howlett, and that they had not received any report of any event such as he had described. They also described the measures that would have been taken by the crew of the Sydney on 1 November 1970 as it entered Vung Tau Harbour, lowered its anchor and commenced unloading operations. In view of the conclusions I have reached in relation to the scare charge event, it is unnecessary for me to refer in detail to the evidence of these two witnesses, or to the other evidence before me relating to the sampan event.
16. The scare charge incident : Mr Howlett’s evidence as to this event was as follows. The incident happened on his second trip to Vietnam, in February 1971. He was still only 17 at the time. By the time of this trip he was working on his trade on the Sydney with the battery leading seaman.On the day in question he was on duty in a landing craft. He had done one or two runs into the harbour, and the landing craft had come back and was secured alongside the Sydney. He said that he went into the engine compartment of the landing craft to check the batteries in the craft. The engine compartment was a confined space below water level with a head height of about five feet, so that he had to crouch over.
17. When he was in the engine compartment he heard an explosion. He said it felt as if it resonated right through the engine compartment and “scared the living day-lights out of (him)”. He said that he had never heard that type of noise before, and he was terrified and did not know what had happened. He said that he either fell over or stumbled backwards away from the batteries and was scared stiff. He thought that the batteries may have exploded or that the landing craft or the Sydney was under attack.
18. After the explosion occurred he immediately replaced the cap on the battery that he had been checking, got out of the engine compartment by ascending a ladder, and then started to climb a Jacobs ladder from the landing craft to the Sydney. As he climbed this ladder he saw people on the Sydney pointing and laughing, but the explosion had affected his hearing and he could not hear them. He said his hearing returned after about 20 to 30 minutes, but he was left with ringing in his ears. He later realised that the explosion was due to a scare charge. He said that he had heard scare charges before when he was on board the Sydney, and he described the noise they made, in terms that indicated that they had not caused him to be concerned. He also said that he hurt his back when he was on the landing craft, but was unable to say whether this was because he had strained his back when sliding another battery to gain access to the battery that he was checking, or whether he had hurt his back when he stumbled or fell backwards because of the noise of the explosion.
19. In cross-examination he said that he became aware that the landing craft had not come under attack when he saw the people laughing and pointing as he was climbing the Jacobs ladder. He also said that he went backwards away from the battery because he was concerned about the danger of the acid in the battery. After climbing back on board the Sydney he reported to sickbay. The attendant checked his ears, and he was put on light duties because of his back pain.
20. Mr Howlett was also cross-examined as to how long had elapsed before he realised that there was no danger to his life or limb. He said he did not know, and gave varying estimates of 60 to 90 seconds, then suggested 2 minutes, but said he was not sure, and “fear does some funny things”. He finally agreed to a period of 30 seconds or “maybe” 45 seconds.
Legislative Background
21. Provision is made in s 31 of the VE Act for the Commission to have certain powers to conduct an internal review of its decisions in a range of circumstances. In the present matter, it will be necessary to consider the possible application of ss 31(4) and 31(6)(a). Section 31(4) empowers the Commission to review a decision if it is satisfied that evidence before it when it made a decision was false in a material particular.
22. Section 31(6)(a) provides relevantly as follows:
“Where the Commission is satisfied that:
(a)having regard to any matter that affects the payment of a pension … being a matter that was not before the Commission … when the decision to grant the pension … was made;
…
… a pension … should be cancelled or suspended or is being paid at a higher rate than it should be … the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension … with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.”
23. It is common ground in the present matter that Mr Howlett was engaged in operational service at the time of the two events that he relies on as the stressful events that caused his conditions of PTSD and alcohol dependence.
24. 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; …”
25. The determination of whether Mr Howlett’s asserted conditions of PTSD and alcohol dependence are 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.”
26. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a 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.”
27. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
28. The parties did not identify at the hearing in this Tribunal the evidence and material that was before the Commission as at 11 May 2001, when the Commission decided to accept the conditions of PTSD and alcohol dependence as war-caused. However, exhibit R1 (the T-Documents) includes material that post-dates the decision of 11 May 2001, and obviously that material could not have been taken into account at the time of the initial decision. Further, neither party contended that any of the material before me that pre-dated the initial decision was such that it would have led to a variation of the initial decision, or the need to review the decision under s 31 of the VE Act. I will therefore consider the relevance of the subsequent material. It has been held that the further information that can be considered on a review under s 31(6)(a) is not confined to matters in existence when the initial decision was made: Davis v Repatriation Commission (1997) 74 FCR 577.
