Keleris and Repatriation Commission
[2004] AATA 976
•20 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 976
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1078
VETERANS' APPEALS DIVISION ) Re GEORGE KELERIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member McCabe Date20 September 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]........................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS LAW – pensions and benefits – veteran claims post traumatic stress disorder and alcohol abuse or dependence are related to service – diagnosis – whether veteran experienced intense fear, helplessness or horror in relation to incidents – whether respondent can disprove necessary facts beyond a reasonable doubt – whether veteran suffers any other compensable condition – decision affirmed
Repatriation Commission v Delidio (1998) 83 FCR 82
Benjamin v Repatriation Commission [2001] FCA 1879
Re Benjamin and Repatriation Commission [2004] AATA 738
Stoddart v Repatriation Commission [2003] FCA 334
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
20 September 2004 Senior Member McCabe Introduction
1. George Keleris is the applicant in these proceedings. He says his post traumatic stress disorder (PTSD) and alcohol abuse or dependence condition are related to his service in Vietnam. The Repatriation Commission disagreed, and its decision was affirmed by the Veterans’ Review Board (the VRB).
2. The matter has previously been heard by a differently constituted Tribunal. The Tribunal decided on that occasion to affirm the decision under review. The applicant appealed the decision to the Federal Court, which upheld the appeal and remitted the matter to the Tribunal for reconsideration.
3. I heard the matter in Townsville on 15 July 2004. The applicant was represented by Mr Honchin of counsel. The respondent was represented by Ms Bowskill of counsel. The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were before the Tribunal. The applicant also tendered his own statement and a file photograph of a Centurion Tank with soldiers riding on its exterior. The respondent submitted a report of Dr McCarthy dated 10 September 2002 and a statement of Colonel Church dated 25 November 2002. I also examined the transcript of the earlier hearing dated 27 November 2002.
4. Mr Keleris says he experienced five stressful events while on active service which are responsible for his conditions. Some important detail changed in the various accounts of the story. Below I recount the story as told on the day of the hearing of 15 July 2004. I will discuss the previous evidence given later on in this decision.
Incident #1: the tank incident
5. Mr Keleris says he was travelling with a convoy which was to set up artillery fire support. He was to form part of a protective cordon around that artillery setup. He says he was riding on a Centurion tank when the tank drove over a mine. The explosion blew the right track off the tank, immobilising it. When a recovery tank pulled the stricken tank backward, it hit another mine. Mr Keleris says he was worried he would not be able to hold himself together because he was not trained for dealing with incidents such as these. He says he felt afraid and helpless.
Incident #2: the weapons discharge
6. Mr Keleris says that later that same day, he became separated from his group. He says it was raining very heavily. He says he saw a figure some distance away (either 100 or 40 metres) waving at him. The figure appeared to be wearing black clothes. Mr Keleris says he fired his weapon at the figure believing him to be an enemy soldier. In cross examination he said the figure shot back at him. The incident was not reported to any authorities for fear of punishment (it was an unauthorised discharge).
Incident #3: the dog pit incident
7. Around the same time of the tank incident Mr Keleris experienced another stressful event. Arriving at the fire support base one night, he was told there was no room in the tent for him. A corporal directed him to sleep in a pit outside which was dug as a dog kennel. That night it rained heavily. He says the pit partially collapsed on him. He says he fell asleep, and was pulled out of the pit shortly after waking up. He says it was a frightening experience.
Incident #4: the body parts incident
8. Mr Keleris recalls riding “shotgun” in a vehicle doing a laundry run to a nearby town. The convoy drove through a small village. He noticed dogs dragging human body parts across the road. It later emerged a number of dead Viet Cong fighters had been buried nearby. He says at the time it was a bit of a joke among mates, but he remembered in later years and felt some revulsion about the incident.
Incident #5: the hanging bodies incident
9. Finally Mr Keleris recalls riding “shotgun” on a truck in a convoy through a rubber plantation. As the convoy drove through the plantation he says he saw about four or five dead bodies hanging from the veranda of a house. Apparently they were black-marketeers. In cross examination he remarked at the time it was quite funny or ironic. Later on he remembered the incident and felt bad about it.
The Law
10. The Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82 lays down the approach that must be followed in these cases. But before proceeding to the Delidio approach the Tribunal must be satisfied (to a standard of reasonable satisfaction) the applicant suffers from a medical condition.
Does Mr Keleris suffer from a medical condition?
