Jensen and Repatriation Commission
[2005] AATA 392
•4 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 392
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/208
VETERANS' APPEALS DIVISION ) Re ROBERT JENSEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date4 May 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution it is decided that the conditions of PTSD and alcohol abuse or alcohol dependence are war-caused. The application is otherwise remitted to the respondent for assessment of pension in accordance with these reasons. (Sgd) John Handley
Senior Member
VETERANS’ ENTITLEMENTS – Vietnam service – whether events in service as alleged occurred – perception by applicant of threat – subjective reaction – whether any clinical worsening of alcohol abuse by service – whether applicant suffered generalised anxiety disorder or PTSD – decision set aside
Veterans’ Entitlements Act 1986 (C’th) s24
Budworth v Repatriation Commission (2001) 63 ALD 422
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160
Benjamin v Repatriation Commission [2001] FCA 1879
Budworth v Repatriation Commission [2001] FCA 317
Gerzina v Repatriation Commission [2004] FCAFC 96
State of New South Wales v Seedsman [2000] NSWCA 119
Repatriation Commission v Deledio (1998) 83 FCR 82
Delahunty v Repatriation Commission [2004] FCA 309
REASONS FOR DECISION
4 May 2005 Mr John Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 3 February 2003. The VRB then decided to affirm a decision made by the respondent on 23 February 2002 to refuse a claim for acceptance of the conditions of anxiety disorder and alcohol dependence or abuse.
2. The applicant presently receives pension at 30 per cent of the general rate for the accepted condition of bilateral sensorineural hearing loss. The conditions post-traumatic stress disorder (“PTSD”), tinea, cirrhosis, pesplanus, anxiety disorder and alcohol dependence have been rejected.
3. Mr Jensen is presently 53 years of age having been born on 14 April 1952. He was a member of the Australian Army between 13 August 1969 and 6 November 1972. He served in Vietnam between 26 August 1971 and 7 March 1972.
4. By this review Mr Jensen seeks acceptance of the conditions which were rejected by the respondent, together with pension at the special rate.
5. The hearing of the application commenced in Warrnambool on 8 September 2004 and was adjourned part heard. It resumed in Melbourne on 12 November and 15 December 2004. It was again adjourned and further investigations were undertaken by the applicant’s solicitor. Written submissions were subsequently lodged. A number of documents were received into evidence and will be referred to in these reasons. Mr De Marchi appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent.
robert jensen
6. Mr Jensen has resided in Warrnambool for the last two years. Previously he was a resident of Queensland. He was last employed by the RSL on Bribie Island as a casual general hand. He was employed between 1998 and 2002 but was dismissed from the employment, predominantly because of the effects upon him of alcohol consumption but also by reason of aggression and altercations with other co-workers and unreliability. In a statement prepared by the employer and received into evidence as Exhibit E it is in part recorded:
. . . will not listen to what is said to him therefore all hell breaks loose when he is told he has done the job wrong.
Shortly after leaving that employment Mr Jensen was admitted to Greenslopes Hospital in Brisbane by reason of a “mental breakdown” and remained an inpatient for 12 weeks. He then received Centrelink payments but upon discharge from hospital he applied to the respondent for service pension which was granted. When employed with the RSL on Bribie Island, Mr Jensen earned an average of $350.00 per week. His only income presently is service pension and general rate pension.
7. Mr Jensen said that he left Queensland and moved to Victoria for “a new start in life”. His marriage had failed and he had a poor work history, largely associated with his alcohol dependence. Prior to employment with the RSL Mr Jensen was employed as a courier driver between 1995 and 1998 but his employment was terminated by reason of him arguing with his employer which he associated with alcohol consumption. Between 1994 and 1995 he was unemployed. Between 1990 and 1994 he was employed by Tip Top Bakeries as a delivery driver and said that his employment was terminated because of his alcohol related behaviour and by reason of his interpersonal behaviour towards his wife and his eldest son. Between 1972 and 1989 he was employed by BHP at Port Kembla as a crane driver and forklift driver and again that employment was ended by reason of conflict with management and by reason of alcohol consumption.
8. After commencing residence in Warrnambool Mr Jensen has been under the care of Dr Ridley, a psychiatrist, who prescribes Valium and Avanzer medication for his anxiety. Naltrexone is prescribed to eliminate the dependence upon alcohol and sleeping medication is also prescribed.
9. Mr Jensen said that he was posted to Vietnam as reinforcement for the 4RAR Company which had suffered a number of previous casualties. He described difficulty being a part of that Company because of prior casualties and he felt as if he was an outsider. Two incidents were referred to as associating his anxiety and alcohol dependence with service.
10. The first incident concerned an episode when he was on patrol. Mr Jensen recalled that he saw “something out of the corner of my eye” and swung around towards the object that was observed and he pointed his rifle. He then observed a Vietnamese civilian. He withdrew his rifle and the civilian ran away. Mr Jensen said that the incident was not reported although he may have mentioned it to other members of his Company. He was adamant that the incident did occur. Thereafter Mr Jensen said that he has felt “very nervous”. He said at the time of that incident he “didn’t know what to expect”. The incident occurred either at Nui Dat or Vung Tau and was during the time that Australian troops were completing service in Vietnam. Mr Jensen said he has referred to this incident in his treatment with doctors from time to time.
11. The other incident upon which he relies concerned him being part of a party which was called to provide a perimeter shield to a helicopter which had been shot down at Nui Dat. He and other persons were taken to the site of that accident in a United States helicopter. He said at the time he did not know whether enemy forces were present or in the vicinity. He recalled that he remained part of the perimeter shield whilst the helicopter was evacuated. He said that he was not aware whether members of the crew of that helicopter had been killed or injured. Thereafter he said he became a nervous person and he has subsequently experienced dreams of the helicopter which had been forced down. For the remainder of his service in Vietnam, Mr Jensen said that there were no injuries to other members of his Company nor were they engaged in any conflict. To his knowledge enemy forces were not killed or wounded during his tour of Vietnam nor was he exposed to any such episodes.
12. Prior to service Mr Jensen said that he drank alcohol casually. He said he volunteered for enlistment in 1969 and was transferred to Vietnam in 1971. Whilst in Vietnam he said that alcohol was readily available and whenever the opportunity presented to drink alcohol he took advantage of it. He described himself as consuming alcohol heavily in Vietnam and upon his return to Australia he said that he “drank whenever I could”. He said that he did not ever attempt to cease or abstain from alcohol and associated the ending of his marriage and work history with his behaviour consequent upon alcohol consumption.
13. Mr Jensen acknowledged that he was discharged “early” from the Army. He said that he applied for a number of postings and to participate in a number of training exercises but on each occasion he was refused. Being of the belief that he had no future in the Army he then elected to leave to take up civilian employment. Mr Jensen acknowledged that his history of service was “not good”.
14. In cross-examination Mr Jensen largely agreed with the contents of a report of Dr Chalk, a consultant psychiatrist who assessed him at the request of the respondent in July 1997 (T6 p41). In that report Mr Jensen is referred to as one of a family of 13 siblings who was adopted by another family at the age of four or five years. He thought that he was “a Ward” and recalled that he was upset with welfare personnel from a government agency visiting him whilst he was at primary and secondary school. Mr Jensen did not dispute that Dr Chalk recorded a history of him having four driving under the influence charges, being convicted of assault whilst under the influence of alcohol and being questioned in relation to arson upon a friend’s motor vehicle. He also agreed that he had been imprisoned whilst a member of the Army for non payment of fines.
15. Mr Jensen was also referred to a report of Dr Hargreaves a consultant psychiatrist from Greenslopes Hospital who provided a report in August 2002 at the request of the respondent (T27 p146). He agreed with the history recorded by Dr Hargreaves that employment with various employers was frequently ended because of disputes with management, including an occasion prior to enlistment. Whilst the applicant abused alcohol heavily subsequent to discharge from service, he said that he consumed alcohol on a casual basis only prior to enlistment. Whilst he agreed that he left the employment of BHP after 16 years at Port Kembla for reasons associated with his deteriorating marriage and consumption of alcohol, his decision was voluntary because an early retirement opportunity presented and financially it was in his interests to leave the employment.
