Ivo Sist and Repatriation Commission
[2013] AATA 201
[2013] AATA 201
Division VETERANS' APPEALS DIVISION File Number(s)
2011/5635
Re
Ivo Sist
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 8 April 2013 Place Melbourne Decision The decision of the Veterans’ Review Board made on 7 October 2011 in so far as it found that anxiety state was not war‑caused is set aside. In substitution it is decided that anxiety state is war-caused. The remainder of the decision with respect to the condition of hypertension is affirmed. The application is remitted to the respondent for assessment of pension.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – Applicant engaged in service in Vietnam for 6 months in 1967 – a Vietnamese child was struck and killed by a truck in which the applicant was a passenger at a refuse tip – local persons in the vicinity of the truck became agitated and aggressively held lengths of timber whilst waving their arms – applicant experienced a life-threatening event and was threatened with a weapon – applicant experienced category 1A stressors – anxiety state is war-caused – reviewable decision in part set aside.
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Border v Repatriation Commission No.2 (2010) 191 FCR 163
Repatriation Commission v Budworth (2001) 116 FCR 200
REASONS FOR DECISION
Mr John Handley, Senior Member
The applicant is presently 68 years of age and was engaged in operational service in South Vietnam between 5 March 1967 and 22 August 1967. As a consequence of that service, he claimed acceptance of the conditions of alcohol dependence, hypertension and post traumatic stress disorder (PTSD). He is presently in full-time employment, as a commercial manager with a construction company.
The respondent declined to accept those conditions as war-caused. Prior to the hearing of an appeal against those decisions by the Veterans’ Review Board (VRB), the applicant withdrew his application for acceptance of alcohol dependence.
On 7 October 2011 the VRB decided to vary the diagnosis of PTSD and in substitution decided the applicant suffered anxiety disorder. It then decided that condition and hypertension were not war-caused.
The applicant applied to review that decision and at the commencement of the hearing on 15 October 2012, Ms McMahon, counsel for the applicant, advised that the applicant withdrew his claim for acceptance of hypertension. Accordingly, the application proceeded only with respect to PTSD. Anxiety disorder was submitted as an alternate diagnosis.
The applicant principally relied on two events in service which he contended were responsible for his PTSD. Those events will be discussed later but for present purposes they may be described as the police raid and death of a Vietnamese child.
A report from Writeway Research Service Pty Ltd referred to the existence of a report held by the Department of Defence with respect to the death of a Vietnamese child. Mr Barsley, the author of the Writeway report, was unable to obtain the report prior to the commencement of the hearing. It became apparent during the applicant’s evidence that the review could not proceed satisfactorily without the contents of the report being known and both parties having the opportunity to consider it. Accordingly, the hearing was adjourned and the Registrar was directed to issue a summons to have the Department of Defence produce the report.
Correspondence received from the Deputy Director of the Directorate of Litigation at the Department of Defence recorded that enquiries were made at a number of locations for the report. It was not found.
During a directions hearing on 16 December 2012, the representatives of the parties agreed that the hearing should resume, which it did on 6 March 2013. The applicant then completed his evidence. Evidence was also heard from Dr Velakoulis, a psychiatrist who examined him on a medico-legal basis at the request of the respondent. On 7 March 2013 Dr Seabridge and Dr Strauss, both consultant psychiatrists, also gave evidence.
THE APPLICANT
In a statement lodged prior to the commencement of the hearing, which he adopted in evidence (Exhibit A1), the applicant recorded a number of events during service in Vietnam, which he described as stressors, namely:
(a)being alerted to the presence of a snake (of which the applicant has a phobia);
(b)riding shotgun on trucks delivering materials outside the base;
(c)observing injured servicemen when he was in hospital being treated for tonsillitis;
(d)being placed on guard duty when the base was on high alert in June 1967;
(e)learning of a wound self-inflicted by another soldier;
(f)hiding from local police during a raid (the police raid); and
(g)being present at a refuse tip when it was believed a civilian was killed (death of a Vietnamese child).
Although the applicant described all of the above episodes as stressors in his statement, he was only examined, and in some detail, about the last 2 events during the hearing. In cross-examination the applicant said that all of the above events did cause him a degree of fear or apprehension but the last 2 incidents above had a far greater impact. He said on the occasions when he was riding shotgun, he felt vulnerable to the risk of enemy contact and regarded those experiences as being quite daunting. He thought the first occasion riding shot gun would be just as bad as the last 2 episodes above, but eventually he got used to it (Transcript Day 1, p. 65-66).
