Hyland and Repatriation Commission
[2003] AATA 597
•26 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/267
VETERANS' APPEALS DIVISION
Re: DENIS CHARLES HYLAND
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: M.J. Carstairs, Member
Date: 26 June 2003
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder is war‑caused within the meaning of the Veterans' Entitlements Act 1986 with effect from 2 July 2000 and remits the matter to the respondent for assessment of the rate of pension.
(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ depressive disorder ‑ whether war‑caused ‑ whether severe psychosocial stressor ‑ whether clinical onset within two years of stressor
Veterans’ Entitlements Act 1986 s9, 120, 120A
O’Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Hill [2002] FCAFC 192
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
26 June 2003 M.J. Carstairs, Member
1. This is an application by Denis Charles Hyland (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 14 December 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 8 December 2000 to refuse a claim for disability pension for depressive disorder because the condition was not war‑caused.
2. At the hearing of this matter on 18 March 2003 and 2 June 2003 Ms J. Bornstein of counsel, instructed by Williams Winter Solicitors, represented the applicant and Mr G. Purcell of counsel, instructed by the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with five exhibits (Exhibits A1-A5) lodged by the applicant and six exhibits (Exhibits R1-R6) lodged by the respondent.
BACKGROUND
4. The applicant was born on 12 December 1948. After leaving school at the age of 17 years he went into the family business as an apprentice butcher. He served with the Australian Army from 22 April 1970 to 9 December 1971 as a national serviceman. The applicant served with the 25th Supply Platoon, Royal Australian Army Service Corps in Vietnam from 28 April 1971 to 28 October 1971. In accordance with s9 of the Veterans’ Entitlements Act 1986 (the Act), this period was operational service.
5. After his discharge the applicant returned to the family business for four years, then worked for a further two years in other butcher shops. He decided to operate a florist business, which he sold after seven years and returned to the meat trade for two years. He was first married in 1974 and the marriage lasted four years. In 1983 he re-married, before separating in 1998. After the second marriage ended his general practitioner prescribed anti-depressant medication and the applicant sought counselling for anxiety and anger.
6. On 2 October 2000 the applicant lodged a claim for disability pension for hearing loss and tinnitus, solar skin damage and generalised anxiety disorder. On 8 December 2000 the respondent diagnosed the conditions as bilateral sensorineural hearing loss, chronic solar skin damage, anxiety disorder and bilateral tinnitus, and determined that the chronic solar skin damage and bilateral tinnitus were war-caused within the meaning of the Act. On 2 February 2001 the applicant lodged an application with the VRB for review of the decision regarding anxiety disorder, and claimed that his depressive disorder arose after he saw his former recruit training instructor lying injured in a hospital in Vietnam.
7. On 5 February 2001 the respondent accepted that the sensorineural hearing loss in the left ear was war-caused, and assessed the rate of pension at thirty per cent of the general rate. On 19 March 2002 the applicant sought review by the Tribunal of the decision in relation to depressive disorder.
EVIDENCE
8. In a written statement dated 22 May 2003 (Exhibit A4) the applicant stated that he was posted to 25th Sup Pl (Supply Platoon) at 1 ALSG (First Australian Logistic Support Group) at Vang Tau in Vietnam as a tradesman butcher after completing recruit training at the 2nd Recruit Training Battalion at Puckapunyal in April 1970 (2RTB). In an earlier written statement dated 8 April 2002 (Exhibit A3) the applicant said that he saw no actual enemy action in his service. However, he was aware that there had been many instances of allied soldiers being killed or wounded by those whom they thought were civilians and some incidents had been perpetrated by children. Consequently, he felt on edge throughout his time in Vietnam and found the general environment to be stressful. He said he believed that this general feeling of apprehension accounted for the significant emotional reaction he experienced upon seeing Corporal Andy Anderson, who had been his section commander during recruit training at Puckapunyal, badly injured in hospital in Vung Tau. Corporal Anderson had suffered extensive injuries when a rocket propelled grenade (RPG) exploded against his machine gun when he was on patrol.
9. In the written statement dated 22 May 2003 (Exhibit A4) the applicant said that he had gone to the hospital to visit a friend, Mr John Mellema, who had suffered a hand injury. He had met John Mellema when they were at recruit training together. He was able to visit Mr Mellema as his platoon was located near the Australian hospital. The applicant stated that early this year he learned that Mr Mellema had died in October 1999. In April 2003 he made contact with Mr Mellema’s widow, who provided him with photographs showing Corporal Anderson in hospital in Vang Tau, together with a written statement by Mrs A. C. Mellema dated 21 May 2003 (Exhibit A5) confirming that her late husband had taken some slides while in hospital in Vietnam and she had them developed into photographs.