16. Mr Douglass continued examining the applicant’s pre-enlistment history and referred him to a report of Dr Taylor (T11 p81) who provided a report to the Vietnam Veterans’ Association on 29 June 1998. Dr Taylor recorded that the applicant in 1969 was “too young to go to Vietnam” and was then transferred to Ingleburn. Later when he achieved 19 years he was reassigned to 4RAR and was subsequently deployed to Vietnam. Mr Jensen was then asked to comment upon a report completed by Lt. Col. Johnson found at pages 22 and 23 of the Personnel Records which referred to him being posted to 4RAR on 26 March 1970 but “his performance was far below average and proved difficult to handle and required a great deal of supervision in all aspects of his work”. The report continued that Mr Jensen was “warned for discharge on 15 January 1971”, and was suspended from duty in March 1971 to undergo detention concerning the illegal use and dangerous driving of a motor vehicle. He was “posted out of 4 RAR on 3 May 1971 as being unsuitable for overseas service with the Bn” but was “posted back to 4 RAR” in September 1971 and subsequently completed a tour of South Vietnam. Mr Jensen said that he did not know that he was regarded as being “unsuitable” and thought that he had been regarded by his superiors as being too young for overseas service. When asked to comment upon him being found to have performance “far below average” Mr Jensen again said that he was not aware of that finding but said that he did recall that he had been “warned” by his superiors.
17. Mr Jensen was then asked to review his earlier evidence where he had said that he resigned from the Army in frustration. He was then taken to page 23 of the Personnel File which records that it was recommended that he be discharged from service on the grounds of “unsuitability as a soldier”. When it was put to Mr Jensen that he was “sacked”, he agreed.
18. Mr Jensen was then taken to some documents found at pages 168 to 170 of the T-documents, being an extract from a publication “Last Tour of Duty”. It refers to 4 RAR being engaged in a “wind down”. Mr Jensen said that he was not aware that had been the purpose of his tour. He did agree however with a comment found within the publication that the tour was “boring” and that there had been little to do.
19. Mr Jensen was then taken to the transcript of his evidence before the VRB in Melbourne on 3 February 2003. He reaffirmed that he felt as if he had been treated poorly because he, and other personnel, who were posted to Vietnam to reinforce 4 RAR, had not been “accepted”. He said that he agreed with the submissions of his VRB advocate that persons who are posted as reinforcements to Units tend to be treated poorly. Mr Jensen said that he was treated poorly because he had been found guilty of offences in the Army and had been imprisoned.
20. Mr Jensen was then taken to other references in the transcript and to his personnel file and agreed that his service in Vietnam was generally not stressful. In fact there were occasions where he found that he was bored and he assumed that this explained his consumption of alcohol. He agreed that there were occasions when he was found to be AWOL and had been disciplined. He also agreed that he had been disciplined for swearing at a Commanding Officer but could not recall a reference of being found to have left his post (Personnel File page 33).
21. The applicant was then taken to one of his applications for pension (T‑documents p60-61) where Mr Jensen recorded that he began to consume alcohol on a regular basis when he “first joined the Army at Kapoka in 1969”. His explanation for doing so was “peer pressure – it was the in thing. To ease boredom when off duty because you weren’t allowed out”. He recorded that he drank daily and on the occasions that he drank, his consumption was “up to 6 beers – until I was pie-eyed”. Mr Jensen agreed with those comments and also agreed with comments at page 61 that his consumption increased to 10 beers per day plus half a bottle of spirits whilst at Townsville between 1970 and 1971 and 12 cans of beer and spirits in Vietnam between 1971 and 1972 and consumption at that level when he returned to Townsville in 1972.
22. Mr Jensen acknowledged that Dr Ng had recorded in his treating notes that he had started drinking alcohol whilst he was a teenager however this was denied. Mr Jensen acknowledged that he “experimented” with alcohol only.
23. From 2002 Mr Jensen has not consumed alcohol. He takes Naltrexone on a regular basis to relieve him from the craving for alcohol. The medication was first prescribed whilst he was an inpatient at Greenslopes Hospital in Brisbane and it is likely that he will continue to consume that medication.
24. With respect to the incidents in service upon which he relied, Mr Jensen said that he could not recall if the incident where he pointed a rifle at a civilian occurred either at Nui Dat or at Vung Tua. He said that he did not know if he was then engaged in a “clearing patrol” which would have required “clearing” civilians away from the Australian Base. Mr Jensen said that his first reaction upon observing the person to whom he pointed his gun was that it was an enemy soldier but he realised quickly that it was a civilian person.
25. With respect to the episode where he guarded a helicopter, Mr Jensen said that he could not estimate the distance he was from it but he recalled that he was able to observe it. He said that he was sure that a helicopter was being guarded because it had retained its shape. He said it was not a pile of twisted metal. When it was put to him that there was no documented record of a helicopter being downed in the circumstances as he described, Mr Jensen said that he had provided his solicitor with an extract from a magazine which reported the incident.
26. Mr Jensen was then asked whether there were any other events or episodes in service upon which he associated his anxiety and alcohol dependence. He said he could recall nothing else arising out of his service and said that he was a “well trained rifleman”. When asked whether he could offer any explanation as to why Dr Chalk and Dr Wright had not referred to these incidents in their reports Mr Jensen suggested that he had not been asked about them and he therefore did not volunteer that information.
graham ridley
27. Dr Ridley is a psychiatrist in practice in Warrnambool who has been treating Mr Jensen since November 2002. He prepared a report of 8 October 2003 (Exhibit B) which concluded as follows:
Both from the history as described to me by Robert Jensen and on repeated cross sectional mental state examination he meets diagnostic criteria for Generalised Anxiety Disorder and alcohol abuse dependence. The presence of persistent episodes where he describes a re-experiencing of certain incidents in Vietnam, including nightmares and flashbacks is also strongly suggestive of a diagnosis of a sub-clinical Post Traumatic Stress Disorder.
The point of conjecture regarding the diagnosis of Post Traumatic Stress Disorder raised very clearly in the report by Dr. Jonathan Hargreaves is whether or not the stressor he has described constitutes a genuine material threat or whether the threat was merely a perceived one. The diagnostic criteria for Post Traumatic Stress Disorder listed in the diagnostic and statistical manual (DSM) version Iv – TR refer to the experiencing of “actual or threatened death or serious injury”. Of importance in making a diagnosis of Post Traumatic Stress Disorder is not the actual event itself but its perception by the history of experiencing a sense of threat on at least one occasion during his Vietnam service and I would conclude from this that this criterion for Post Traumatic Stress Disorder is met.
A further point of conjecture appears to concern the timing of the onset of Robert Jensen’s symptoms and whether his childhood and subsequent history of some degree of behavioural difficulties may have led to him developing his alcohol and anxiety related conditions whether or not service occurred. This seems to me to be something of a moot point at it is very clear that his service in the army did actually occur and it was during this time that Robert Jensen reports beginning to experience disabling anxiety symptoms and beginning to drink alcohol. The criteria or a relationship between Generalised Anxiety Disorder and Alcohol Abuse/Dependence and service are that these two conditions should have developed within two years of the “severe psychosocial stressor” and in my opinion Robert Jensen’s history would bear this out. He therefore meets criteria not only for the clinical diagnoses of Generalised Disorder and Alcohol Abuse/Dependence but also the criteria for both of these diagnoses being service related.
28. Dr Ridley also prepared a letter of 9 February 2004 (Exhibit C) where he expressed an opinion that the applicant’s generalised anxiety disorder and alcohol abuse/dependence prevented him from engaging in employment. It was his opinion that the incapacity would be permanent.
29. In evidence Dr Ridley explained that the applicant did not have any capacity for employment because of his anxiety, his withdrawal, depression and difficulty with sleeping. Dr Ridley acknowledged that he has only been treating Mr Jensen since he moved to Warrnambool and since he had ceased drinking. He was however aware that Mr Jensen had a past history of alcohol abuse and difficulty sustaining employment because of the effects of alcohol.
30. Initially Dr Ridley diagnosed the applicant as suffering from a generalised anxiety disorder, a sub-clinical PTSD and alcohol dependence and abuse which he related to the applicant’s service in Vietnam. With the passage of time however he moved away partially from these diagnoses and found that the applicant in fact does suffer from PTSD.
31. Dr Ridley said he was aware that the applicant had consumed alcohol excessively since his service in Vietnam and whilst he was aware that he had consumed alcohol on a regular basis prior to service, there was then a “significant escalation” in his drinking habits in Vietnam, and he associated the increased alcohol consumption with the service. He found Mr Jensen to be “psychologically vulnerable who did not cope with the stress of army life”. It was his opinion that the applicant satisfied the DSM IV definition of “stressful event”.
32. Dr Ridley said that prior to service the applicant had enjoyed a “happy boyhood” although he was aware that he was a Ward and had been “in trouble for theft at the age of 14”. Whilst he conceded that he had a limited history of the applicant’s life prior to service and also conceded that personnel histories completed by the Army were likely to be thoroughly prepared, Dr Ridgley did not move from his opinion as to diagnosis or the association between service and the diagnosed illnesses.
33. In cross-examination Dr Ridley said that the applicant was not presently consuming alcohol because he had been prescribed Naltrexone which reduced the craving for alcohol and the risk of imbibing. He said Naltrexone is usually prescribed to persons who have not responded to other forms of treatment to abstain from alcohol. It was his opinion that if the applicant ceased consuming Naltrexone that he would, more than likely, return to alcohol consumption.