The episode involving the police raid occurred on an occasion when the applicant attended a bar in Vung Tau and when he was in the presence of 5 or 6 of his colleagues.
Prior to attending the bar the applicant said that he had been advised by other colleagues that the civilian police in South Vietnam, sometimes referred to as the white mice, were regarded as ruthless and on occasions had acted violently. The applicant said that he was fearful of being confronted by the civilian police and had given that history to Dr Kaplan and Dr Strauss.
On the occasion when he was at the bar, he was aware that he and his colleagues had broken a 10 o'clock curfew. He and others had also heard that there was a raid in place initiated by the civilian police. He and others decided to leave the bar and either hide or attempt to return to camp.
The applicant said that the bar was located about 2½ to 3km from his base and he intended to obtain a scooter, which was the local form of public transport but none were available. The applicant said that he heard noises in the street and thought that the raid was in place. He decided, in the company of another person, to hide in a private house. He said he felt very nervous and was concerned for his safety. He thought that if he was apprehended by the civilian police he could be taken prisoner. Eventually he left the house, was able to obtain transport and returned to base. He recalled that he was then in a state of high anxiety, he continues to have dreams about that event and becomes restless. The memory of that event depresses him (Transcript Day 1, p. 19-25).
The event involving the death of a Vietnamese civilian occurred at a tip site where the applicant was present, depositing waste in the course of his engagement as a member of the 55 Advance Engineers Stores Squadron (55 AESS).
Part of his duties involved receiving materials from Australia which was packaged in timber crates or secured to timber pallets. He and his colleagues were then required to open the crates and distribute the materials. The timber packaging and pallets were later disposed at the tip site, approximately 2 km from the base.
The applicant said that access to the tip was difficult because the surface of it comprised deep shifting sand. He said the truck was required to reverse into the tip and deposit the waste on to other waste which was burning. That manoeuvre was difficult because local persons would approach and climb onto the truck as it was reversing, in order to remove waste materials before being dumped.
The applicant said that he and others were instructed to dump waste onto burning waste from previous deposits to prevent locals using the materials. Photographs were tendered during the hearing which showed housing on the perimeter of the tip site constructed from waste timber that had been salvaged, from the trucks, before it had burnt.
The truck would reverse at a very slow rate. The applicant said if it reversed at speed, it was likely to become bogged. He said if there were 3 or 4 persons from the base in the truck, it was possible to prevent locals climbing onto it. If there were 2 persons only it was quite an ordeal and you were better off to let them take what they wanted and then dispose of what was left over (Transcript Day 1, p. 29).
On the occasion when a Vietnamese child was killed, the applicant said he was a passenger in the truck being driven by another colleague. That is, there were 2 persons only in the truck. He recalled that in excess of 20 persons were scavenging at the tip and approached the truck as it was reversing. He said the locals were attempting to climb onto the truck whilst it was reversing and it was the applicant's belief that they did so in order to remove materials before being dumped. The applicant said that as the truck was reversing:
Something occurred. I wasn't aware of what occurred but the reaction of the people changed considerably from happy-go-lucky to menacing look. Menacing gestures. And the driver actually advised me that something has gone wrong or somebody has – as he was trying to scale the truck, he has actually fell down. He might have run over them (Transcript Day 1, p. 29).
The applicant said the truck was having difficulty obtaining traction on the sandy surface and was kangaroo jumping as it was reversing. It was therefore impossible to know or have felt whether the truck had run over a person – it could have been a rock – it could have been anything (Transcript Day 1, p.30).
The applicant said that the reaction of local persons became intense and the driver, having looked into his rear vision mirror was satisfied that a person had been injured. It was decided between him and the driver that they would not remove themselves from the truck. A rifle that was held by the applicant, which was unloaded, was raised in order to menace persons. The applicant said that it was apparent that something had happened. He said that the local civilians, who ordinarily would be trying to remove timber from the truck, had become aggressive and were waving their arms in anger whilst holding lengths of timber. The applicant said they had surrounded the truck and he believed they were threatening to harm or kill him and the driver. He said he was screaming at the locals to step away from the truck. He also feared for his life and felt helpless and unprotected.
