Jones and Repatriation Commission
[2005] AATA 587
•21 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/585
VETERANS' APPEALS DIVISION )
Re BARRIE JONES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date21 June 2005
PlaceBrisbane
Decision The Tribunal:
(a) affirms the decision under review in relation to depressive disorder; and
(b) sets aside the decision under review in relation to post traumatic stress disorder and substitutes its decision that this condition is a war-caused disease, that pension for any incapacity associated with that disease is payable to the applicant from and including 9 February 2002 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.
.........[Sgd]............
RG Kenny
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2004/585
GENERAL ADMINISTRATIVE DIVISION )
Re BARRIE JONES Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2005] AATA 587
Tribunal Mr RG Kenny, Member Date24 June 2006
PlaceBrisbane
The Reasons for Decision handed down by the Tribunal on 21 June 2005 are amended so that the reference to Repatriation Commission v Kelly (1987) 15 FLR 327 is replaced with the following citation:
Repatriation Commission v Smith (1987) 15 FCR 327
[Sgd]
RG Kenny
MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service with Australian Army – post traumatic stress disorder and depression – appropriate diagnosis of conditions – standard of proof for diagnosis – application of Statement of Principles - reasonable hypotheses of relevant relationship to service raised for post traumatic stress disorder – condition war-caused and decision set aside – assessment of rate of pension remitted to respondent – no reasonable hypotheses of relevant relationship to service raised for depressive disorder – decision affirmed
Veterans’ Entitlements Act 1986 s 6C, 7, 14, 70, 120, 120A
Repatriation Commission v Budworth [2001] FCA 1421
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Kelly (1987) 15 FLR 327
Woodward v Repatriation Commission (2003) FCAC 160
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Keeley v Repatriation Commission (2001) 60 ALD 401
White v Repatriation [2004] FCA 633
Repatriation Commission v Stoddart (2003) FCAC 300REASONS FOR DECISION
21 June 2005 Mr RG Kenny, Member Background
1. Barrie Jones, the applicant, served in the Australian Army from 5 May 1964 until 13 May 1970. His service included a period in South Vietnam. He now contends that he suffers from post traumatic stress disorder and depression and that these are related to aspects of his service in South Vietnam.
2. On 9 May 2002, Mr Jones lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of “stress”. That claim, which was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 23 October 2002, that Mr Jones suffered from post traumatic stress disorder and depression but that these conditions were not related to any aspect of his Army service. That decision was affirmed by the Veterans’ Review Board on 4 May 2004 and, on 28 July 2004, an application was made on his behalf for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Jones was represented by Mr Anthony Harding of counsel and the respondent was represented by Mr J Kelly.
4.The following material was taken into evidence:
exhibit 1: the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T6)
exhibit 2: a statement, dated 14 October 2004, by the applicant;
exhibit 3: a statement, dated 25 May 2005, by the applicant’s wife, Gail Jones;
exhibit 4: a medical report, dated 29 November 2004, by Dr Christopher Danesi, psychiatrist; and
exhibit 5: a report dated 4 January 2005, by Craig Pearman, psychologist.
Mr Jones’s Service
5. The nature and extent of Mr Jones’s service with the Australian Army is not in dispute. He rendered a period of operational service and eligible war service, as defined in sections 6C and 7, respectively, of the Act in the period from 25 May 1966 until 13 June 1967 in or en route to and from South Vietnam. His claim was based upon events that occurred during his service in South Vietnam and, therefore, the claim is that the conditions are war-caused pursuant to sub-section 9(1) of the Act.
Determining a Relationship with Service
6. Sub-section 9(1) of the Act provides that a condition will be taken to be war-caused if:
§it resulted from an occurrence that happened when Mr Jones was rendering operational service; or
§it arose out of, or was attributable to, any eligible service rendered by him.
7. The standard of proof applicable to that determination is set out in sub-section 120(1) of the Act which reads:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
8. The application of that provision is affected by the terms of sub-section 120(3) and section 120A of the Act which require that consideration be given to any relevant Statement of Principle as published by the Repatriation Medical Authority (RMA).
The Conditions to be Considered
9. The first issue is that of determining the conditions which can be diagnosed in Mr Jones in response to his claim. Mr Kelly disputed the diagnosis of any psychiatric disorder while Mr Harding submitted that post traumatic stress disorder was the appropriate condition for consideration.