34. Dr Ridley reaffirmed that he had a history of the applicant being a Ward, that he had been investigated for theft and had been imprisoned whilst in the Army. Whilst he was not aware that he had also been given warnings whilst in the Army, it was his opinion that these histories did not affect, nor were they significant, in him forming his diagnosis. He was confident that the applicant did suffer from a generalised anxiety disorder, the clinical onset of which occurred within two years of service. He formed this opinion on the history of symptoms as expressed to him by Mr Jensen which Dr Ridley interpreted as anxiety, social disability, avoidance behaviour, difficulty holding employment, inappropriate coping strategies (consumption of alcohol), sense of isolation, depression and a lack of motivation. Dr Ridley thought that the applicant suffered from all or most of these symptoms since 1973. He said the applicant’s employment history was not significant in forming a diagnosis but was significant in the context of identifying the clinical onset.
35. Dr Ridley said that he was aware of the opinions expressed by Dr Chalk and Dr Wright in 1997 and 1998 and agreed that the opinions that were then expressed would indicate that the applicant did not then suffer from generalised anxiety disorder. However Dr Ridley said that the applicant was then heavily consuming alcohol which he regarded as a form of “self medication”. It was his opinion that persons who abuse alcohol have a psychiatric illness. He based this opinion on his experience in an alcohol program in Geelong where between 70 to 80 per cent of the persons who were affected by alcohol did have a psychiatric illness.
36. The witness was then taken to a letter written by the manager of the Bribie Island RSL found at page 172 of the T-documents. That letter is reproduced as follows:
This letter is written in support of an employee of the Club, Mr. Robert Jensen.
Robert has been employed here at the Club since October 1998.
Robert has been a loyal and conscientious worker over most of the period of his employment with this Club, however in recent times I have become concerned with Robert’s obvious change in behaviour. In layman’s terms at times he appears unnerved, and some times confrontational. He has become forgetful and as a result I have modified his duties on a number of occasions to much less demanding roles.
I have favoured Robert in this way as I have been aware of his services in South Vietnam and of course his loyalty to this Club in recent years. However because of commercial considerations, this favour cannot continue and I have pointed out to Robert that this employment situation may not be ideal for him.
I hope this letter can be of help in support of Robert’s pension claim. Should you require any further information in support of Robert please feel free to contact me.
37. Dr Ridley said that the history, as evident by that letter, is not unusual and is consistent with his experience of treating Vietnam veterans. That is to say, employment is usually taken up with some enthusiasm but there is an eventual deterioration in performance and behaviour.
38. Dr Ridley was then taken to events in service relied upon by the applicant. He said that the applicant’s response to observing a Vietnamese civilian did not offend the DSM IV definition of “stressful event” despite his personal response not then being immediate. He said that responses to “stressful events” do not need to manifest immediately and could manifest by delay over a period of days, weeks, months or years. He said this is consistent with DSM IV. He used as an example persons who are involved in motor car accidents. He said it would not be unusual for the driver of a vehicle to alight from it, exchange names and addresses, arrange for towing and when returning home being “hit” by the event. He said this is a normal experience of persons involved in trauma where persons “get on with it but react later”. When it was explained to him that there was no apparent threat to Mr Jensen by that event, Dr Ridley said that he understood the applicant’s case was that there was a threat by him towards the civilian. He thought that this was consistent with the DSM IV definition of “being under threat of harm to self or others”. He also thought that the applicant’s perception of the event was a critical feature because as he interpreted the history by Mr Jensen to him it would appear that the applicant felt as if his life was then in danger. He said it was important to recognize the applicant’s perception of this incident. He was reinforced in this view because the applicant had expressed to him that he had been horrified that he (the applicant) could have shot the civilian.
39. Dr Ridley was then asked to comment on a suggestion put to him by Mr Douglass that the applicant’s symptoms had appeared to deteriorate – particularly in recent years- as evident by the histories obtained by doctors from 1997. Dr Ridley said that he had treated the applicant and had not seen him in a medico-legal context. He was unable to comment upon whether the applicant had embellished his history with other doctors but he was confident that the history, as he obtained, had not been embellished or exaggerated. He was aware that the applicant had made a number of claims and thought that the frequency of attending doctors and having to recall and explain his history “continued to expose Mr Jensen to the trauma”. Dr Ridley said that he had a number of patients who demonstrated PTSD symptoms associated entirely with the process of litigation in which they were involved. Additionally he said that his relationship with Mr Jensen was such that over a period of time the applicant had become more trusting and more comfortable. He said this allowed him to obtain more detail of events in service and other episodes in his life.
40. In re-examination Dr Ridley said that he had not discussed with the applicant whether he had a willingness or a preparedness to return to work. He thought that such a discussion would not be productive.
41. In response to some questions from me, Dr Ridley said that the applicant continues to suffer from alcohol dependence despite consumption of the Naltrexone medication. He said that it could probably also be argued that the applicant continues to suffer from alcohol abuse if he were assessed “longitudinally” however if he were assessed on a “cross-sectional” basis, alcohol abuse could probably not be established.
42. After some further discussion concerning this issue, Mr Douglass conceded that the applicant does satisfy the diagnosis of alcohol dependence.
43. The hearing resumed in Melbourne on 12 November 2004. Mr Douglass indicated that he intended to call Mr J M Church who provided three reports bearing the letterhead “Writeway Research Service Pty Ltd”.
44. Two of the three reports contained extensive references by Mr Church to conversations he had with Lt. Col. Taylor who was the Commanding Officer of D Company 4RAR at the time the applicant served in Vietnam. Additionally Mr Church recited extracts from a book published by Mr Taylor entitled “Last Out: 4 RAR/NZ (ANZAC) Battalions Second Tour in Vietnam”. Mr Douglass also indicated that it was the intention to call Mr Taylor.
45. Mr De Marchi on behalf of the applicant objected to Mr Church giving evidence and referred to him in terms which were not flattering and which need not be repeated. The essence of the objection to Mr Church giving evidence was that it was submitted that he was not qualified to give the evidence that he reported. Additionally, objection was taken to calling Mr Taylor who had not provided any proof of evidence despite Directions issued by the Tribunal.
46. Mr De Marchi then sought to lodge a letter by Mr Terry McInerney from the South Western Veterans’ Centre in Warrnambool. The letter had a number of pages attached from what appears to be a magazine and which purports to give a commentary on the crash landing of a helicopter in Vietnam. Mr De Marchi also advised that he intended to call Mr McInerney although he acknowledged that he did not have any proof of evidence from him and did not know what his evidence would be.
47. After much discussion – mainly concerning the failure of both parties to comply with the Directions made as to the lodging of documents (including a proof of evidence of witnesses) I decided with reluctance to direct that the remainder of the day allocated for the resumption of the hearing be occupied with the taking of medical evidence. I directed that both parties lodge proofs of evidence of Lt. Col. Taylor and Mr McInerney respectively no less than 72 hours prior to the resumption of the hearing.
medical evidence
john chalk
48. Dr Chalk is a psychiatrist in private practice in Brisbane. He provided a report at the request of the respondent on 25 July 1997 (T6 p41) following a consultation with Mr Jensen arranged by the Department of Veterans’ Affairs (“DVA”).
49. Dr Chalk reported that Mr Jensen had told him that he experienced “occasional dreams about being in Vietnam” but they did not relate to any particular incident. Additionally, Mr Chalk obtained a history from Mr Jensen of an absence of any past psychiatric illness, counselling or deliberate self harm but he did obtain a history that he had, on occasions, ventilated his frustrations by “punching things such as fences and windows. He said that he started doing this when he married in 1973 and that the only alternative he saw was to get drunk”. Thereafter Dr Chalk obtained a history of heavy alcohol consumption interfering with the applicant’s employment, affecting relationships and contributing to criminal convictions and offences relating to the use of a motor vehicle.
50. Dr Chalk confirmed that he did not obtain any history from Mr Jensen of being engaged in any combat or conflict in Vietnam and said that he specifically asked Mr Jensen whether he had suffered any stresses in service and was told that there were none. Dr Chalk said that he specifically asked this question because he had been asked by DVA to consider whether Mr Jensen suffered from PTSD. He concluded by way of diagnosis that the applicant was an alcoholic who did not suffer from PTSD or “any major functional psychiatric illness”.
51. In cross-examination Dr Chalk said that he had recently been provided with a number of medical reports from Drs Ratnayke, Ridley, Calder-Potts, Hargreaves, Majumdar, Wright and Taylor. He said that he was aware that Dr Ridley in Warrnambool had treated Mr Jensen and a diagnosis had been made (as evident by his report) of generalised anxiety disorder and alcohol dependence. Dr Chalk said that he was not aware that Dr Ridley had said in evidence in Warrnambool that the applicant also suffers from a sub-clinical PTSD.