The applicant agreed that he had given similar histories of his reaction to Dr Velakoulis and Dr Kaplan. Additionally, he agreed that he had told Dr Velakoulis that he had an immediate and intense sense of mortal threat and if the crowd had been confronted there would have been a massacre (Transcript Day 1, p. 32; T14, p. 83; Exhibit A11, p. 2).
The applicant agreed that the evidence he had given to the VRB (as found within its Transcript – Exhibit A2, p. 25-29) was correct, namely, it was difficult to obtain traction whilst reversing the truck on sandy soil; locals would climb onto the truck by first jumping onto the wheels; a child must have slipped and was crushed by the truck; the crowd changed its mood and when he and the driver realised what had occurred we belted out of there; he understood that a child had been killed; he did not now know whether it was a child or an adult nor did he know whether the person was male or female; he and the driver did not unload the truck or get out of it; the incident was reported by the driver; he did not make a report; he did not see the injury occur; he was scared and people were waving sticks and timber; and he was told the next day that a young person had been killed.
In cross-examination, the applicant acknowledged that Dr Seabridge had recorded a history taken from him of sitting on top of the truck on the occasion that he attended the tip (Exhibit A10, p. 2). The applicant said that the expressions sitting on and sitting in mean, to him, the same thing. He said he could not have been sitting on the back of the truck because it was filled with waste. He said that at all times he was sitting inside the cabin of the truck (Transcript Day 1, p. 67-68). He thought there were about 20 local persons surrounding the truck. When pressed on this issue, he agreed he could not be confident of exact numbers. He thought the locals were on both sides of the truck. He did not think there were any persons behind the truck. He estimated that they were about 10 feet away from the truck when they were waving their arms and holding pieces of timber (Transcript Day 1, p. 69-70).
In answer to some questions from me at the conclusion of evidence in chief, the applicant said he did not make a report of the incident. He said he was never approached by any person to make a report nor did he know whether the driver in fact did report the incident (Transcript Day 1, p. 60-61).
The applicant said that he understood that identification of the person killed at the tip site being a child, emerged from discussions on the base after he and the driver had returned. He agreed that those discussions suggested that the episode had been reported. He also agreed that in the absence of him having made a report, the only other person who could have done so was the driver (Transcript Day 1, p. 62-63).
The applicant's attention was drawn to a report from Mr Barsley who had located a report of an incident on 4 August 1967 in the following terms (Exhibit A3):
4 Aug 67 SIB/180/67. Accidental death of Vietnamese child at sanitary fill Vung Tau. (Run over by AMF vehicle on charge to 55 AESS).
The applicant agreed that he was a member of 55 AESS and waste was delivered to the tip referred to in the above report. He had no recollection of the date of the incident but agreed that 4 August 1967 was within his period of service.
The report of Mr Barsley was lodged and exchanged 2 working days prior to the first day of hearing. I decided that cross-examination of the applicant over the incident was unfair and I decided that the hearing should be adjourned and an attempt be made to obtain the report of the incident from either the Military Police or Special Investigation Branch investigators. Mr Barsley recorded in his report that his attempts to obtain the report had been unsuccessful. He reported that he had been waiting 6 weeks for it and was advised that a search for it did not rate any priority in Defence (Exhibit A3, p. 11). As recorded earlier (paragraph 36), attempts to obtain the report by summons issued by the Registrar of the Tribunal were equally unsuccessful.
Attached to the report of Mr Barsley is an extract from a monthly report of the AFV Provost unit, dated 4 August 1967, which records that the above incident was:
Investigated, report submitted. No negligence on behalf of AMF driver.
The applicant said that the incident at the tip was the most dangerous event within service. He said the incident at the tip and the police raid at a bar in Vung Tau were equally frightening (Transcript Day 1, p. 33).
He said he did not discuss his reaction to either of those events with his colleagues because that's something that you don't do because you would actually be tormented by them, in so far as you’re scared and, yes, you don't do it (Transcript Day 1, p. 33).On subsequent runs to the tip, although more colleagues were present in the truck, which gave him some comfort, he was cautious and tense.
This issue was explored in cross-examination in the context of the applicant being asked by the VRB what he had done after the tip incident. The applicant said to the VRB:
…Well, it was just one of those things that occurs. They shouldn't be out there. I was considerably more concerned in going outside after that, being more cautious and just treated it as just another event (Exhibit A2, p. 30).