10. The standard of proof applicable to the determination of the appropriate diagnosis of conditions in Mr Jones is provided for in sub-section 120(4) of the Act – this requires such matters to be determined to the Board’s reasonable satisfaction: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. This imports the civil standard of proof so that matters of diagnosis must be determined on the balance of probabilities: Repatriation Commission v Kelly (1987) 15 FLR 327 at 335.
depressive disorder
11. Since July 2002, Mr Jones’ treating psychiatrist has been Dr Christopher Danesi who provided reports dated 14 August 2002 and 29 November 2004. In his evidence, he said that, while Mr Jones had experienced a depressive episode at the time he commenced to treat him, he did not suffer from depressive disorder. That was also the evidence of Dr John Wainwright who provided a report, dated 13 September 2004, at the respondent’s request. Mr Harding conceded that Mr Jones did not suffer from this condition and I am satisfied that this concession was properly made. This means that the decision under review in relation to depressive disorder must be affirmed.
post traumatic stress disorder
12. Drs Danesi and Wainwright were not in agreement about the presence of post traumatic stress disorder. Dr Danesi diagnosed post traumatic stress disorder. That was also the opinion of psychologist, Mr Pearman. This opinion was not shared by Dr Wainwright.
13. The Statement of Principles for post traumatic stress disorder is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. It provides a description of post traumatic stress disorder as provided for in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). This description in clause 2 of the Statement of Principles requires a traumatic event. It reads:
“A the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror.”
14. It is in respect of that component of the meaning of post traumatic stress disorder that the psychiatric evidence differs. Dr Danesi accepted that an incident described by Mr Jones in a Vung Tau bar which involved injuries to two US servicemen was a traumatic event as provided for in the Statement of Principles. Dr Wainwright concluded that the experience did not satisfy the traumatic event criterion.
15. In Woodward v Repatriation Commission (2003) AAR 424, the Full Court (at 433) confirmed that the question of whether a person suffers from a particular condition is not affected by a Statement of Principles even where it contains a definition of the condition: see also Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Deledio (1998) 83 FCR 82 at 96-97. On that basis, the question of whether Mr Jones suffers from post traumatic stress disorder is to be assessed on the available medical evidence.
16. Dr Wainwright examined and reported on Mr Jones in a forensic capacity and saw him on one occasion. Dr Danesi has been treating Mr Jones and has seen him on some twenty occasions. Mr Kelly submitted that the role of a forensic psychiatrist was to “suss out” the veracity of a claimant rather than to endeavour to improve the person’s health which was the province of a treating practitioner. As such, he submitted that the forensic analysis would be more objective and that, therefore, the evidence of Dr Wainwright should be preferred to that of Dr Danesi. Mr Kelly also submitted that no weight should be attached to the evidence of the psychologist, Mr Pearman. This was because Mr Jones had been sent to Mr Pearman by Dr Danesi and would have been aware of the opinion of Dr Danesi on the matter of diagnosis of post traumatic stress disorder before he undertook the relevant testing procedures. A second reason was that a psychologist was not able to properly diagnose psychiatric conditions and his evidence should not be accepted on that issue especially where there was clear evidence from a specialist psychiatrist in Dr Wainwright.
17. Whilst it may be the case that the contention of Mr Kelly about the relative merits of the forensic versus treating psychiatrists may be correct in some cases, I am satisfied that, in this particular instance, that is not so. Dr Wainwright provided a detailed report in which he referred to the incident in the Vung Tau bar and concluded that, whilst it may have been distressing at the time, Mr Jones’ response did not involve intense fear, helplessness or horror as required by the DSM-IV criterion for post traumatic stress disorder. He noted that Mr Jones had not actually observed the event which injured the two American servicemen but only the result of the event when he went to investigate what had happened. Dr Wainwright also concluded that Mr Jones did not demonstrate any persistent symptoms of increased arousal which was another element of the definition of post traumatic stress disorder.
18. Dr Wainwright referred to the circumstances in 2001 surrounding Mr Jones’ forced redundancy from his long term employment with W D and H O Wills. He said that this may have precipitated depression although he no longer suffered from the condition. He said that his employment had been an important part of his life, that it was not surprising that he had some “existential issues with regard to his enforced retirement” but that this did not constitute a psychiatric condition.