52. Dr Chalk said that he consulted with the applicant on one occasion only, in 1997 and then for three-quarters of an hour. He said his file then comprised a referral letter from DVA which requested that he examine the applicant and consider whether PTSD was the appropriate diagnosis. Dr Chalk confirmed that he did not have any history from the applicant of him being exposed to a civilian who approached him whilst on patrol, this being an incident where the applicant had described his fear of shooting at that person. When asked whether that incident was likely to precipitate PTSD, Dr Chalk said that he could not give such an answer and considered the proposition to be hypothetical. When asked to comment upon whether the evidence of Dr Ridley should be preferred, because he had treated the applicant and would have obtained a more thorough and comprehensive history, Dr Chalk disagreed. He thought such a relationship constituted a “therapeutic alliance” which he said causes a negative affect on the objectivity of the treating doctor.
53. Dr Chalk acknowledged that he did not have a history of the applicant’s age at enlistment nor any history of whether Mr Jensen enjoyed his enlistment. He did say that “he didn’t tell me he disliked it”. Dr Chalk was unaware that the applicant was discharged from the Army as being unsuitable. When he was informed that the applicant had also given evidence that he had been a member of a party which had attended the scene of a helicopter crash and had been scared of conflict with enemy persons, Dr Chalk acknowledged that this might have caused the applicant some concern.
54. Dr Chalk said that he has an extensive practice currently of approximately 100 patients and consults at the request of DVA and the Military Rehabilitation and Compensation Commission. He said he referred to the SOP for PTSD when completing his report and had been provided with the diagnostic criteria for PTSD from DSM IV. He thought the applicant did not suffer PTSD because he had not been exposed to an event involving intense fear or horror. When he was reminded that he did not obtain a thorough history from the applicant nor did he know of events in service on which the applicant relied, Dr Chalk said that he saw the applicant on one occasion only and then for three-quarters of an hour where a full history was not then given. He acknowledged that had he obtained a history similar to that of Dr Ridley of nervous problems for many years it would have been an “important element”. Additionally he said that had he obtained a history of the applicant suffering from nightmares of his service (as opposed to dreams about service) he would have been assisted in forming an opinion as to diagnosis.
55. Dr Chalk thought that it was unlikely that PTSD could have been suffered after his consultation with Mr Jensen in 1997. He acknowledged that there was a concept of “delayed PTSD” but he said, based on his observations of the applicant and the history taken from him, that this was unlikely.
james wright
56. Dr Wright is a psychiatrist in practice in Brisbane. Mr Jensen was referred to him by Dr Ng in July 1998. He provided a report dated 16 July 1998 found within the clinical notes of Dr Ng, received into evidence as Exhibit 2.
57. Dr Wright saw the applicant on one occasion only and reported that the applicant had told him that he had been suffering from “bad nerves”, “over the last few years”. Dr Wright said that this description of the duration of the period of time from which Mr Jensen had been suffering “bad nerves” was “as precise as he had got”. He also reported that the applicant was “rather vague about exactly what he meant by this” but did volunteer that he was stressed with slow drivers, has poor sleep and occasional bad dreams (including “an incident which occurred in Vietnam”) but denied bad memories or flashbacks. Dr Wright said that he had no other symptoms given to him by Mr Jensen. In the report he also recorded that there was “an incident” in Vietnam. However, whilst giving evidence, he observed in his hand written notes that he recorded that Mr Jensen had told him of an episode involving a person wearing black clothing about to fire at him.
58. Dr Wright obtained a history of the applicant consuming alcohol in his teens and thereafter having a history of heavy drinking without variation. Dr Wright also reported that the applicant had told him that he “was too young to realise what was going on” and whilst he thought that his service in Vietnam was “scary”, nonetheless he also advised Dr Wright “on the whole he didn’t see anything too traumatic”. Dr Wright was adamant that this reference found within his report was a direct quotation from the applicant.
59. The witness ultimately concluded that Mr Jensen was alcohol dependent and suffering from anxiety. He acknowledged that he saw the applicant on one occasion only and in the absence of any other consultation he did not regard his conclusion as being definitive.
60. In cross-examination Dr Wright said that he did not know Dr Ridley but when it was learnt that he had diagnosed the applicant as suffering PTSD, Dr Wright said “nothing surprises me”. He said that he did not prefer to consult again with the applicant in order to be more confident in his diagnosis because at the time of consultation he did not “think he had many problems at that stage”. He said that it was not unusual for persons to fail to appreciate or understand symptoms, no less veterans. He also agreed that it was possible for a person to succumb to a psychiatric illness later, by events which occurred earlier in life. When he was asked to consider the applicant’s evidence of having observed a person out of the corner of his eye whilst on patrol and being upset that he may have shot that person, Dr Wright again confirmed that he had a handwritten note (not recorded in his report) of the applicant informing him that he “swung around when he saw someone in black”. Dr Wright acknowledged that this could be referrable to some of the applicant’s dreams and that it may also relate to an incident in service.
61. When asked to consider the applicant being involved in the provision of security surrounding a helicopter which had crashed, Dr Wright thought that the applicant’s reaction to that event would depend upon whether he then thought that his life was then threatened.
62. Dr Wright was of the view that a person treating the applicant would be more likely to have a comprehensive history and be in a better position to offer or make a diagnosis.
63. In re-examination, Dr Wright said that persons who are involved in litigation and who consult medico-legal doctors on a number of occasions could give a “learned response”.
rasanjali ratnayake
64. Dr Ratnayake is a psychiatrist in practice in Albert Street, Melbourne and also at the Pine Lodge Clinic, The Mercy Hospital and the Ringwood Community Health Clinic. She provided a report at the request of the respondent on 30 July 2003 following a consultation on 23 July 2003.
65. Dr Ratnayake reported, and said in evidence, that on the presentation to her, the applicant did not “fulfil the criteria for PTSD” because he had no sense of a foreshortened future or restricted affect or hyper vigilance. When referring to the DSM IV criteria, whilst acknowledging that the applicant gave her a history of flashbacks and intrusive memories, it was her opinion that they were not of a sufficient degree to permit a diagnosis of PTSD. She said “anyone can complain of the symptoms, but there should be corroborative evidence on mental state examination”.
66. Dr Ratnayake was aware of a report previously completed by Dr Chalk and she noted that he reported the applicant had been drinking alcohol since the age of 15. Whilst there appeared to be some evidence of excessive alcohol consumption subsequent to Vietnam service, she was also of the opinion that the applicant had been able to work “for some time” (thereby discounting the incapacitating effects of alcohol). She also said in evidence that the applicant did not report to her any particular events in service which would be responsible for alcohol consumption subsequently. However, she “assumed” that he had been under stress whilst in Vietnam. She reported that Mr Jensen had become “gradually anxious and depressed over the past few years” which was an opinion she formed upon the history provided to her. She noted that the applicant related his anxiety to his Vietnam service and he had been anxious since he returned from Vietnam. By way of reaffirming her view that PTSD did not exist, she noted that both Dr Chalk and Dr Wright in 1997 and 1998 respectively, did not diagnose PTSD.
67. With respect to the applicant’s personal history (report page 4) she noted that the applicant had a disturbed childhood, that he had problems with schooling and some convictions as a minor. She thought that history indicated that the applicant had “poor impulse control” which she said caused him to be prone to alcohol consumption and was consistent with him consuming alcohol at the age of 15. She also thought that his poor work history and offences before enlistment were indicative of poor impulse control.
68. By way of diagnosis Dr Ratnayake found that the applicant suffered from generalised anxiety disorder but reported (page 5) that she could not “state with any accuracy when Mr Jensen first developed anxiety disorder”. In evidence she said that there was no evidence of generalised anxiety disorder occurring immediately subsequent to the ending of Vietnam service but rather it had been present “for a few years”. She said that Mr Jensen spoke to her of being on edge and tense and his admission to a hospital in 2002 in Queensland after a suicide attempt was indicative then of him being “quite anxious”. Dr Ratnayake had been provided with SOPs concerning PTSD and generalised anxiety disorder but it was only the latter condition that she said satisfied DSM IV. She said that there was “no clear evidence to link it [PTSD] to Vietnam on the basis of the Statement of Principle”.
69. Dr Ratnayake was then notified of the evidence of Dr Ridley in Warrnambool who, in addition to diagnosing generalised anxiety disorder also found a sub-clinical PTSD. She said that this was a term not generally used when referring to PTSD and suggested to her that there was some PTSD symptoms present. She thought that it was not a valid diagnosis but did acknowledge that the expression “sub-clinical” is sometimes used when diagnosing persons with depression and is intended to mean that a number of symptoms were missed or were masked. When asked to comment upon a reference within the evidence of Dr Ridley to PTSD having a delayed onset, she thought that it was more likely to mean that by reason of the combined effects of alcohol consumption and the symptoms of generalised anxiety disorder that the applicant had been “thinking of a period when he was not happy and constantly thought about it – I consider this to be part of a depression”. Accordingly, in her opinion, “delayed onset” did not mean that the condition of PTSD had been delayed for many years.