Despite an interpretation that may be placed upon that response, the applicant said (in this review) that he could not be seen by his colleagues to have been scared, so he decided to keep that emotion to himself and try and walk away from it. He said there were many events that occurred in Vietnam, some of which were:
... more hurtful or ...more or less that sticks out. And, if I want to worry about every event and not try and overcome this situation, I wouldn't have been able to move on (Transcript Day 1, p. 64-65).
He said he did not discuss the incident at the tip with any other persons in his unit because he was frightened and if he disclosed that he was scared there were repercussions (Transcript Day 1, p. 73).
Although he did drink alcohol prior to service, subsequent to the incident at the tip, the applicant said that he drank excessively to be relieved of his fear, to help him forget and to be able to sleep. He continued to drink heavily until the 1990s when he reduced his alcohol consumption.
The applicant said that he has had dreams of the incidents in Vietnam, he generally does not discuss his emotions and when he reflects on those events he either cries or he drinks. He has discussed the events with his current general practitioner but did not discuss the events with previous medical practitioners, one of whom was his cousin. The applicant attempts to distract himself from his thoughts and memories by keeping busy, either at home in his garden or at work (Transcript Day 1, p. 33-36).
The applicant said that he now goes to bed at about 9 o'clock each night and sleeps for 2 or 3 hours. He then wakes and sleeps for another 3 or 4 hours. He wakes up, without an alarm clock, at 4 o'clock most mornings. He says that he is then sweaty, he ruminates about his service events and other thoughts and he gets out of bed. He has suffered chest pain for 25 to 30 years which has been described by Dr Seabridge as cardiac anxiety. He grinds his teeth whilst sleeping. He does not have flashbacks. His relationship with his wife and adult children is dependent on his emotional state at the time. He does react to loud or unexpected noises and is easily startled.
The applicant has never sought psychiatric treatment until recently when he was referred by his general practitioner to Dr Seabridge. Zoloft medication was prescribed for a 6‑month period but he ceased taking it after 3 months. The applicant consulted Dr Seabridge on one occasion only. He saw Dr Velakoulis on 2 occasions, on a medico‑legal basis, which had been arranged by the respondent.
The applicant said he has difficulty concentrating which affects his work as a commercial manager with a national building company. He said part of his responsibility is reviewing contracts, over which he spends more time than would ordinarily be expected, to be confident that he has understood the legal consequences of them. He said he thrives on work because it distracts him from service events.
He has a limited social life because he fears the risk of being exposed to alcohol and is uncomfortable meeting persons for the first time. Although his wife enjoys socialising, she avoids going out with him because she is conscious of his alcohol habit. The applicant has only ever attended one reunion of his unit, in 2007 in Canberra, on the occasion of its 40th anniversary.
During the anniversary, the applicant met with 6 or 7 other persons he had served with in Vung Tau in 1967. He did not then discuss the stressful events of his service, especially the incident at the tip. Most of the discussions between colleagues occurred in the presence of wives or partners and the events recalled and discussed were of more happy, joyful times.
The applicant said he does not know the name of the driver of the truck. He said the 55 AESS has a bi-annual newsletter, which he receives, but it never occurred to him to make enquiries through it in an attempt to locate the driver. He said he sent emails to some persons from his unit after the first day of hearing, in October 2012, in an attempt to obtain evidence in support but he did not receive any responses.
In cross-examination, the applicant was also challenged about some inconsistencies in his evidence to the VRB, the contents of the report of Dr Velakoulis and some other documents prepared by his advocate in his application for acceptance of PTSD.
The VRB Transcript records the applicant indicating that the incident at the tip was reported by the driver (Exhibit A2, p. 28). In this review, he said he had assumed that the incident was reported by the driver and he believed that the driver had an obligation to make a report. Additionally, it was his belief that a report was made by someone and as a consequence, travel to the tip was suspended for a period of time.
The report of Dr Velakoulis in part reproduces a written report made by the applicant and given to the doctor at the second consultation (T14, p. 82-85). The applicant said that his description of the episode at the tip, as reproduced, was the first occasion he had ever recorded and discussed that incident, with anyone.
In the applicant’s report, a comment by him (and reproduced by Dr Velakoulis – T14, p.83) local civilians waving their arms in anger was intended to mean that those persons were holding lengths of timber or other debris and waving it around. He said that observing those persons in an agitated state, brandishing lengths of timber, caused the applicant to be apprehensive, in fear and feel threatened.