10. In oral evidence the applicant said that he held Corporal Anderson in high regard. He had heard about him before he undertook his training, as a friend of his had been in a previous intake trained by Corporal Anderson. The applicant said that he had looked up to Corporal Anderson during recruit training as a warm and friendly man who took a personal interest in the recruits. He said that on camp, Corporal Anderson would sit with them at the fire at night and discuss personal matters. The applicant said that he hoped he could emulate Corporal Anderson as an exceptional soldier. He said that Corporal Anderson had given him the nickname of Pat, a reference to Pat Hyland a well-known jockey. When he saw him in the hospital, Corporal Anderson recognised him and called him by the nickname. The applicant said that he considered Corporal Anderson to be a friend by the end of recruit training.
11. The applicant stated that he was shocked to see Corporal Anderson wounded and bandaged. He said that though a sheet covered him, he understood that he had lost an arm and a leg. He said that Corporal Anderson told him that there was a problem with his leg. The applicant said that on seeing Corporal Anderson he felt devastated, angry, depressed and helpless. He said that he started to suffer nightmares involving weapons and body parts. He said he felt unsettled on his return to Australia and was irritable with others. He said that he thought continuously about his experiences in the war, and the helplessness he had felt. The applicant emphasised that these feelings became worse when Australian soldiers were sent to East Timor. He said that while he knew that he was having emotional problems after service, he was too proud to admit it and only in recent years had he sought professional assistance, after joining the Vietnam Veterans’ Association.
12. Under cross-examination the applicant agreed that he had been successfully self-employed for over twenty years and had not sought treatment for any depressive condition.
13. In a written statement dated 1 May 2001 (Exhibit A2) Ms L. Parker, the applicant’s second wife, said that the applicant suffered from extreme mood swings after his service in Vietnam. She said that they had met socially in 1976 and married in 1983. She described how unhappy he became, and that he was deeply affected by his wartime experiences, though reluctant to speak about his time in Vietnam. She confirmed that he had considerable difficulty in adjusting to life in Australia as a civilian, and referred to family stories passed on to her about the applicant’s difficulties immediately after his return from Vietnam. Ms Parker stated that the applicant felt that family and friends did not understand him, and eventually she ended the marriage because she could no longer tolerate his anger, frustration and depression.
14. In a written report dated 11 June 2002 (Exhibit A1) Dr E. Cole, psychiatrist, stated:
He was exposed to a number of stressors in the course of his service in Vietnam, including the encounter with a friend who had been severely wounded. I believe that these stressors can reasonably held responsible for his condition, particularly as many of his symptoms reflect his wartime experiences.
15. In oral evidence Dr Cole added that he had not addressed the question of diagnosis in detail as the VRB had accepted that the applicant had a depressive disorder. Under cross-examination Dr Cole said that he considered that the condition was a reactive depression rather than major depression. It was Dr Cole’s view that the condition was present before the applicant returned from Vietnam. He said that depression is not a condition that will necessarily prevent a person working, and many people do not seek treatment.
16. In a written report dated 2 October 2002 (Exhibit R4) Dr L. Walton, consultant psychiatrist, stated that the applicant exhibited clinically a mixed anxiety/depressive disorder, and that a formal diagnosis of depression not otherwise specified might be appropriate. Dr Walton noted that the applicant related the onset of psychological symptoms to exposure to his seriously wounded friend. Dr Walton considered that the applicant did suffer substantial distress over the event, although Dr Walton raised some doubt as to whether Corporal Anderson could be described as a close friend. Dr Walton concluded that:
…I believe this man would attract a valid clinical diagnosis of a chronic depressive disorder but it seems that it was not until his condition deteriorated surrounding the military activities in East Timor that Mr. Hyland was moved to seek professional assistance, and it is at least arguable that a diagnosable depressive disorder did not exist prior to that.
17. In a written report dated 1 December 2000 (T7), Dr C. Seabridge, consultant psychiatrist stated that the applicant did not fulfil the criteria for a formal psychiatric diagnosis. In a written report dated 7 August 2001 (T15) Dr J. Gelb, consultant psychiatrist, stated that the applicant was anxious and somewhat depressed. He said that he disagreed with Dr Seabridge about diagnosis, stating that the applicant had a depressive disorder that had developed as a result of experiencing the severe psychosocial stressor of seeing Corporal Anderson so badly injured, within two years immediately before the onset of the depressive disorder.