70. Dr Ratnayake said that she had on many occasions seen variations between practitioners in diagnoses made and the histories obtained. She thought that multiple medical examinations over many years could affect the making of a diagnosis and the expressing of an opinion ‑ particularly if doctors were not well trained in the questioning of patients. On some occasions she said doctors would assume that PTSD does exist. She thought that the reports issued in the 1990’s and located within the T-documents were more likely to reflect the accuracy of diagnosis and report the true clinical picture and clinical findings then existing. She was familiar with the expression “therapeutic alliance” and said that the term was referrable to a good rapport existing between a patient and a treating doctor and it would mean that the patient has trust in the treating practitioner.
71. In cross-examination Dr Ratnayake confirmed that she consulted with Mr Jensen on one occasion only in 2003. Whilst she obtained a history of two events in service she thought that the applicant tended to focus on the event where he was confronted with or by a civilian. Whilst confirming that she was familiar with the SOPs in the DSM IV diagnosis of PTSD, she said that the word “confront” was not an expression that was likely to be used in psychiatric practice. She thought that the applicant had poor impulse control which she explained to mean that he was unable to control his behaviour and he “gave in to his impulses”. She said he had a pre-disposition to depression because of a number of events in his childhood. She noted that the applicant was exposed to alcohol in Vietnam and obtained a history that he blamed that exposure for his continued use of it which she acknowledged was a possibility. She said that she did not obtain a history of alcohol consumption prior to enlistment but noted that Dr Chalk did have such a history. Rather she obtained a history that the applicant “claims to have started consuming alcohol heavily during war service in Vietnam” (refer report page 5).
72. The witness said that said that she did obtain a history of the applicant having dreams and he “mentioned” that he suffered from nightmares. However she reaffirmed an opinion previously expressed that Mr Jensen’s symptoms were reinforced by having to continue to recount to doctors and being asked questions by them. She acknowledged that she saw him on one occasion only, yet she was confident that he did not suffer PTSD, but from generalised anxiety disorder. She acknowledged that the definition of generalised anxiety disorder within DSM IV excludes the diagnosis of PTSD and also acknowledged that some of the PTSD symptoms, pursuant to DSM IV, are symptoms within the DSM IV diagnosis of generalised anxiety disorder. When again asked to comment upon the opinions expressed by Dr Ridley, namely, that the applicant suffered a sub-clinical PTSD that had been unrecognised for many years but was now ”full blown”, she said that she had not ever read his report. When she did read it she concluded that it appeared that Mr Jensen was admitted to a hospital in Warrnambool where a diagnosis was then made by hospital staff of generalised anxiety disorder and alcohol dependence. She said that the diagnosis made by Dr Ridley – as evident by his report – was absent any mental state examination. She did note that Dr Ridley found that the applicant did endure startled responses which she did not observe. However, she did note that he suffered flashbacks which were often triggered by the sound of helicopter noises. Nonetheless she maintained the opinion she expressed in evidence-in-chief that the applicant did not suffer from hyper vigilance or restricted affect, thereby excluding the diagnosis of PTSD. She thought the applicant suffered from poor impulse control manifesting in him suffering from road rage and irritability. Nonetheless she thought that it was not “unreasonable” for Dr Ridley to have distinguished between past and current symptoms, thereby causing him to conclude that the applicant had suffered from generalised anxiety disorder and PTSD more recently.
73. Dr Ratnayake said that she did not observe that the applicant had a persisting tremor in his legs during examination but did concede that his psoriasis suffered by him was an indicator of stress.
74. Dr Ratnayake was then taken to an assessment completed by her pursuant to GARP where she allocated 1 as a score applicable against “Employment”. She noted that she had expressed the opinion that the applicant was capable of working for up to 20 hours per week. She was reminded that in her report she found that he had not worked since 2002 and had then ceased employment because of an argument with his boss. She acknowledged that she did not “give him credit” for incapacity from 2002.
Lieutenant Colonel Taylor
75. On the third day of hearing the respondent called Lieutenant Colonel Jeremy Taylor. Mr Taylor provided a statement two days prior to the resumed hearing concerning the issues principally in dispute namely, whether the applicant was engaged in a party providing a perimeter shield around an Australian helicopter which had crashed after having been fired upon and in relation to an incident where Mr Jensen described a patrol where he observed a civilian person.
76. Subsequent to the conclusion of the evidence of Mr Taylor, the applicant’s representative lodged three Proofs of Evidence from persons who knew the applicant and who confirmed that he was engaged in a party which did provide a perimeter shield to an Australian helicopter which had been shot down. In written submissions subsequently lodged by the respondent, it is now conceded that the applicant was engaged in such an exercise.
77. In these circumstances, only the evidence of Mr Taylor concerning the patrol is recorded in these reasons.
78. The statement of Mr Taylor, in so far as it concerned the patrol is reproduced as follows:
CONTENTION 1
Just before dusk in early September 1971 he was heading out on a night patrol from Nui Dat. They went through the perimeter and started to walk around. They were going to make a base just outside the perimeter. He was ‘tail and Charlie’. He caught something out of the corner of his eye. He went to swing around and then realised that it was a civilian. He said he came close to pulling the trigger. He said the civilian should not have been there. No one else saw the person.
Depending on the season and weather, dusk in Phuoc Tuy Province was approximately 1830-1900hr, and it was dark by about 1900hr or shortly after. So because Mr Jensen contends that his patrol left the 1ATF perimeter ‘Just before dusk…’ it can be assumed that there was enough light to give reasonable observation over the area through which the patrol was moving.
In addition, the ground immediately outside the Nui Dat perimeter was kept clear of foliage out to about 800 metres on the east, south, and north sides, and for at least 1.5 kms on the west side. This was done to ensure that enemy soldiers could not get close to the perimeter-wire unobserved. Therefore if this patrol took place ‘just outside the perimeter’ there would have been very little concealment available for a civilian or an enemy soldier. And unlike the forested parts of Phuoc Tuy Province, where visibility was often 15-20 metres, here visibility was several hundred metres in all directions.
Moreover in the country areas of Phuoc Tuy Province, a curfew for civilians had been in place for several years. This meant that civilians were forbidden to leave their villages from 1800-0600 hours each day. This was rigidly enforced, and by 1971 civilians were well aware of the curfew and the lethal consequences of being near the 1ATF area after 1800 hours.
Mr Jensen does not say what the size or the task was, nor on which side of the 1ATF base his patrol took place. However because 1ARU was a training unit the patrol would not have been less than section-sized, with a complement of ten men commanded by an experienced corporal.
Regardless of the size or mission of Mr Jensen’s patrol, it would probably have been moving in single file. This was the most widely used formation because by day or night it was easy to control and quick to react if an enemy was encountered. The interval between each man would have been not less than 5 metres, which meant that a section covered about 50 metres from front to rear. The patrol would have exited the 1ATF perimeter-wire in this formation and interval.
The first two members of the patrol would have been the leading scouts. The scouts task was to search ahead of the patrol to ensure that it did not come unexpectedly on an enemy. Each man behind the scouts would be allotted an arc of observation and responsibility to the left, or right, alternately. The last man, tail-end-Charlie (in this case Mr Jensen) was primarily responsible for observing to the rear of the patrol.
Whatever primary mission the patrol had been given, every man would have known that his immediate and vital task was to observe his arc of responsibility; it was a fundamental imperative of all tactical training and subsequent combat operations. Failure to do so on active service would not only put his own life in danger, but also the lives of the other members of the patrol as well.
So the situation at the time of Contention No1 would have been this. The patrol would be advancing in single file through an area where there was little or no concealment for individuals or groups; visibility was out to several hundred metres in all directions; the area all round the patrol was being minutely scrutinized by several pairs of very careful and vigilant eyes with a vested interest in staying alive; and it was at least half an hour after civilian curfew came into force.
It was a fundamental of training and operations that if any member of the patrol saw someone, or anything suspicious, he should either report it quietly to the patrol commander, or initiate a contact drill. This was drummed into Infantrymen relentlessly throughout their training. And it should be remembered that Mr Jensen had already undergone 14 months of training with 4RAR in Australia (from 26 March 1970-3 May 1971) before coming to Vietnam for follow-on training with 1ARU.
After receiving such a report, the patrol commander would make an instant decision on what action he would take. Whatever other action he took, the patrol commander would immediately report the sighting or contact over his radio-set to his controlling command post, where it would be noted in the duty officers’ log. And regardless of what action was then taken, that report would be immediately passed to the 1ATF CP, and noted there in the log. During his research, Brigadier Church found no such entry in the 1ATF log. And I found no such entry when researching the relevant 4RAR documents for my book.