29. The advocate for the Commission, Mr Crowe, contended that I should find that the sampan event did not occur, and that the scare charge event did not satisfy the relevant test of causation, in that it did not amount to Mr Howlett having experienced a severe stressor within the meaning of the relevant SoP, and so I should find that the two conditions were not war-caused. He further contended that I should therefore affirm the Commission’s decision to review the initial decision, and its decision to decrease Mr Howlett’s pension by not taking the two conditions into account.
30. The claimed conditions of PTSD and alcohol dependence are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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.”
31. In considering whether there is an hypothesis connecting Mr Howlett’s conditions with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
32. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkel JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
33. As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed conditions with Mr Howlett’s operational service. That hypothesis is that one or more of the asserted events to which I have referred above resulted in Mr Howlett suffering the conditions in question, and accordingly that those conditions are war-caused.
34. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoP in respect of PTSD is Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999 (the “PTSD SoP”, being exhibit A5), and is the SoP currently in force. The SoP in respect of alcohol dependence is Instrument No. 76 of 1998 (the “Alcohol SoP”, being exhibit A6).
35. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
36. Under clause 4 of the PSTD SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being in this case operational service) by the veteran. Clause 5 then provides relevantly as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder … with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or …”.
37. In the case of the Alcohol SoP, the factor relied upon by Mr Howlett is as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence … with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence …”.
It was common ground that Mr Howlett was suffering from PTSD at the time of the clinical onset of alcohol dependence.
38. Mr Crowe accepted that the sampan incident met the criteria of experiencing a severe stressor in the PTSD SoP. However, as mentioned above, he submitted that the scare charge event would not meet the criteria, and submitted that I should therefore find that that hypothesis was not reasonable. He pointed out that according to his evidence, Mr Howlett had experienced scare charges previously, and when the sampan event occurred, Mr Howlett realised after a very short interval of time that he was not in danger of death or serious injury. Further, Mr Crowe pointed out that after the explosion Mr Howlett replaced the cap on the battery that he was working on, and this indicated that he was not unduly affected by the event.
39. In Stoddart v Repatriation Commission (2003) 74 ALD 366 Mansfield J discussed the meaning of the expression “experiencing a severe stressor” in the PTSD SoP and the Alcohol SoP, including in particular the concept of “threat” referred to in that expression. His Honour said that the definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances. In Woodward v Repatriation Commission (2003) 75 ALD 420 the Full Court of the Federal Court, at [138] quoted at length his Honour’s observations, and at [139] summarised Mansfield J’s views as follows:
“In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
40. At [141] the Full Court said that it considered the reasoning of Mansfield J to be persuasive and that it should be followed. A differently constituted Full Court subsequently rejected an appeal against Mansfield J’s judgment (Repatriation Commission v Stoddart (2003) 134 FCR 392). The Full Court in Woodward reserved its position in relation to a situation where a perception of a threat, although real in the mind of an individual, was not objectively reasonable, but that situation does not arise on the material before me in this case.
41. In the present matter, there is evidence that Mr Howlett was confronted with an event that caused him to be terrified for his own safety, in that he thought that either the Sydney or the landing barge was under attack and was also concerned about the risk of injury from acid in the battery; that he was in a situation that he had never previously experienced, because he was in a confined space below the water line in a small vessel; and that the noise of the explosion was such as to result in a loss of hearing for 20 to 30 minutes. His service record indicates that this event happened on only his second trip to Vietnam, and that he was only 17 years of age at the time. There was also evidence of the concern about the potential for the Sydney to be attacked by enemy divers or mines in Vung Tau Harbour (which was a war zone), evidence that Mr Howlett was alone in the landing barge when the explosion occurred, and evidence as to his subjective reaction to the explosion. A number of the above aspects of the scare charge event differentiate it from the circumstances existing on other occasions when sailors on board the Sydney in Vung Tau Harbour might have experienced the use of scare charges.
42. I have taken into account the evidence as to the short duration of the event. I accept that that is potentially relevant to a determination of whether the material before the decision-maker satisfies the requirements of the definition of “experiencing a severe stressor”. However, in my view this aspect should not be considered in isolation, but as part of all relevant surrounding circumstances in which the asserted stressful event occurred, including the state of the veteran’s knowledge, understanding and perception of those events, and (in the case of the PTSD SoP) the veteran’s subjective reaction to those events. I think my view as to the relevance of the duration of a stressful event is consistent with the approach of Mansfield J in Fenner v Repatriation Commission [2005] FCA 27, at [51] (where his Honour indicated that the existence of fear of being torpedoed for a shorter period than a period of half an hour referred to in the Tribunal’s decision on appeal might qualify as experiencing a severe stressor) and the approach of Tamberlin J in Guy v Repatriation Commission [2005] FCA 562 at [19] and [20] (where his Honour regarded an event as potentially meeting the definition notwithstanding that the Tribunal had described the event as “an anxious moment” until the veteran had been able to remove himself from a boiler room and disconnect the electricity supply).