18. In a written report dated 1 June 2002 (Exhibit R2) Mr J. Tilbrook, of Writeway Research Service, stated that he had spoken to Mr Anderson about the claims by the applicant, and that Mr Anderson could not recall the applicant from his time as an instructor at 2 RTB. There were a large number of recruits and familiarity between instructors and recruits was discouraged. According to Mr Tilbrook Mr Anderson had no recollection of a visit from the applicant while Mr Anderson was recovering from his wounds.
19. Mr Tilbrook stated that Mr Anderson described that he had the following injuries: his hair and scalp had been torn back in the explosion and were resewn onto his head; he had multiple fragmentation wounds over his face, lips, neck, arm and shoulders; he had sutures in his chest and his skin had turned nearly entirely black due to bruising; half his nose had been blown away; he had shrapnel wounds to both eyes; and his left arm was amputated above the left elbow.
20. In his written research notes (Exhibit R6) Mr Tilbrook recorded a note of telephone discussions with Mr Anderson as follows:
Does not support Mr Hyland’s claims, but he was drugged up much of the time, and could have been asleep when visitors came to Hosp at VT.
21. In oral evidence by telephone, Mr Anderson, retired, said that he had been Regimental Drill Instructor at Puckapunyal in the period February 1969 to July 1970. He conducted drill and weapon training for the recruits. He said that he was injured as crew commander in charge of a Centurion tank that came under enemy fire. He suffered injuries to his eyes, received shrapnel wounds to his body, lost part of his left arm and sustained a severe injury to the groin. He said that he was sedated in hospital and only recalled visitors from his unit and someone who took a photograph of him. He said that he suffered head injuries from a depressed fracture of the skull and underwent several operations. He said that he could remember little of the time as he was under sedation. He agreed in cross-examination that anyone could have visited him without his knowledge.
22. Mr Anderson said that his practice was to address trainees as “recruit” or by their surname. He did not use nicknames, though he acknowledged that if he was talking to a recruit on a personal basis without others present he probably then would have used a person’s nickname. He said also that he had no knowledge of horse racing and would not have given such a nickname to the applicant. During recruit training he said there was little contact of a personal nature with recruits, although he said that sometimes recruits would discuss personal matters at night or on camp. He said that he had no recollection of the applicant, and there were many recruits in the platoon. Under cross-examination he agreed that in recruit training the aim was to build up team spirit amongst the trainees and settle them as soldiers.
CONSIDERATION OF THE ISSUES
23. Section 9 of the Act provides:
(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;
…
24. Section 120 of the Act provides:
(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.
…
25. The provisions dealing with the standard of proof in claims made after 1994 are to be found at section 120A. It provides, so far as relevant, as follows:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(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.
26. The principles to be applied in cases where s120A applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a series of four steps:
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.
27. There was no dispute between the parties that the applicant suffers from a depressive disorder. In determining whether the applicant’s depressive disorder was war‑caused the Tribunal must first consider all the material before it and decide whether that material points to a reasonable hypothesis linking the disease, through the existence of medical factors, to the circumstances of the particular service rendered by the applicant.
28. The Tribunal is then required to ascertain whether there is a relevant Statement of Principles (SoP) in force. Ms Bornstein noted that there was no dispute between the parties that the applicable SoP was Nº 58 of 1998 concerning depressive disorder. Risk factor 5(b) of that SoP provides:
5.The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting depressive disorder or
death from depressive disorder with the circumstances of a person’s
relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical onset of depressive
disorder;
29. In the SoP, severe psychosocial stressor is defined in clause 8 in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury of a close friend or relative, assault
(including sexual assault), severe illness or injury, experiencing a loss
such as divorce or separation, loss of employment, major financial
problems or legal problems;
30. If an SoP is in force, the Tribunal must form an opinion whether the hypothesis raised is a reasonable one. It will only be so if it is consistent with the template to be found in the SoP. If not the claim will fail. Ms Bornstein submitted that the hypothesis fitted the template. Ms Bornstein submitted that, upon the applicant’s evidence, the sight of Corporal Anderson, a man he regarded as indestructible, lying seriously injured in hospital caused the applicant substantial distress. The extent of the injuries, she said, was set out in official reports and in the historical publication Jungle Tracks (Exhibit R2) where it was recorded that Corporal Anderson suffered terrible shrapnel injuries. The extent of the injuries was confirmed by Mr Anderson’s oral evidence.