It should also be emphasised that one in every three or four of the 1ATF perimeter bunkers were manned from stand-down in the morning (about 0645hr) until stand-to at night (about 1830hr). From stand-to until stand-down at night (from about 1830-1930hr), and again in the morning (from about 0545-0645), all perimeter bunkers and weapon pits were manned. After stand-down at night all bunkers were manned by two sentries each, on two-hour shifts. At all times, any movement outside the perimeter would be immediately reported and followed through.
Apart from these fundamental precautions, light observation fixed and rotary-winged aircraft from 161 (Independent) Reconnaissance Flight, conducted visual reconnaissance flights over the 1ATF area just before dusk and at first light every day.
Given all the foregoing factors, I do not believe that a civilian presence would have been missed by everyone in the patrol except Mr Jensen. In the circumstances it’s so unlikely as to be impossible.
I also believe that it’s unlikely that the civilian presence would be missed by the perimeter sentries; and by the reconnaissance flight.
Nor do I believe that a trained infantry soldier would neglect to report such a sighting when he knew that his duty demanded it, and his own life, and the lives of his comrades, depended on him doing so.
79. In evidence, Mr Taylor said that he was the Commander of D Company of the Royal Australian Regiment Battalion in 1971 in Vietnam. Previously he had been the officer commanding the Administration Company in Vietnam.
80. Mr Taylor said that Mr Jensen joined D Company on 23 September 1971. Immediately prior to that date D Company had been engaged in battle with the 3rd Battalion of the 33rd North Vietnamese Army Regiment at Nui Lay. One Australian person was killed and in a further battle on 25 September 1971, five Australians were killed and nine were wounded. The battle on 25 September commenced at 9 o’clock in the morning and concluded after 11 o’clock at night after D Company was joined by a New Zealand Company. The following day, D Company was withdrawn by helicopter to Nui Dat.
81. Mr Taylor said that D Company became a ready reaction task force and its responsibility was to act as a reserve task force in the event of any attempt to attack its Australian bases in Nui Dat. It had been known since 18 August 1971 that Australians were to be withdrawn from Vietnam and, but for the episode in September 1971, D Company conducted extensive patrols around its base in Nui Dat. He said that there were nine platoons patrolling the Nui Dat base in addition to ambush patrols. He said there was at least one armoured ambush patrol operating at the time of perimeter patrols and patrols were being operated for 24 hours of each day.
82. Mr Taylor described in his statement the topography surrounding the Nui Dat base but said that he was unaware of the applicant’s location on the occasion that he said that he observed a civilian on a patrol. He said that the north, south and eastern side of the Nui Dat base was cleared to ground level and the western side was cleared to a distance of about 1½ to 2 kilometres. Beyond that he said the vicinity was forested and there were some paddy fields. He said that patrols operated in a routine deployment of walking in single file. He said there would have been two forward scouts and it appeared that the applicant occupied the rear position of the patrol which was known as “tail-end-Charlie”. A curfew existed in the vicinity of base prohibiting local civilians entering that vicinity between 6.00 p.m. and 6.00 a.m. daily. He said the curfew was well understood locally, because of a previous attack on civilians walking in the vicinity of the base on their way to paddy fields at 5.00 a.m. who had been attacked and killed. He said that local persons would have known by that experience not to have entered the zone surrounding the base during the curfew.
83. Mr Taylor said that standard procedure in a patrol, in the event that a person is spotted, is to communicate to the person in front by a hand signal and thereafter that communication would be passed to the Commander leading the patrol. He said there was no discretion available to any member of the patrol not to pass on such an observation even if the person observed was known to be a civilian. Mr Taylor said that on the occasion that the applicant was engaged on this patrol, and on the occasion of other patrols, forward scouts would have “swept” the area being patrolled. In those circumstances and having regard to the degree of clearing outside the base, Mr Taylor was of the view that it would have been “impossible” for all other members of the applicant’s patrol – who would have been walking in front of him – not to have observed the civilian alleged to have been seen by the applicant.
84. In cross-examination, Mr Taylor said that he did not think from the description given to him of the applicant’s activity on patrol that he was engaged in a “clearing patrol”. He said with the applicant’s description of patrolling close to base, and by reason of vegetation being cleared around the base to a distance of 800 metres, a patrol would not need to be sent out because an area cleared to 800 metres could be observed from the base itself. Mr Taylor acknowledged that the patrol may have been a “standing patrol” or a “ambush patrol”. He said a standing patrol is not engaged in open territory (unless it occurs at night time) and an ambush patrol would not have operated where it could be observed by enemy forces (again unless it occurred during night time). It therefore followed that if the applicant was engaged in patrols in areas where there was vegetation or creek beds, a civilian person may not have been observed. However, Mr Taylor again said that he understood from the applicant’s evidence that he was patrolling close to the perimeter of the base which would have been cleared to a distance of about 800 metres.
85. Mr Taylor acknowledged that in the event that members of the applicant’s patrol observed movement or an individual they would have been ready to shoot. It would have been a frightening experience for all members of the patrol because in the circumstances described by the applicant, all of the members of the patrol would have walked past the civilian that was observed by the applicant. Mr Taylor said that the applicant probably would have learnt from other members of D Company that they had been engaged in previous combat involving casualties and he may have been apprehensive about participating in a patrol. Nonetheless he said the applicant would have “known what to expect” yet the chance of coming into contact with a member of the enemy force outside the perimeter of the base was remote. He said at the time of this patrol there was no knowledge of any North Vietnamese or Viet Cong regiments any where near Nui Dat and the only persons around Nui Dat would have been civilians. In his experience, those persons would have observed the existence of the curfew. He acknowledged that there may have been persons who appeared as civilians but were Viet Cong sympathisers undertaking reconnaissance, but in his opinion it would have been unlikely that those persons would be in the vicinity of the base because they could have observed it from the Nui Thuy Bai hills, with binoculars.
the helicoper incident
86. Whilst the respondent conceded that the applicant was engaged in the provision of a perimeter shield following an Australian helicopter being shot down, it did not concede that any illness suffered by the applicant was associated with his participation in that event. Subsequent to the hearing concluding, the applicant’s solicitor lodged three statements from persons who confirmed the applicant’s participation in that event. None of these three persons were called to give evidence and the contents of their statements have not been subjected to cross-examination. The three statements omitting irrelevant parts, are reproduced as follows:
I, Peter Foley do solemnly and sincerely declare that I was Private Jensen’s Section Commander in our deployment at Vung Tau from November 1971.
Mr Jensen is quite correct about a chopper being downed during this period.
There may be some confusion as 11 PLT were the Ready Reaction Platoon that day. However 11 PLT could not be located in time, and I informed Coy Headquarters that my section was ready ie 17PLT. We were transported by chopper to a paddy field I think near Baria where we formed a perimeter around the helicopter. I think the Platoon Cmdr was Lt. Gary Bryant.
Major General Jim Hughes
1.As stated previously the incident with the downed helicopter is well remembered. However, how the incident was handled was not clearly remembered.
2.About mid Nov 1971 161 Independent Reconnaissance Flight received a new reinforcement pilot. Lt G Steel a NZ pilot on attachment, was detailed to give the new pilot an orientation flight over Phuc Tuy Province. In particular, he showed the pilot where an Australian helicopter was shot down in 1970 by rifle fire. Again an Australian helicopter was shot down suggesting that perhaps he also was flying at a low height!
3.Attached at Annex A is a statement by the then commander of the Ready Reaction Platoon for 15 November 1971 V13 Support Platoon. He clearly details how he came to have a section of 12 Platoon under command that day. Cpl Foley (the section commander from 12 Platoon) told me that he was at D Company HQ when the Ready Reaction Platoon was called out. He volunteered his section as he was proud his section was always ready to go. The section included Mr Jensen.
4.At Annex A Mr G Spinkston details exactly what occurred that day. It was considered a low scale incident, however, in accordance with Standing Operating Procedures all proper precautions were taken just in case.
5.Concerning the applicant Mr Robert Jensen. He joined 4RAR/NZ Battalion on 29 September 1971 and was allocated to 12 Platoon D Company. D Coy had just had a very difficult fight with a 33 North Vietnamese Army Battalion and a Regimental HQ . Post 29 September 1971 Mr Jensen would have completed various searching patrols and ambushes as the Australian force concentrated at Nui Dat for the final withdrawal to Vung Tau and then Australia. Like all other soldiers Mr Jensen would have been apprehensive at another operation. However, Support Platoon was at almost full strength (if not full) his Commander and all NCO’s plus many soldiers were battle hardened and he himself was not new to operations as such.