19. In his oral evidence, Dr Wainwright confirmed the content of his report but also made additional observations. He said that, by the time Mr Jones gave accounts of incidents in Vietnam, he would have been “well coached” by other members of the ex-Vietnam veteran community. He said that there had been no real stressor and this was another one of the coaching examples that he sees from time to time. He said that he often found similarities in the way that Vietnam veterans described events and he said that he had observed examples of Vietnam veterans being “well coached” over the years. He noted that Mr Jones had attended various post traumatic stress disorder courses and he believed that this provided an opportunity for such coaching to take place.
20. Dr Wainwright referred to the definition of post traumatic stress disorder in DSM-IV and he said that this was a less appropriate description of the condition than had been found in its predecessor DSM-III. This was because the earlier definition did not require the stressor to be subjectively experienced by a claimant but rather one that was traumatic to any person. Dr Wainwright agreed that Mr Jones had told him he had been fearful and that he had fled the scene. However, he said there was no threat to him because, by that time, there was nothing to fear. This was because the assailant had left by the time that Mr Jones became aware of what had happened and he said that it was not possible to be fearful if no threat was present.
21. Dr Wainwright also described the sighting of the injured American servicemen as being no different from the kinds of experiences that a person who attends a football game or who watches a football game on television would see when a player was injured. In that sense, he said that the sight of an injured person was not an unusual or uncommon thing and not one which would precipitate post traumatic stress disorder. Dr Wainwright agreed that he had said to Mr Jones words to the effect that he must have seen something like that in a pub at some time and he said that it was amazing that a person could feel out of the ordinary in that regard.
22. Dr Wainwright said that there was no benefit to be gained in a case such as Mr Jones’ by speaking to his wife in order to ascertain what difficulties may have been experienced by them during their marriage. He said that, in his experience, the interviewing of relatives was of little assistance “especially if there was money involved”. He said that Mrs Jones’ evidence would be tainted and biased by the prospect of the future payment of a TPI pension to Mr Jones. He said that he does not like to take the chance in that situation as he was not able to determine whether the relative would be speaking truthfully.
23. Dr Wainwright conceded that there was no material that he could point to in Mr Jones’ case to indicate that there had been any coaching of the kind that he referred to or any evidence that Mrs Jones would be an untruthful historian about events in the marriage or otherwise. He denied that he had pre-judged the outcome of his analysis and said that he had reached the conclusions concerning Mr and Mrs Jones on reflection of his report some months after it was written.
24. The written report of Dr Wainwright would support a finding that Mr Jones does not suffer from post traumatic stress disorder. However, when the report is analysed in the light of his oral evidence, I am not able to attribute the level of objectivity that Mr Kelly submitted should be given to his evidence in this case.
25. Dr Danesi has had the advantage of seeing Mr Jones on some twenty occasions. This has been over a period of almost three years. He said that Mr Jones had detailed to him various incidents that had occurred to him whilst he was in Vietnam. He said that the main one, and the one which constituted a severe stressor for the purposes of the definition of post traumatic stress disorder, was the incident involving the US servicemen in the bar in Vung Tau.
26. Dr Danesi said that, from his observations of him, Mr Jones met all of the requirements of the DSM-IV criteria for post traumatic stress disorder. He made reference to a comparison with the requirements of DSM-III and said that, in that context, it was relevant as to whether or not a particular event was common or uncommon and whether it affected people generally. However, for DSM-IV, he said the question was whether Mr Jones was fearful in the circumstances that he portrayed.
27. I have noted the submission of Mr Kelly that the evidence of a psychologist should not be accepted in relation to matters of diagnosis where there is specialist psychiatric evidence available. In this case, Mr Pearman gave evidence that he was not aware of the diagnosis that had been entered by Dr Danesi prior to his conducting his testing of Mr Jones. He said that he came to his conclusion that Mr Jones demonstrated all of the features described in the definition of post traumatic stress disorder in DSM-IV on the basis of the results that he obtained in his assessment procedures.
28. On the basis of the evidence of Dr Danesi and that of Mr Pearman, I am satisfied, on the balance of probabilities, that Mr Jones does meet the criteria in DSM-IV for the existence of post traumatic stress disorder. This means that the issue for determination is whether Mr Jones’ post traumatic stress disorder can be related to his service in Vietnam.
Principles of Causation
29. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation where operational service has been rendered.