11. The only relevant medical report before the Tribunal is the report of Dr Rigano. He says
I feel that he fulfils the criteria of a) substance abuse – alcohol, b) post traumatic stress disorder
12. One cannot make out a diagnosis of PTSD without establishing the existence of a severe stressor as defined in DSM-IV. For a severe stressor to exist, DSM-IV requires a person to have been exposed to:
a traumatic event in which 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
the person’s response involved intense fear, helplessness, or horror…
13. The applicant gave evidence describing his reactions to the stressors he identified. In particular I note his light-hearted reaction to the body parts incident and the hanging bodies incident.
14. When questioned about the body parts incident in cross examination, he said he thought it was a “bit of a joke” and “you didn’t know who was what with the Vietnamese people”. He says he failed to raise the matter in his original claim or tell the VRB about the incident because he just remembered it. He didn’t think it was relevant at the time. It was a “bit of a joke amongst mates”. By his own admission he did not react with anything approaching intense fear, helplessness or horror.
15. About the hanging bodies incident Mr Keleris thought:
At the time it was quite funny. I looked at the aspect that one day you’re a millionaire the next you’re a pauper.
When you discussed [the incident] it with your mates, it was in the context of the irony? Yes.
This reaction is far from intense fear, helplessness or horror.
16. I do not think the applicant can rely on the body parts incident or the hanging bodies incident to support a diagnosis of PTSD. The other three incidents are a different matter. If they occurred as he described they may support a diagnosis of PTSD.
17. For reasons I will explain, I think the respondent can disprove the applicant’s description of the other incidents beyond a reasonable doubt. Because a diagnosis of PTSD requires the applicant to have experienced a severe stressor, it follows a diagnosis of PTSD cannot properly be made out in this case. Even so, for the sake of completeness I will proceed to apply the steps laid out in Deledio as if the diagnosis of PTSD had been made out. The medical evidence did not suggest any other condition apart from alcohol abuse and dependence: the reasoning of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 and this Tribunal in Re Benjamin and Repatriation Commission [2004] AATA 738 are of no assistance in finding another compensable condition.
18. I am satisfied on the medical evidence before me that the applicant suffers from alcohol abuse or dependence condition.
Delidio steps
19. The first step in the Delidio process is to identify whether a hypothesis exists connecting the applicant’s injury or illness with his service. This test has a low threshold. I am satisfied a hypothesis exists connecting PTSD (if it were diagnosed) and alcohol abuse with the tank incident, the weapons discharge incident and the dog-pit incident.
20. The next stage of Delidio involves examining whether a statement of principles (SoP) exists dealing with the relevant conditions. Here the relevant SoPs are:
(a)For PTSD, Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999;
(b)For alcohol abuse or dependence, Instrument No. 76 of 1998.
21. At the third stage of Delidio the Tribunal must determine whether the applicant’s story “fits” the relevant SoP. Facts are not in issue at this stage. If the story does fit the SoP the applicant’s hypothesis is reasonable.
Is Mr Keleris’ hypothesis in relation to PTSD reasonable?
22. Instrument No. 3 of 1999 as amended by 54 of 1999 relevantly says:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder…with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
23. The key term is defined later in the instrument:
“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 stressors include:
(i) threat of serious injury or death;
(ii) engagement with the enemy;
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
24. I think the weapons discharge incident, in which Mr Keleris says he shot at another soldier who then shot back at him, qualifies as a severe stressor. It can be likened to engagement with the enemy.
25. Does the dog pit incident qualify as a severe stressor? That depends on which version of the applicant’s story I attempt to “fit” into the SoP. I will proceed on the basis of the story told by the veteran on the day of the hearing. On 15 July 2004 Mr Keleris said he entered the dog pit at 2.00am. He fell asleep. He woke up at about 6.00am, and found he could not escape the pit. As I understood his story, very little dirt had actually collapsed onto him. Rather it had collapsed around the entrance to the pit, making it impossible to exit. Someone discovered him “shortly after” he woke, and retrieved him. He was only “trapped” for a short while. I stress I am not making a finding of fact, but merely repeating the story as told by the veteran. I do not think this incident satisfies the definition of “severe stressor”.
26. The tank incident, even as described by Mr Keleris, is not of sufficient magnitude to qualify as a severe stressor. He says he was sitting on top of a centurion tank when two mines exploded. I note a centurion tank weighs about 50 tonnes. The mine explosions were sufficient merely to damage the track of the tank. No one was injured in the explosions. The track was soon replaced and the tank was operational. An experience of this nature is not of sufficient intensity to qualify as a severe stressor. Even if the incident evoked in Mr Keleris the reaction required by the SoP, I do not think that the tank incident, when judged objectively from the point of view of a reasonable person in the position of and with the knowledge of Mr Keleris, was capable of and did convey the risk of death or serious injury: Stoddart v Repatriation Commission [2003] FCA 334.