The applicant said his advocate was in error in recording in his application to the VRB that he had reported to Dr Velakoulis that he had witnesses the death of a young boy (T16, p. 98). He said he did not make such a comment in the statement that he gave to Dr Velakoulis nor is a comment of that type contained within his report (T14).
The applicant said he did not know at the time of the incident whether the person struck by the truck was male or female or a child or an adult. However, when he was questioned about the circumstances at the tip site, he acknowledged that he had told the VRB, in answer to questions put to him, that he did see a child attempting to climb onto the truck from his (the passenger) side. He did not see the injury occur and he did not witness the death of the child. He said he saw a child on the ground as the truck was departing and the child was surrounded by other locals. He believed that the child had been run over by a rear wheel of the truck.
DR VELAKOULIS
Dr Velakoulis is a consultant psychiatrist to whom the applicant was referred on a medico-legal basis by the respondent. He consulted with the applicant on 2 occasions – 19 April 2010 and 28 May 2010. Between both consultations the applicant prepared some written notes (Exhibit A11) which were requested and incorporated by Dr Velakoulis into his report (T 14, p. 82-85).
In the history taken from the applicant, Dr Velakoulis recorded a number of stressful events in service. He also reproduced part of the applicant’s notes concerning the incident at the tip. It was his opinion that the applicant was exposed to an angry massed crowd who were seeking retribution because an infant had been killed. He was satisfied that the applicant's response to that event was of intense fear and anxiety. He diagnosed PTSD of mild severity. He was also satisfied upon the history given to him by the applicant (and following an interview with the applicant's wife) that his symptoms had been present from 1967 and those symptoms had fluctuated but had not deteriorated or improved. He was also satisfied that the applicant suffered depression, recorded on the second page of his report as mild and transient depressive symptoms.
Dr Velakoulis said that in his experience, it was not uncommon for patients to deny or refuse to discuss problems for many years. He was satisfied the applicant was an anxious person and was also satisfied that subjectively, the episode at the tip was a life threatening event. The major distress suffered by the applicant at the tip was his sense of personal threat by persons who were screaming and yelling, brandishing timber and other materials. His response to that behaviour was an immediate and intense sense of mortal threat (T14, p.83).He also thought that the applicant’s level of concern would probably have been raised when he was advised that a person had been killed or injured.
In cross-examination, Dr Velakoulis said he asked to see the applicant on a second occasion because he did not complete taking a history during the first consultation. He said it was also his practice, when a second consultation is arranged, to ask a veteran to make notes and return with them. When completing his report he had regard to the history that he obtained from the applicant during both consultations (the second also involving the applicant's wife) and the applicant’s written notes.
He said the reaction of the locals to a person being struck was probably predictable and despite the applicant and the truck driver deciding to drive away from the scene, he was satisfied that the event was traumatic. He said he was satisfied that the applicant did react to learning of the injury or death of a child and he reacted also to the threats made by the crowd. However, when pressed on this issue, Dr Velakoulis conceded that he had not clarified the applicant's reaction to the child's death.
In the event s diagnosis of PTSD was not made, Dr Velakoulis was satisfied that the applicant could meet the DSM-IV definition of generalised anxiety disorder (GAD). He said the applicant suffered high levels of anxiety and was prone to undue worry. He was aware that Doctors Strauss, Seabridge and Kaplan had all diagnosed GAD. Like them, he was also satisfied that the clinical onset of GAD was during the applicant’s service in South Vietnam.
DR STRAUSS AND DR SEABRIDGE
Doctors Strauss and Seabridge are consultant psychiatrists. The applicant was referred to Dr Strauss on a medico-legal basis by the respondent. He was referred to Dr Seabridge by his general practitioner for treatment and consulted with him on one occasion only. Dr Strauss provided a report dated 7 June 2012, following a consultation with the applicant on that day (Exhibit R2). The clinical notes of Dr Seabridge were received as Exhibit A10 and contained a letter to the applicant's general practitioner dated 28 June 2011 in response to the referral. He also prepared a report for the applicant’s advocate on 10 July 2011 (T19, p.103-105).
Both doctors gave evidence, which was largely confined to diagnosis. Both were called by counsel for the respondent despite counsel for the applicant indicating neither was required for cross-examination. Both were satisfied that the applicant suffers from an anxiety disorder, that he does not suffer from PTSD and the clinical onset of GAD was during his service in South Vietnam. Both doctors were satisfied that the applicant suffers a high level of anxiety.