31. Ms Bornstein submitted that the applicant regarded Corporal Anderson as a friend, and his evidence was that Corporal Anderson was a person the applicant held in high esteem. The applicant’s evidence was that prior to service he had no emotional problems but that after seeing Corporal Anderson he suffered nightmares and mood swings and the change in his mental state was ongoing. Ms Parker, who had known the applicant from 1976, supported that evidence. Dr Cole’s evidence was that the applicant had a depressive condition dating from Vietnam. Ms Bornstein submitted that the words of the SoP referring to death or serious injury of a close friend or relative are provided as examples only and should not be used to defeat the claim. She submitted that while Mr Anderson did not identify the applicant as a friend, this did not diminish the feelings that the applicant had towards Mr Anderson, as a role model and an inspiration.
32. Ms Bornstein submitted that the decision of the Federal Court in O’Neil v Repatriation Commission (2001) 34 AAR 290 was authority for the proposition that the test for a severe psychosocial stressor requires no more than examining whether the occurrence happened and whether the person experienced distress.
33. Ms Bornstein submitted that any inconsistencies in the applicant’s recollections were understandable given the effluxion of time and that s119 of the Act allows for this to be taken into account.
34. Mr Purcell submitted that the evidence did not support any close friendship having developed between the applicant and Mr Anderson. He submitted that there was a stark contrast between the evidence of the applicant and that of Mr Anderson. On Mr Anderson’s evidence there was little contact between the applicant and himself, and no close personal friendship was shown. He submitted that if it was sufficient that a person be merely a colleague, there would have been reference to this in the examples given in the SoP. He submitted that on all the evidence the requirements of the SoP were not met.
35. Mr Purcell also submitted that the applicant's credit was in issue, as there were a number of contradictions between his evidence and that of Mr Anderson. He submitted that the applicant was wrong about details of Mr Anderson’s early life and background, which confirmed that there was no deep friendship established. In particular, it was Mr Anderson’s evidence that he had no interest in horse racing and had not given the nickname Pat to the applicant. Furthermore, the applicant had described Mr Anderson as having sustained shocking injuries and the loss of his right leg to various doctors and this was disproved. He submitted that the applicant did not know the extent of the injuries, and the giving of different versions cast serious doubt on the applicant’s evidence generally. He submitted that the applicant was also incorrect in details about how Corporal Anderson had been injured. Mr Purcell submitted that Corporal Anderson’s comprehension and lucidity in hospital would not have been so affected as to make his version of events unreliable.
36. Mr Purcell submitted that, the requirement of the SoP, that clinical onset be within two years of experiencing a severe psychosocial stressor, was not met, on the evidence of Dr Walton. He submitted that it was more likely that the depressive disorder was attributable to relationship breakdowns. He submitted that as Dr Cole had taken no firm position on diagnosis his views on onset of the condition should not be preferred.
37. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
38. In this case there was no dispute between the parties, and the Tribunal finds, accepting the evidence of Drs Cole, Gelb, and Walton, that the applicant suffers from a depressive disorder. In applying the four‑step test as outlined in Deledio, after taking into account all relevant matters, the Tribunal finds that the material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant.
39. In respect of the second step, there was no dispute between the parties, and the Tribunal finds, that at the relevant time SoP Nº 58 of 1998 concerning depressive disorder was in force and applicable.
40. In respect of the third step, for a hypothesis to be reasonable where an SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. In relation to factor 5(b) of the SoP it is necessary that the evidence points to an incident that meets the definition of severe psychosocial stressor and that the evidence points to the onset of depressive disorder within two years of the experience of the incident.
41. The definition of severe psychosocial stressor in the SoP for depressive disorder is similar to the definition of stressful event looked at by the Federal Court in O’Neil. In that case North J said that the definition, which provided that a stressful event means an occurrence which evokes feelings of anxiety or stress, requires that a decision-maker look at the experience, which will be something peculiarly personal and dependent upon subjective feelings. He said that the task of the Tribunal was to determine whether it could be satisfied that the applicant actually subjectively felt anxious.. He rejected the submission that a decision-maker had to make a separate (‘objective’) assessment of whether an occurrence was of such a character that it could be described as an occurrence that evoked feelings of anxiety or stress (in the present case, had feelings of substantial distress). His Honour said, at p292:
… It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.