Deledio Step 1
30. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. To that end, Mr Harding advanced one contention. This was that, in January or February 1967, Mr Jones was in Vung Tau on rest leave. He went to a bar near his hotel where he was sitting and drinking at a table with a local woman. He became aware of a confrontation and witnessed the results of an assault on two United States servicemen as a result of which they received leg wounds and fell to the floor bleeding extensively. Mr Jones was unsure of what was happening and, in fear for his own safety, left the bar and returned to his hotel.
31. Mr Harding submitted that this constituted a severe stressor which led to the onset of post traumatic stress disorder. I accept that this constitutes an hypothesis of a relationship to operational service for post traumatic stress disorder.
Deledio Step 2
32. The second step requires identification of the relevant Statement of Principles. As noted above, this is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999 for post traumatic stress disorder.
Deledio Step 3
33. The third step requires consideration of whether an hypothesis raised is a reasonable one. This requirement will be met if the hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
post traumatic stress disorder:
5 (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
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’ Entitlement 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;”
34. If the hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Evidence
35. Oral evidence was given in this matter by Mr Jones, his wife Gail Jones, psychologist Mr Pearman and psychiatrists Drs Danesi and Wainwright.
36. Mr Jones outlined his experiences in Vietnam in the following way. He was twenty-two years of age when he joined the army as an electrical fitter. He was part of the Royal Australian Electrical and Mechanical Engineers (RAEME) with 101 Field Workshops in Ingleburn, NSW. It was in that capacity as an electrician that he served in Vietnam. He worked in a mobile workshop which provided support by repairing electrical equipment. He frequently felt apprehensive whilst in Vietnam and recalled one occasion when he was travelling in a convoy of about six vehicles on the road from Vung Tau to Saigon when the convoy stopped because of what he believed to be an explosion on the road in front of the first vehicle. He was in the third or fourth vehicle and some 70 – 90 metres away from the first vehicle. He said that his military training and that of his fellow soldiers took over and they adopted an ambush position. He said that the matter passed without further incident and the convoy continued on its way.
37. The incident which provided him with the greatest degree of trauma in Vietnam was the one involving a knife attack on two American servicemen in a bar in Vung Tau. He was in Vung Tau his own because of the nature of his unit which could only spare one electrical fitter at a time. He described the bar as being some 30 feet by 15 feet in size and as not being very crowded when he entered, ordered a drink, and sat at a table. He was joined at his table by a Vietnamese woman and, sometime thereafter, he became aware of an incident at the bar. He heard screaming and saw two American servicemen sliding to the floor. He noted that one of them was clutching the backs of both legs and that the other was doing so in relation to one leg. He saw a Vietnamese man run from the bar. He stood and looked at the men on the floor who were writhing and screaming and noted blood coming from the behind the men’s hands and through their fingers at the points where they were clutching their legs. Mr Jones said he feared for his safety at that time and that he went from the bar as quickly as he could. Outside, he said that he felt bilious although he was unable to recall whether he actually became ill. He said that he was so shaken by what had happened that he went back to his hotel. The incident occurred late in the morning and he stayed in his hotel until mid-afternoon the following day, leaving on only one occasion to purchase food. He was then collected and returned to his base.
38. Mr Jones said that he did not recount the incident to anyone either in Vietnam or subsequently until he revealed the details to Dr Danesi. He said that, when he was in Vung Tau before the bar incident, he felt very safe. He said that was in contrast to the situation when he was in the ambushed convoy and realised that some confrontation was possible. In contrast, in Vung Tau, he had believed there could be no harm in going to a bar. He said that part of the fear that he felt after the knife incident with the servicemen was the fact that he clearly had not been as safe as he believed it would be.
39. Mr Jones said that he did not see a knife and was unaware of what implement may have been used to injure the two American soldiers. In his own mind, because of the damage that he saw, he believed that it must have been a knife. He believed that the two men had been “hamstrung” by which he meant that their hamstrings had been cut somewhere above the back of the knee.
40. Mr Jones said that, after seeing Dr Danesi, he had attended various courses to assist him in overcoming his psychiatric problems. He commenced a post traumatic stress disorder course which was scheduled to run on one day per week for a period of twelve weeks but he completed only seven sessions. This was because he was able to transfer to a “live-in” post traumatic stress disorder course which ran for four days per week for a period of six weeks. He completed that course and then went to the Palm Beach Clinic for further courses at night to assist him with anger management. He also attended another anger management course with the Vietnam Veterans’ Counselling Service in Brisbane which ran for three hours per day on one day a week for eight weeks. Additionally, he and his wife had attended another live-in course where they stayed with others for some five days and were able to discuss his problems.