THE APPLICANT – RECALLED
The applicant was recalled to give evidence on the third day of hearing on the basis that his summary of events in service that he prepared at the request of Dr Velakoulis was not exchanged until the previous day. Counsel for the respondent submitted that he was entitled to examine the applicant over some of the contents of that statement.
During the examination, the respondent’s representative attempted to attack the credibility of the applicant having regard to inconsistencies within that statement and in other documents. For example, the notes of Dr Velakoulis record 3 of us at the tip (Exhibit A12). Dr Seabridge recorded in his notes there was a driver and 2 others (Exhibit A10). In his evidence before this Tribunal, the applicant said that he and the driver only were in the truck at the tip (Transcript Day 1, p. 29).
The applicant acknowledged the histories recorded by Dr Velakoulis and Dr Seabridge but said it was his belief that only he and the driver were in the truck. He said if 3 persons had been present, he would have been seated in the back of the truck. He recalled being seated in the front seat which reassured him that only 2 persons were present in the truck.
The applicant was also examined about his estimation of the number of locals present at the tip and surrounding the truck. For example, his statement records approximately 20 people were gathered around the truck (Exhibit A1). In the notes he provided to Dr Velakoulis, the applicant estimated the number of persons present at the tip was between 10 to 50 people (Exhibit A11, p. 2). The applicant acknowledged that his recollection of the event at the tip was hazy and his recollection was the best (he could) do in the circumstances.
It was put to the applicant that the inconsistencies in his evidence suggested either the event at the tip as recorded in the report of Mr Barsley did occur and the applicant was present or, there was another similar incident at the tip, involving an injury to a person and it was that incident to which Mr Barsley referred.
Counsel for the applicant objected to this proposition on the basis that it was open to Counsel for the respondent to have put it to the applicant during cross-examination, which he did not. Additionally, there was objection on the basis that the possibility of another incident at the tip had never been raised in any of the respondent’s prehearing materials.
CONCLUSION AND REASONS FOR DECISION
Most of the issues in this application were in dispute, save for diagnosis. Although Dr Velakoulis primarily diagnosed PTSD, he conceded the applicant could also be diagnosed with anxiety disorder as found by all the other doctors.
I am not satisfied that the applicant suffers from PTSD. That is a discrete condition and is defined within DSM-IV. His description of his symptoms as described in paragraph 38 earlier does not satisfy the clinical criteria of PTSD.
I am satisfied and find on the balance of probabilities that the applicant does suffer anxiety disorder. His collection of relevant symptoms constitutes that diagnosis (Repatriation Commission v Budworth (2001 116 FCR 200 at [19]). I make that finding on the basis of the evidence of the doctors, the contents of their reports and the clinical criteria within the definition of it, also within DSM-IV. (The condition of anxiety disorder is the subject of a Statement of Principles (SoP), namely Instrument N° 101 of 2007 entitled Anxiety Disorder. Previous SoPs were entitled Generalized Anxiety Disorder – GAD).
Having made the finding concerning diagnosis, the four-step process found within Repatriation Commission v Deledio (1998) 49 FCR 82 at 97-98 must be followed.
The applicant principally relied on 2 events in service which he said were responsible for his anxiety disorder, namely the police raid and the circumstances surrounding the death of a Vietnamese child at a tip site at Vung Tau.
I am satisfied from the evidence heard and upon the documents lodged and read that there is material pointing to a hypothesis connecting the applicant’s anxiety disorder with service. The second step is satisfied by the existence of a SoP in force within the assessment period, being Instrument N° 101 of 2007 concerning Anxiety Disorder.
Having proceeded to the third step in the Deledio process, I must now decide whether the raised hypothesis is reasonable. The hypothesis will be reasonable if it is consistent with the template found within the relevant SoP and contains one or more of the factors that the Repatriation Medical Authority has determined exist as a minimum and be related to service.
The applicant relies on factor 6(a)(ii)of the SoP, namely:
experiencing a category 1A stressor within the 5 years before the clinical onset of anxiety disorder.
Paragraph 9 of the SoP provides that a category 1A stressor means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
I am satisfied the hypothesis raised by the applicant is reasonable. It is consistent with the template of the SoP and contains a factor, relevantly defined.
It is now, at the fourth step in the Deledio process that findings of fact will be made.