G D Spinkston
During November 1971 I was a member of D Coy 4RAR/NZ (ANZAC) Battalion. I had been OC 12 PL D Coy for most of the tour of duty but after being wounded on 21 Sep 71, I handed over command to Lt Gary Bryant and transferred to the Mortar Platoon in Support Company. When the battalion relocated to Vung Tau prior to withdrawing to Australia I returned to D Coy in command of a Support Platoon consisting of a section each of mortars, signallers and assault pioneers. We joined the D Coy Group which was to remain behind in Vung Tau to provide security for 1 ALSG as it packed up prior to also withdrawing.
On 15 Nov 71, my support platoon was the designated ready reaction platoon when an Australian Kiowa helicopter was shot down north of Long Son Island. My platoon was ordered to fly by 9 Sgn RAAF helicopter to the scene and secure the helicopter, its pilot and passenger until they could be recovered. One of my sections was absent and unable to return in time so a section of soldiers from 12pl, commanded by Cpl Peter Foley took their place. Pte Jensen was a member of that section.
We deployed at approximately 1030 hours and secured the helicopter which had landed in a paddy field. Although damaged by enemy fire the helicopter and crew were safe. We secured the area without incident and although the helicopter had been damaged by enemy fire, the task was completed without incident. No casualties were incurred, no enemy fire occurred and the task was a simple security one. After approximately 2 hours we redeployed to Vung Tau.
Other than normal security tasks on the perimeter of 1 ALSG, neither my platoon nor 12 PL was involved in any other incident during the period November 71 – February 72 when we returned to Australia.
I can recall no incident when Pte Jensen was under enemy fire or subjected to undue stress during that period.
submissions
87. The respondent lodged written submissions. It conceded that on the balance of probabilities, the applicant suffers from alcohol dependence and generalised anxiety disorder and submitted that those conditions, as a fact, should be found to exist. It was submitted that these diagnoses were consistent with the majority of the medical opinion expressed in this review. It was submitted that Dr Ridley, the applicant’s treating psychiatrist, had changed his opinion as to diagnosis, appeared to be seeking to assist the veteran in obtaining compensation, was not an independent witness and upon the evidence of Dr Chalk, it appears that Dr Ridley was affected by a “therapeutic alliance” with Mr Jensen. Additionally it was submitted that the evidence of Dr Chalk should be preferred as to diagnosis because he has an extensive military and veteran patient practice and specialises in military psychiatry.
88. As to causation, it was submitted that the applicant did not satisfy the SOP with respect to generalised anxiety disorder (Instrument No. 1 of 2000) because the experiences of the veteran did not amount to him having suffered a “severe psychosocial stressor” within factor 5(a)(ii) or as that expression is defined. Additionally, it was submitted that the applicant could not satisfy the SOP with respect to alcohol dependence (Instrument No. 76 of 1998) because he did not “experience a severe stressor” within the meaning of factor 5(a) or as that term is defined.
89. In the event that it was found as a fact that the more appropriate diagnosis was PTSD it was submitted that the applicant could not satisfy applicable factors under Instrument No. 3 of 1999, as modified by Instrument No. 54 of 1999, because he did not experience a severe stressor as defined.
90. Referring to the Statements of Major General Hughes and Mr Spinkston and by reference to the Federal Court decisions of Stoddart v Repatriation Commission [2003] FCA 334, Woodward v Repatriation Commission [2003] FCAFC 160 and Budworth v Repatriation Commission (2001) 63 ALD 422, Mr Douglass submitted it could not be found that the applicant experienced, witnessed or confronted an event involving death or serious injury.
91. It was submitted that in so far as the helicopter incident is concerned, the applicant’s participation did not amount to a “traumatic event” within the definition of PTSD as found in either DSM IV or within the SOP itself. In so far as the patrol incident is concerned, it was submitted that the circumstances surrounding it were at odds with the procedure that should have been followed on the evidence given by Mr Taylor, and it should be found that it would have been most unlikely for the event to have occurred at all, or in the manner described by the applicant. It was submitted that the event may have been the subject of, or had its origin in, upon the evidence of Dr Wright – a dream experienced by the applicant, rather than an actual event. If that were so, the applicant could not satisfy a SOP because the stressor did not result from any event in service.
92. In written submissions lodged by the applicant’s solicitor it was noted that the respondent had conceded that the applicant did suffer from alcohol abuse. It was also noted that the respondent conceded a diagnosis of generalised anxiety disorder but only since the applicant was hospitalized in 2002. It was submitted that the applicant satisfied Instrument No. 3 of 1999 with respect to PTSD. It was contended that the applicant had been confronted with an event that involved a threat of serious injury or death. Additionally it was contended that the evidence of the applicant’s treating psychiatrist, Dr Ridley, should be preferred because of the extent and duration of the applicant’s treatment, and by reason of the relationship he had developed with the applicant as his treating practitioner.
93. It was contended that there were two principal episodes in service which gave rise to a connection with injury. Namely, the event when on patrol when the applicant was confronted with another person, and the other event where the applicant attended at the location of a helicopter that had been shot down.
94. It was contended that the hypotheses raised by the applicant were reasonable, were consistent with the template of the respective SOPs and the decisions under review should be set aside.
95. Additionally it was submitted that upon acceptance of the conditions of PTSD and alcohol abuse, the applicant would attract impairment points greater than 70 per cent thereby satisfying the first qualifying criteria for special rate pension. It was additionally submitted that the applicant was totally and permanently incapacitated for work and was, in the circumstances, entitled to special rate pension with effect from 28 February 2002.
conclusion and reasons for decision
96. Diagnosis is a question of fact and is to be found on the balance of probabilities. A SOP has no role in making such a finding and resort to a SOP is impermissible (refer Benjamin v Repatriation Commission [2001] FCA 1879). Nonetheless it may be thought that the similarities between the definition of an illness or injury contained within a SOP and a definition of the same illness or injury as contained within DSM IV, is of no practical consequence (refer Gerzina v Repatriation Commission [2004] FCAFC 96).
97. A diagnosis of injury or disease must be made – not only to ultimately analyse the connection, if any, between service and injury – but to identify an applicable SOP.
98. A remarkable feature of this review was the divergence in the opinions between the psychiatrists who gave evidence. Dr Ratnayake for example was rigid in her opinions and resorted to DSM IV and its definitions in her dismissal of the opinion of Dr Ridley that the applicant suffered PTSD. It is important to bear in mind that DSM IV, in so far as it has applicable definitions contained within SOPs, is not to be interpreted “in a mechanical or cook book fashion” (refer Budworth v Repatriation Commission [2001] FCA 317). Additionally DSM IV is not statutory formulation but rather it is a “diagnostic manual” containing criteria to be used as guidelines for professional judgement (refer State of New South Wales v Seedsman [2000] NSWCA 119).
99. Dr Ridley was the subject of some criticism in the submissions of the respondent because his report suggested that the applicant suffered from generalised anxiety disorder but his opinion changed later to PTSD. It is my view that a fair reading of his report of 8 October 2003 indicates that within the report itself, Dr Ridley was satisfied that whilst a diagnostic criteria of generalised anxiety disorder had been satisfied, the history that he obtained of “a sense of threat on at least one occasion during his Vietnam service” caused him to “conclude from this that this criteria for post traumatic stress disorder is met” (report at page 4). The “sense of threat” as I interpret Dr Ridley’s report, was the applicant’s experience when he attended the site of a crashed helicopter. I draw this conclusion because of the circumstances of that event as described by Dr Ridley in his report, the applicant’s reaction to that event as contained within the history obtained and the absence in the report of a history of the applicant being engaged in the other events relied upon in these proceedings, namely the episode when on patrol.
100. I thought that Dr Ridley was an impressive witness who did form a relationship with the applicant, manifested by Mr Jensen being more forthcoming with him than he had been with other doctors. This must also be a consequence of the trust Mr Jensen placed in the therapy of Dr Ridley. The expression “therapeutic alliance” was advanced by some of the respondent’s witnesses disparagingly and in diminution of Dr Ridley’s opinion. In my view, the strength and value of his evidence has its origin in the time spent with Mr Jensen and his observations of him, most of which was not available to the respondent’s medico-legal witnesses.
101. It is interesting that Dr Chalk was not able to obtain any history from Mr Jensen of any conflict or combat in Vietnam. Dr Chalk consulted with the applicant on one occasion only, in 1997 and then for three quarters of an hour. Dr Wright attended the applicant on one occasion only and reported that Mr Jensen had told him that he “didn’t see anything too traumatic in service”.Dr Ratnayake said that she did not obtain any history from the applicant of any events in service which would be responsible for an increase in alcohol consumption and found that the applicant did not suffer from PTSD.