41. Mr Jones also received counselling from Mr Pearman for a period of about eight months and he found these sessions very helpful in assisting him in learning relaxation techniques. He said that he had also seen another psychologist, Lorraine Nicholson, for a period of about eighteen months on the basis of one or two days per week.
42. Mr Jones said that he had been promoted whilst he was in Vietnam to the rank of corporal and that, after returning to Australia, he had been further promoted to the rank of sergeant. After leaving the army, Mr Jones worked as an electrician for a period but, after about four years, was employed by WD & HO Wills where he remained for some twenty-six years. In that time, he was promoted to a management position but was eventually made redundant after the company had been taken over by Rothmans. He said that he had been a loyal employee to the company and that he felt let down when he was made redundant in early 2001.
43. Mr Jones agreed, in cross-examination, that his initial claim for acceptance of a psychiatric condition by the respondent was for “stress” and that the reason given for a relationship to service was that his best mate had been killed in Vietnam. Mr Jones said that he was unable to give a reason why reference had not been made to the incident in the bar in Vung Tau and he confirmed that he had never told anyone about that incident until he saw Dr Danesi. He said that this was a few months after he made his claim.
44. In her evidence, Mrs Jones said that she and the veteran had been married before he went to Vietnam and described him as being a very different person after he returned to Australia. She described him as being very withdrawn and indifferent to the children in contrast to his approach before he served overseas. She also said that he was markedly changed in a social sense because he was no longer interested in being involved in social activities. She agreed that, after he had ceased work on the basis of his redundancy, she noticed a change in him. She thought it was because he had more time to think about things and, eventually, she suggested that he go and seek medical assistance.
45. Mr Pearman saw Mr Jones when he had been requested by Dr Danesi to administer a clinician administered post traumatic stress scale (CAPS) which had seventeen different sub-tests. Each related to the seventeen criteria which are to be demonstrated before a diagnosis of post traumatic stress disorder can be made. He concluded that the diagnosis was clear and unambiguous in Mr Jones’ case based upon the test results.
46. Mr Pearman said that Mr Jones had detailed to him the incident that occurred in the bar in Vung Tau and he said that it was significant that it occurred in an area where Mr Jones had previously felt safe. He noted that Mr Jones had not revealed details of the incident until he saw Dr Danesi and he said that this was not an uncommon thing where post traumatic stress disorder is found because of a tendency to avoid a recognition of it. Mr Pearman said that he had become aware of Dr Wainwright’s report shortly before the hearing. He said that he had read it but that it made no difference to his own conclusions.
47. Dr Danesi’s evidence has been referred to above on the issue of diagnosis. He confirmed that Mr Jones had experienced a depressive episode when he was given a redundancy from his longstanding position with WD & HO Wills. However, he said that this was now resolved but that the effects of his post traumatic stress disorder were continuing. He noted the absence of reference to the incident in the bar in Vung Tau over the years after Vietnam and until he saw the veteran himself. He said that this was not an unusual situation in the case of post traumatic stress disorder. He described this as part of the avoidance mechanism which runs with the condition.
48. Dr Danesi said that he felt that it was important for him to speak to Mrs Jones and that he did so in order to get a better understanding of the background to the development of Mr Jones’ condition. She had told him that Mr Jones did not talk about his experiences in Vietnam and, again, Dr Danesi said that this was a typical symptom of those who suffer from post traumatic stress disorder. Dr Danesi said that he was able to rely upon the information provided to him by Mrs Jones to support his conclusion that Mr Jones had suffered from post traumatic stress disorder for many years.
Submissions
49. Mr Harding submitted that the evidence of Mr Jones in this matter had been given consistently and that it was confirmed in the various accounts provided by him to the medical practitioners involved. He submitted that there was no attempt by Mr Jones to “gild the lily”. At no stage did he say that he had ever witnessed the actual attack and he did not indicate that he had ever seen the assailant’s weapon. He had consistently said that the incident had occurred suddenly and that, whilst he saw someone leaving the bar, his focus was on the two men on the floor who were writhing in agony, screaming and bleeding profusely. Mr Harding submitted that this was sufficient to meet the requirements of the Statement of Principles concerning experiencing a severe stressor.