The applicant meets the profile of many other veterans who have lodged applications for review in this Tribunal and where I have presided at their hearings.
In 1967 when the applicant served in South Vietnam he was a young man who was conscripted and exposed to war. He was frightened. A number of events in service were confronting. Forty six years later, he was examined, for the first time, at the VRB and later during this review, about the circumstances of his service. Inferences adverse to him should not be drawn because, not surprisingly, his recollection in detail of those events was poor. He had not discussed the tip incident with any other persons. It is not unusual to hear evidence from veteran’s that they have not discussed service events with their wives. That was the applicant’s evidence, but he also did not discuss his service or his consequent anxiety with his cousin, who was his treating doctor, for 20 years. It may be reasonably expected that the relationship of patient/doctor would necessarily involve privacy. That was a significant issue for him because on a number of occasions when giving evidence, the applicant said that discussion of the circumstances of his service, provoked tears or resorting to alcohol. His solution to avoid those memories was undertaking activity which distracted him.
The most significant events in service were the episode in the bar during a police raid and the episode where he attended a refuse tip.
Whilst he regarded both episodes as frightening, he said the most dangerous event was the occasion of attending the refuse tip. I agree with that analysis. The applicant did not confront the civilian police and was able to obtain refuge for a relatively short time until he was able to obtain transport back to the base. Additionally, the event as described would not in my view satisfy factor 6 of the SoP because he could not be regarded as having experienced a category 1A stressor, as defined.
I am satisfied that the applicant did experience a category 1A stressor namely, being threatened with a weapon, at the refuse tip which qualifies as a severe traumatic event. I am satisfied and find as a fact that the occasion of the applicant attending the refuse tip was the same event that was recorded in the report of Mr Barsley, which did occur on 4 August 1967 and which was reported and investigated. There is no material in this review which points to any other event which could have been the subject of that report and investigation.
I am satisfied that the applicant attended the refuse tip as a passenger in a truck being driven by another person, who was a colleague of the applicant. His identity is not known. Only the driver and the applicant were the occupants.
The applicant described the truck entering the tip by reversing across a loose sandy surface. Traction was difficult and the truck sometimes jumped. The vision available to the driver and the applicant, whilst reversing, was restricted to rear vision mirrors. That is, the opportunity to have adequate vision of local persons approaching and surrounding the truck, intending to remove refuse, was poor and limited.
The applicant was aware from previous occasions when attending the refuse tip that locals would frequently climb onto the truck to remove timber and other refuse before it was deposited at a location where other rubbish from previous deposits was burning. Service persons were instructed to comply with that procedure to deter locals from removing rubbish. Photographs received as exhibits depicted houses on the perimeter of the tip having been constructed from waste timber. Whilst that would indicate that procedure was not always satisfied, it does point to enterprise on the part of locals to use waste timber as building materials. It also points to the vigour of and considerable determination by the locals in attempting to remove the waste timber from the trucks before it was burnt.
The applicant said, and I find as a fact, that there were many local persons surrounding the truck as it was reversing. There were varying estimates of the numbers of those persons. The minimum number was 10 and the maximum number was 50. In his statement the applicant estimated 20 persons. Irrespective of the exact number, which the applicant cannot reasonably be expected to recall, he was consistent in his description of many persons surrounding the truck, principally on both sides of it, attempting to climb onto it whilst it was reversing. It was also believed, consistent with previous experiences, that persons used the wheels of the truck, whilst it was in motion, to climb onto the back of it to remove refuse.
The applicant was alerted by the driver to an incident having occurred because he observed that the reaction of the surrounding locals had changed considerably from happy-go-lucky to menacing, they were displaying menacing gestures and he was advised by the driver that he might have run over them.
There was uncertainty whether the person who was struck by the truck was either injured or killed and whether the person was male or female or a child or an adult. The report held by the military and recorded by Mr Barsley refers to the accidental death of a Vietnamese child. I have found earlier that the incident at the tip described by the applicant was the same incident which was the subject of that report. Despite the limited information available concerning the report of the incident and its investigation, I am satisfied and find as a fact that a person was killed, that the death was accidental and the person killed was a Vietnamese child. I am also satisfied, having regard to the finding of no negligence on behalf of AMF driver that the child was killed by the truck whilst it was reversing.