102. The contents of the reports of the above three doctors, together with the evidence given at the hearing, suggests to me – by way of comparison to the nature of the evidence of Dr Ridley and the history that he obtained – that Mr Jensen did not discuss his service history with those doctors and probably chose not to do so. That he was in a form of denial is also, in my view, consistent with the history of Dr Ridley that his relationship with Mr Jensen had evolved over the years of treatment to the point of Mr Jensen becoming more trusting and comfortable in treatment. Dr Ridley said that this then permitted him to obtain more details from Mr Jensen. Consequently he learnt more about Mr Jensen and his service than had been learnt by the other doctors.
103. On balance therefore, despite what might appear at first sight to be some confusion in the report of Dr Ridley as to diagnosis, I am now satisfied having read his reports and heard him in evidence at Warrnambool, that the correct and preferable diagnosis of the applicant is that of PTSD.
104. With respect to alcohol abuse and dependence there is no contest that the applicant did consume alcohol prior to enlistment. The respondent has also conceded the diagnosis of alcohol abuse or dependence but does not concede that it has a connection to service.
105. I am satisfied on all the medical reports read, upon the evidence of Mr Jensen and upon the evidence of the doctors in these proceedings, that despite the consumption of alcohol prior to enlistment (probably being responsible for his anti social behaviour pre-enlistment) that he has, subsequent to enlistment, consumed alcohol at a rate greater in quantity and frequency.
106. I am therefore satisfied that the applicable SOPs for consideration in this review are Instrument No. 76 of 1998 entitled Psychoactive Substance Abuse or Dependence and Instrument No. 3 of 1999 as modified by Instrument No. 54 of 1999 entitled Post Traumatic Stress Disorder.
107. Each Instrument contains a factor of experiencing a severe stressor prior to the clinical onset of PTSD or, clinical worsening of alcohol dependence or alcohol abuse respectively. The Instrument with respect to alcohol dependence provides that the severe stressor must be experienced within two years before the clinical worsening of the alcohol dependence or alcohol abuse. Paragraph 6 of that Instrument provides that the factor with respect to clinical worsening will only apply where there has been a material contribution or an aggravation of alcohol dependence or suffered or contracted before, or during, but not arising out of relevant service. In the context of this application, having regard to the evidence heard, there can be little doubt that the applicant was dependent upon alcohol prior to his operational service.
108. In both Instruments the definition of “experiencing a severe stressor” is virtually identical. Instrument No. 54 of 1999 defines “experiencing a severe stressor” in the following terms:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
109. Instrument No. 76 of 1998 differs from the above definition but only by the addition of the words “which event or events might evoke intense fear, helplessness or horror” after the word “integrity” in the first paragraph of the above definition.
110. The factors of “experiencing a severe stressor” respectively must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting PTSD and or alcohol dependence or alcohol abuse with relevant service.
111. In Repatriation Commission v Deledio (1998) 83 FCR 82 a Full Federal Court decided that there were four steps that needed to be considered in deciding whether a war-caused injury or disease was suffered. Those four steps are in the following terms:
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.
112. In so far as steps 1 and 2 are concerned, there is material which points to a hypothesis of connection and there are SOPs in force.
113. It is at the third step only that the hypothesis must be examined to determine whether it is reasonable. It will be a reasonable hypothesis if there is consistency with the template of the SOP.
114. In Stoddart, Mansfield J, discussed extensively the expression “a severe stressor” and extended His analysis to an observation of objective events and subjective reactions.
115. The Full Federal Court in Woodward acknowledged His Honour’s analysis and decided at paragraphs 139 and 141 the following:
139 When the question ultimately in issue involves the effect of an objectively stressful event upon a person's mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.
141 Mansfield J observed:
"[47] It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to ALD [alcohol liver damage] or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD. The respondent contends, and the tribunal accepted, that in the former case the conditions are consistent with an hypothesis of being war-caused, but in the latter case they should be seen beyond reasonable doubt as not consistent with an hypothesis of being war-caused. In this matter, if the applicant is believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and battle stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result.
...
[50] In my judgment, the meaning of the word `threat' as used in the definition of `experiencing a severe stressor' does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause `that involved actual or threat of death or serious injury' explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the `threat' there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. ... That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word `threat' a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them.
116. Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 expanded the analysis of both Stoddart and Woodward. At paragraph 26 His Honour decided “on the criteria adopted by the Woodward Full Court it is necessary to ask whether there was an event”.
117. Having regard to the language of the third step in Deledio and the necessity that a person must “experience, witness or be confronted with an event” (emphasis added) in order to have “experienced a severe stressor” under both of the above Instruments, I am satisfied – for reasons which will follow – that:
(i)An event did occur namely the applicant’s participation in the perimeter guard of the crashed helicopter; however
(ii)I am not satisfied that the incident on patrol occurred at all and accordingly such “an event” did not occur.
118. Because I am satisfied that the event of forming part of the perimeter at the crashed helicopter did occur – it being an objective event to which the applicant manifested subjectively a reaction which was not in my view “a totally irrational perception or baseless apprehension” (refer Delahunty at paragraph 27) and because “the definition must be approached in a manner which is not unduly restricted” (refer Delahunty at paragraph 27) I am satisfied that the third step of Deledio is also satisfied.
119. It is only at the fourth step of the Deledio analysis that facts will be found.
120. I was impressed by the evidence of Mr Taylor with respect to the procedures and protocols adopted during patrols of the base at Nui Dat. Having regard to the numbers of persons constituting the patrol, the position of those persons respectively, the role of forward scouts, the degree of clearance of the surrounding terrain, the absence of any report and the failure to communicate the presence of the person alleged by the applicant, suggests to me on balance, that such an incident in fact, did not occur.
121. I am satisfied that the episode with respect to the crashed helicopter did occur.
122. It is to be regretted that the applicant’s representatives produced evidence with respect to that event after all of the doctors had examined the applicant and had given their evidence. To the respondent’s credit it ultimately conceded that the event occurred. Had the doctors been aware that the event had occurred and was conceded, their view of the applicant and their opinion as to diagnosis, may have been different.
123. In evidence the applicant said that he was aware that an Australian helicopter had been shot down and he had been called upon to perform a perimeter shield. He said that he did not know whether enemy forces were present or in the vicinity and did not initially know whether members of the crew of the crashed helicopter had been killed or injured. He said that he thereafter became a “nervous person” and experienced dreams of a helicopter which had crashed.
124. Dr Ridley in his report of 8 October 2003 (page 3) reported that he obtained a history from the applicant that following the helicopter incident the applicant had “vivid recollections of this and generally was in fear for his life as he thought that at any time the enemy was going to attack and he would be killed. He told me that this is a frequent component of his bad dreams”.
125. Prior to, and during enlistment, it would be fair to observe that the applicant’s conduct on many occasions had been less than exemplary and there were occasions when he had been disciplined both as a civilian and as an enlisted person. However subsequent to service his alcohol consumption escalated, precipitating acts of violence, failure to maintain and dismissal from employment and the ending of his first marriage. The helicopter incident was – on the evidence – an event which did involve threat of death or serious injury to another person’s physical integrity. Obviously being shot at and crashing of a helicopter exposes the occupants to the risk of death or serious injury. Having to then attend that scene and provide a perimeter guard whilst the persons from within the helicopter were evacuated would continue to expose the applicant himself and his colleagues to the threat of death or serious injury. I acknowledge that the persons who provided the statements at the conclusion of the hearing discounted risk. From the applicant’s point of view however, he did react to that event and being at a location where enemy forces had caused the crash of an Australian helicopter, the applicant was entitled to reasonably assume in the circumstances that he was vulnerable also to being attacked. That belief would account for his reactions and in those circumstances I am satisfied that the PTSD was war-caused.
126. I am also satisfied that the clinical worsening of alcohol dependence or abuse did occur within two years of that event and by reason of that event. There is evidence of an increased consumption of alcohol after the helicopter incident. The above features applicable to the PTSD Instrument continue to apply and the expanded definition within Instrument 76 of 1998 also exist. On the applicant’s evidence, attending the scene of a crashed helicopter and participating in a perimeter shield did evoke, in him, intense fear, helplessness or horror.
127. For the above reasons I am not satisfied beyond reasonable doubt that the injuries of PTSD and alcohol abuse were not war-caused and I am not satisfied that any subsequent incapacity did not arise from the war-caused injury. Because I am not satisfied as above the claim must succeed.
128. The applicant’s representatives submitted that in the event the above conditions were found to be war-caused, pension should be paid at the special rate. This will only occur if the applicant qualifies for sufficient impairment points to meet the 70 per cent threshold under s24 of the Act. In the absence of such evidence no such finding by this review is permissible.
129. In all of the circumstances the decision under review will be set aside and in substitution it is decided that the conditions of PTSD and alcohol abuse or alcohol dependence are war-caused. The application is otherwise remitted to the respondent for assessment of pension in accordance with these reasons.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDates of Hearing 8 September, 12 November and 15 December 2004
Date of Decision 4 May 2005
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr R Douglass
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