42. Although the definition of severe psychosocial stressor in the SoP for depressive disorder is more detailed, particularly as examples are given, the approach in O’Neil applies. The task of the decision-maker is to be satisfied, to the relevant degree, that there was an identifiable occurrence and that the person experienced substantial distress in reaction to it.
43. The Tribunal considered that the applicant gave evidence to the best of his recollection, of events that occurred thirty years ago. The applicant has been consistent, in material particulars, in his accounts to medical practitioners of the effects of his encounter with Corporal Anderson in the hospital. He is now able to substantiate the incident through the photographic evidence forwarded by Mr Mellema’s widow. The Tribunal accepts that s119 of the Act has a role to play in a case such as this, in matters such as details of the exact nature of the injuries. However, at important points, other material supports the applicant’s evidence about the injuries. It is clear from the Writeway Research report (Exhibit R2), the official records attached to the report, and Mr Anderson’s oral evidence, that his injuries were severe.
44. The Tribunal accepts Ms Bornstein’s submission that the SoP sets out a range of examples of what might be sufficient as incidents capable of being described as severe psychosocial stressors. The range of incidents is wide, rather than limiting. This implies that a decision-maker should be flexible in considering occurrences raised by an applicant. In this case the applicant relies on his feeling and regard for Corporal Anderson. His evidence was that Corporal Anderson had a great impact on him. He described him as a friend. However, the evidence pointed more to him being a role model. The Tribunal considered that the definition of psychosocial stressor did not rule out consideration of this kind of relationship simply because there is no explicit reference to it in the examples.
45. The factor in the SoP also requires that clinical onset occur within two years of the experience of the severe psychosocial stressor. The applicant did not seek medical assistance until the late 1990’s. He has had a successful working life. However, Dr Cole was able to say that, in his clinical experience, many people work despite a depressive condition, and many people do not seek treatment. The Tribunal notes Dr Cole's view that the applicant had a reactive depression prior to his return from Vietnam. Dr Walton took the same history from the applicant, of experiencing ongoing psychological problems from that time. He considered that the applicant did suffer substantial distress from observing Corporal Anderson's injuries. Dr Walton points out that it was arguable that a depressive disorder did not exist until the triggering event of the applicant hearing about the military activities in East Timor, but does not rule out earlier clinical onset. The Tribunal accepts the submission by Ms Bornstein that when the medical evidence, the applicant’s evidence, and the evidence of Ms Parker are taken together, clinical onset of the condition dates from the applicant’s Vietnam service.
46. On the whole of the material, the Tribunal considers the evidence points to the clinical onset of psychiatric problems, occurring within two years of service. The hypothesis raised in this case connects the identifiable occurrence of observing the injuries to Corporal Anderson with the medical evidence of symptoms of distress consistent with a reactive depression within the relevant time. This fits the template in the SoP for depressive disorder, and the hypothesis is therefore reasonable.
47. In regard to the fourth step from Deledio, pursuant to s120(1), having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s depressive condition is war-caused. The applicant was consistent in the evidence he gave to the VRB and to this Tribunal. His case rests essentially on the impact of the observing the injuries to someone he held in high regard and the evidence he gave of the behavioural effects on him thereafter. The medical evidence was that his depressive condition is a relatively mild one, but on the evidence of Drs Cole, Walton and Gelb it can be linked to the observance of the severe injuries, Dr Cole and Dr Gelb being satisfied that the clinical onset was within the required time of two years. There is no question about the occurrence of the event, and the applicant’s evidence in regard to it is to be preferred, taking into account Mr Anderson’s acknowledgment in his oral evidence and to Mr Tilbrook (Exhibit R6) that he had little recall of the time in hospital due to his sedation. It is uncontradicted evidence, and the minor inconsistencies pointed to by the respondent do not provide a basis on which to find that facts supporting the hypothesis are disproved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564. Therefore, the Tribunal is not satisfied beyond reasonable doubt that the incapacity did not arise from a war‑caused injury, thus satisfying the fourth step in Deledio, and the claim in regard to depressive condition succeeds. The date of effect of the decision is 2 July 2000, being three months before date of the claim.
DECISION
48. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder is war-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 2 July 2000, and remits the matter to the respondent for assessment of the rate of pension.
I certify that the forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision of:
M.J. Carstairs, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 18 March and 2 June 2003
Date of decision: 26 June 2003
Counsel for applicant: Ms J. Bornstein
Solicitor for applicant: Williams Winter & HiggsCounsel for respondent: Mr G. Purcell
Solicitor for respondent: Department of Veterans' Affairs
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