The credit of the applicant is not diminished by his answers to the VRB concerning the identity of the person struck by the truck. He did not record in the notes he gave to Dr Velakoulis, nor did Dr Velakoulis record in his history that the person killed was a young boy. The applicant recorded that a civilian (young person) was struck (Exhibit A11, p. 2). Dr Velakoulis recorded one local jumped onto truck, fell under wheels whilst reversing (Exhibit A12, p. 2). The application to the VRB does refer to a young boy (T16, p. 98). Whilst the application was signed by the applicant, it was completed by his advocate.
The incident at the tip was a shocking and tragic event which was, in my view, responsible for the sudden change in mood and obvious agitation by the local persons which might reasonably be thought as causing those persons to blame the occupants of the truck, one of whom was the applicant. Their anger was displayed, when they were about 10 feet from the truck, by waving their arms whilst holding pieces of timber which might reasonably be interpreted, and I so find, as threatening gestures.
I am satisfied that the applicant perceived that he was being threatened with lengths of timber which would be weapons. The occasion of being threatened in that manner would explain why the applicant reacted by lifting his rifle and making it visible to the locals. They did not know that it was not loaded. It would also explain why the truck driver decided that they should remove themselves from the vicinity without delay.
I am also satisfied that being threatened with weapons, being lengths of timber held by a number of persons, who were in an agitated state and when they were apparently reacting to the death of the child, did constitute him experiencing a life-threatening event. That perception, viewed objectively, in my view, was reasonably held. It is a perception consistent with the opinion recorded by Dr Velakoulis in his report that the veteran described to him an immediate and intense sense of mortal threat (T14, p. 83). It is consistent also with the notes made by Dr Velakoulis and appended to the typed notes of the applicant that to have confronted the crowd would have been a massacre (Exhibit A11).The recording of those emotions between the applicant and a consultant psychiatrist, well in advance of this review, satisfies me that they were genuinely held and did convey the threat of death (Border v Repatriation Commission(No.2) (2010) 191 FCR 163 at [67]).
I am satisfied that the applicant is a witness of truth who did not embellish or exaggerate these events or his response to them. His occupation of a position within the cabin of a 6 or 8 tonne truck, in the midst of a number of agitated persons brandishing weapons does not lessen his perception of experiencing a life threatening event and being threatened with a weapon.
The chain of events recorded immediately above satisfies me that the applicant did experience a category 1A stressor as defined at paragraph 9(a) and (c) of the SoP.
The reaction of the applicant to that event after he returned to the base, as recorded at paragraphs 34 and 35 earlier, should not in my view be interpreted as indifference or not having suffered a reaction. The applicant said on a number of occasions in evidence that he would have been treated adversely by his colleagues if he had discussed or displayed his upset at the event and its consequence. He said in evidence that after the tip incident, he was concerned when leaving the base and more cautious. He drank heavily to be relieved of his thoughts of the incident and to help him sleep. That indicates to me that he was affected by the incident.
The reaction of the applicant to that event satisfies me that it was responsible for his anxiety disorder. It follows that I am satisfied that the clinical onset of the anxiety disorder did occur within the 5 years of the episode at the tip.
In reaching the conclusion of being satisfied that the applicant does as a fact meet the requisite parts of the SoP, I am satisfied that the applicant did experience a category 1A stressor because he was directly involved in the episode at the refuse tip at (Border at [45]) and his response was subjectively consistent with him having experienced a life threatening event and being threatened with a weapon. The definition at paragraph 9 of the SoP deems each aspect of the tip incident as being a severe traumatic event.
I am also reassured that the diagnosis of anxiety disorder was properly made having regard to the consistency of the applicant's presentation to medical practitioners and equally their consistency in making the diagnosis of anxiety disorder as a consequence of experiencing the event at the refuse tip.
DECISION
Pursuant to s 120(1) of the Veteran's Entitlements Act 1996, I am not satisfied beyond reasonable doubt that the applicant’s anxiety condition is not war-caused. The claim must therefore succeed. Accordingly, that part of the decision of the VRB is set aside and in substitution, I decide that the anxiety condition is war-caused. The remaining part of the decision concerning hypertension is affirmed. The application is remitted to the respondent for assessment of pension.
I certify that the preceding 96 (ninety‑six) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member............................[sgd].............................
Associate
Dated 8 April 2013
Date(s) of hearing 15 October 2012 and 6-7 March 2013 Counsel for the Applicant Ms A. McMahon Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G. Purcell Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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