50. Mr Kelly submitted that the accounts given by Mr Jones of the incident in the bar were not entirely consistent. He also submitted that the response of Mr Jones at the time was not one of a person who was suffering from intense fear or horror in that he had simply returned to his hotel and stayed there until mid-afternoon the following day, except that he left in order to purchase some food. He submitted that Mr Jones had not seen the knife or the extent of the injuries to the men or the assault itself and that, in that case, it was not a stressor which either objectively or subjectively met the requirements of the Statement of Principles. Mr Kelly submitted that the presence of post traumatic stress disorder was not consistent with Mr Jones’ service promotions to the rank of sergeant or with his sound post-service working history.
51. Mr Kelly also submitted that it was unlikely that, if the event had occurred, he would have kept it to himself for the years before he saw Dr Danesi and that he would not have referred to it on his claim form for acceptance of “stress”. He submitted that the real problems with Mr Jones were related to his redundancy from his longstanding employment with WD & HO Wills where he felt secure and enjoyed the work.
Consideration
§ Reasonableness of hypothesis
52. The meaning of the term “experiencing a severe stressor” is set out above. Both subjective and objective considerations are relevant in applying that definition: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAC 160 and Repatriation Commission v Stoddart [2003] FCAC 300. There is no requirement that there be an actual threat: see Stoddart at paragraph 30-31 and Woodward at 131-142. In Stoddart, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death of serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partial subjective connotation.”
53. The material before the Tribunal does point to Mr Jones having witnessed an event that involved actual injury of a serious nature. There is no suggestion of any presence of post traumatic stress disorder before Mr Jones went to Vietnam and, therefore, there is material which points to the satisfaction of factor 5(a) of experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. Therefore, I am of the opinion that the material before me raises a reasonable hypothesis of a relevant relationship between Mr Jones’ post traumatic stress disorder and his service. It follows that, through the application of step 4 of the procedure in Deledio’s case, that condition will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Is the condition war-caused?
54. I have noted the submission concerning the absence of reference to the incident in the bar in Mr Jones’ initial claim form. However, I also note that this was completed in April 2002 which was some months before he first saw Dr Danesi in July 2002. His explanation for this was that he was unable to tell anyone of the incident and the evidence of Dr Danesi and Mr Pearson was that this is a common characteristic of a person suffering from post traumatic stress disorder. The accounts provided by Mr Jones have been reasonably consistent over time. I have noted the evidence of Dr Wainwright in which he inferred that there may have been some coaching of Mr Jones to assist him with his claim. However, there is no evidence which supports that and, to the extent that Dr Wainwright’s evidence varies from that of Dr Danesi, I have preferred the latter.
55. I have considered the submissions of Mr Kelly about Mr Jones’ advancement in rank while in the army and his sound post-service employment record. However, there is no evidence that this would preclude the condition of post traumatic stress disorder. I accept the submission that Mr Jones experienced depressive symptoms after becoming redundant in 2001 but the evidence of Dr Danesi was that this was relatively short-lived and that the underlying condition in Mr Jones was post traumatic stress disorder.
56. Mr Jones’ situation before the incident in the bar was one where he felt that was in a position of relative security. Mr Pearman’s evidence was that this would compound the impact of the incident on a person in that situation. He did not witness the actual attack which inflicted the injuries on the two men in the bar. But he did witness the immediate aftermath. I accept his version of the event in the bar and that it caused him to fear for his own situation at the time. On the evidence before me, I cannot be satisfied beyond reasonable doubt that the factual basis relating to the incident described by Mr Jones in the bar in Vung Tau did not happen in the way that he described or in a manner which had an effect upon him sufficient to meet the definition of post traumatic stress disorder and the criteria in the Statement of Principles. Accordingly, I am not satisfied beyond a reasonable doubt that his post traumatic stress disorder is not war-caused.
Decision
57. The decision under review, insofar as it relates to post traumatic stress disorder, is set aside and the Tribunal substitutes for it a decision that Mr Jones’ post traumatic stress disorder is a war-caused disease within the meaning of section 9 of the Act: Mr Jones is entitled to receive pension for incapacity associated with that condition with effect from and including 9 February 2002, a date which is set in accordance with the terms of section 177 of the Act and agreed to by the parties. The matter of assessment of the rate of pension payable to Mr Jones is remitted to the Repatriation Commission.
58. The decision under review, insofar as it relates to depressive disorder, is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jenny Tran
Associate
Date/s of Hearing 2 June 2005
Date of Decision 21 June 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Woods Prince
For the Respondent Mr J Kelly, Departmental Advocate
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