43. Taking into account the evidence before me as to the above matters, including the evidence as to Mr Howlett’s state of knowledge at the time, I conclude that there is evidence before me that the scare charge event meets the criteria of experiencing a severe stressor, within the meaning of the PTSD SoP, as that expression has been explained in the authorities to which I have referred.
44. For the above reasons, I consider that the hypothesis raised by the material before me in relation to the two events is consistent with factor 5(a) of the PTSD SoP and factor 5(a) of the Alcohol SoP, and so by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Howlett’s conditions with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act (which would mean that Mr Howlett’s claim would fail if I had concluded that the hypothesis was not reasonable) does not therefore apply.
45. I now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, 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 in question was war-caused. If I am not so satisfied, Mr Howlett’s claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, I note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). I also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.2, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
46. I have carefully considered the evidence before me in relation to the scare charge event. Mr Howlett’s evidence as to that event was in substance consistent. It was submitted on behalf of the Commission that there is some disparity between the history of that event as narrated in Dr Ewer’s report of 17 April 2001 (T23, exhibit R1, page 188). However, the doctor was not called to give evidence and the relevant inconsistencies were not put to Mr Howlett in cross-examination, and I have no way of assessing the accuracy of the history narrated in the report. In any event, I do not regard the inconsistencies as being of significance, since the substantive matters that meet the criteria in factor 5(a) of the PTSD SoP are included in the description in the medical report.
47. The Commission produced persuasive evidence to the effect that the sampan event did not occur. It was not contended, however, that if I accepted this evidence and found accordingly, my resulting rejection of Mr Howlett’s evidence should lead to my rejecting his evidence of the scare charge event. Mr Howlett gave clear evidence as to that event; his evidence appeared to be credible, and I would not be disposed to reject it by reference to any adverse finding as to his evidence in relation to the sampan event. I also record that no evidence was adduced to disprove the scare charge event, or of any other facts that were inconsistent with that event, in order to disprove the hypothesis based on that event.
48. For all of the above reasons I am not satisfied beyond reasonable doubt that the scare charge event did not occur.
49. In view of my conclusion in relation to that event, I do not find it necessary to make any concluded finding as to the sampan event. I have noted that whilst Mr Crowe accepted that diagnosis of the two relevant conditions was not in issue, he pointed out that the medical report from Dr Ewer dated 17 April 2001 (exhibit R1, T23, page 188) referred to both the sampan event and the scare charge event, in the context of the doctor’s consideration of the relationship of the psychiatric condition to war service (see exhibit R1, T 23, at page 192). Dr Ewer does not appear to take into account that the scare charge event (which has led me to reach the conclusion that the conditions are war-caused) occurred after the sampan event.
50. However, it is accepted that Mr Howlett is suffering from PTSD and alcohol dependence. I have decided that the hypothesis arising from one of the two events, namely the scare charge event, constituted the experiencing of a severe stressor, and accordingly, by virtue of the PTSD SoP, the hypothesis is reasonable, and the occurrence of the event was not disproved beyond reasonable doubt. Those circumstances lead to the conclusion, in accordance with s 120 of the VE Act, that the conditions are war-caused. I also observe that the two events happened within a space of less than four months of each other, and it may be very difficult for a psychiatrist to differentiate between the relevance of the two events so long after they occurred. Dr Ewer was not called to give evidence as to that issue. In any event, the question of causation depends not on the opinion of a medical witness, but on the proper application of the provisions of s 120 and 120A of the Act, entailing the concept of reasonableness as determined by the relevant SoP.
51. It follows from my above conclusions that I am not satisfied that the further evidence that was available to me but not to the delegate who made the initial decision is such as to make it appropriate to cancel, suspend or reduce Mr Howlett’s pension insofar as it had taken into account the conditions of PTSD and alcohol dependence. Further, I am not satisfied that evidence before the initial decision-maker was false in a material particular, because on a proper analysis, the new evidence does not displace the conclusion that the two conditions of PTSD and alcohol dependence were war-caused.
Decision
52. I set aside the decision under review and decide that:
(a)I am not satisfied that the evidence that was before the Repatriation Commission when it made its initial decision to accept that the applicant’s conditions of PTSD and alcohol dependence were war-caused was false in a material particular; and
(b)having regard to the matters affecting the payment of a pension that were not before the Commission when that initial decision was made, the applicant’s pension should not be decreased
and I accordingly direct the Repatriation Commission to reinstate the applicant’s entitlement to pension on the basis that the conditions of post-traumatic stress disorder and alcohol dependence are war-caused.
I certify that the 52 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 22, 23 and 24 August 2007
Date of Decision 6 September 2007
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr Adrian Crowe
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