Can the Respondent disprove a necessary element of Mr Keleris’ Story?
27. Section 120 of the Act says I am bound to find the veteran’s hypothesis reasonable unless the respondent can disprove a necessary element of the applicant’s story or prove an inconsistent fact beyond a reasonable doubt.
28. The respondent attacked the credibility of the applicant. It says the five incidents never occurred, or if they did, they did not occur in the way described by the applicant. I agree. Mr Keleris has changed his story on a number of occasions. He is an unreliable witness. The evidence he gave before the Tribunal on this occasion must be treated with caution as a result. Below I summarise the major inconsistencies in the evidence given by Mr Keleris at various stages of the appeal process.
29. Inconsistencies – dog pit incident: In his original claim for review he said he suffers “nerves” because “I was buried for 1.5 days” (T4 f10). Before Dr Rigano he said he was “buried overnight in a gunpit” (T4 f15). Before Deputy President Muller on 27 November 2002 Mr Keleris said he had entered the dog pit just after dark and went to sleep. Some dirt collapsed on the entrance, making it impossible to exit. Before the Tribunal on 15 July 2004 he said he had entered the dog pit at about 2.00am. He fell asleep. He woke up at about 6.00am, and was rescued a short while later. Mr Keleris’ claim has shrunk from 1.5 days to under 4 hours - and he was asleep for most of that time. His description of being buried in the dog pit became being trapped in a dog pit by an amount of fallen dirt at one end. The amount of dirt was such that he could still tell it was daylight.
30. Inconsistencies – weapons discharge incident: Mr Keleris told Dr Rigano he “accidentally shot at a fellow soldier”. In his statement he says
I looked up about 100 or so metres in front of me and saw movement, dark clothes and people moving stealthily... I thought that the people in front of me were VC so I took aim at one of the moving people and fired a shot.
Mr Keleris does not mention the incident in his original application. Before Deputy President Muller he said:
I happened to look down in front of me – might have been 100 yards or so away – and I seen movement and a flash of white teeth or something white in dark clothes moving and I just took a shot at it but I missed…I went down and I couldn’t apologise enough because personnel were concerned.
Do you know who it was that you shot at?---To this day I’m pretty sure it was Private Warden…We had – me and him had quite a good conversation about it.
31. Before the Tribunal on 15 July 2004 he said he had seen a dark figure about 60 metres away. He shot at the figure. He then said the figure shot back at him. He says he discovered later the man was Bob Cairns. The inconsistencies in this story are glaring. Leaving aside the different distances mentioned, Mr Keleris has drastically changed his story in that he now mentions for the first time that the figure shot back at him. Also the identity of the figure has changed from Private Warden to Bob Cairns. This is made all the more unbelievable by Mr Keleris’ statement before DP Muller that he had had “quite a good conversation” with Private Warden about the incident.
32. It is also worth noting Mr Keleris never mentioned the body parts incident nor the hanging bodies incident to Dr Rigano. Nor did he raise them in his original claim. The incidents did not emerge until Mr Keleris made his statement in July 2002. I note he made his original claim in July 1997.
33. The respondent then led positive evidence that conflicts with Mr Keleris’ story. Lieutenant Colonel Mayhew (the commanding officer of the applicant’s section at the time of the alleged incidents) said each of the contentions are “pure fantasy” (f50 T4). He said at no stage would a butcher have been sent on combat operations with an infantry section. He said he would have known if any of his men were used in a combat role. He is sure they never were.
34. Colonel Church (former commanding officer of 2RAR) was also consulted in the preparation of the historical reports (f55-57 T4). He said he could not believe Mr Keleris would have been deployed to any Fire Support Base (i.e. the scene of the dog pit incident). In summary Colonel Church says the applicant’s contentions “all sound like a bit of a fairy story”.
35. Bushell v Repatriation Commission (1992) 175 CLR 408 says:
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making (the) determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.
36. I am satisfied beyond a reasonable doubt that I cannot accept the raised facts because of the unreliability of the material claimed to support them (i.e. the oral evidence of Mr Keleris), and because of the superior reliability of the other material before me. The events relied upon by Mr Keleris did not occur as he described them, if they occurred at all.
37. Given my conclusion that the applicant does not suffer from PTSD because he did not experience any severe stressors, it follows he cannot succeed in his claim in respect of alcohol abuse or dependence either.
Conclusion
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: .....................................................................................
Associate: Thomas RitchieDate/s of Hearing: 15 July 2004
Date of Decision: 20 September 2004
The applicant was represented by Mr Honchin of counsel.
The respondent was represented by Ms Bowskill of counsel.
0
6
0