Kibble and Repatriation Commission - [2002] AATA 770

DECISION AND REASONS FOR DECISION [2002] AATA 770

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/557

VETERANS APPEALS DIVISION        )
           Re      SIDNEY KIBBLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date6 September 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ...................(Sgd)......................
  Mr IR Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – pension – post-traumatic stress disorder – whether condition is war-caused – whether applicant has suffered a "severe stressor" – whether a reasonable hypothesis can be raised connecting the condition with the applicant's operational service

Veterans' Entitlements Act 1986 ss 9(1), 119, 120, 120A

Repatriation Commission v Deledio (1998) 49 ALD 193
Re Mulvany and Repatriation Commission [2000] AATA 535
Re Crange and Repatriation Commission [2000] AATA 1119

REASONS FOR DECISION

6 September 2002 Mr I R Way, Member

This is an application by Sidney Kibble for review of that part of a decision of the Veterans' Review Board ("VRB") dated 29 May 2001, which affirmed a decision of the respondent dated 5 January 2000, which in effect, refused the applicant's disability pension claim for PTSD.
The Tribunal had before it the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documentary evidence:

Exhibit A1 Statements of Win Fowles dated 7.4.02 and 31.5.99
Exhibit A2 Statement of Alan Hendy
Exhibit A3 Statement of Sidney Kibble – 19 November 2001 – Employment
Exhibit A4 Statement of Sidney Kibble – 19 November 2001
Exhibit R1 Report of Writeway Research Service - 22 February 2002 (Tilbrook)
Exhibit R2 Report of Writeway Research Service - 29 May 2002 (Tilbrook)

Oral evidence was given by the applicant, Mr A Hendy, Mr J Tilbrook, Mr I Laurie and Mr W Fowles. Evidence was given by telephone by Dr J Hargreaves.
The applicant was born on 14 March 1948 and served in the Australian Regular Army from 28 January 1969 to 27 January 1971. He rendered operational service in South Vietnam from 15 October 1969 to 15 October 1970.
The applicant has the following conditions accepted as service related:

Allergic rhinitis and sinusitis
Bronchial asthma
Bilateral tinnitus

The following condition has not been accepted as service related:

PTSD (the subject of this appeal)

The issue in this matter is whether the applicant's PTSD is war-caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act").
The applicant says he suffers from war-caused PTSD. The hypothesis put forward by the applicant is that he experienced a severe stressor when threatened by local Vietnamese "cowboys" and that as a result of this incident he now suffers from PTSD.
Legislative Framework
The relevant provisions of the Act are as follows:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…"

The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
"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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)     that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)     that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)   This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)     a Statement of Principles determined under subsection 196B(2) or (11); or
      (b)     a determination of the Commission under subsection 180A(2);
      that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)     the kind of injury suffered by the person; or
      (b)     the kind of disease contracted by the person; or
      (c)     the kind of death met by the person;
      as the case may be."

Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and s 196B sets out the functions of the RMA. Section 196B(2) provides:
"196B Functions of Authority
…
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."

The RMA has pursuant to s 196B(2) of the Act determined a SoP in respect of PTSD. It is common ground between the parties and the Tribunal accepts that the relevant SoP in this matter is Instrument No 3 of 1999 (as amended by No 54 of 1999).
The SoP relevantly provides:
"Basis for determining the factors
3.        The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.        Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.        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 or death from 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; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person's post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
…
'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 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;…"
Section 119 relevantly provides as follows:
"119     Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
          (a)       a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

Evidence for the Applicant

The applicant served as a driver with HQ 5 Coy RAASC in South Vietnam, part of his duties during the last six months of his tour being the daily delivery and pick up of unit laundry from an off-base contracted local laundry. He said the task usually took him 10-15 minutes. He referred to a one-off incident while doing this task where he was threatened by a group of "cowboys".
In his written evidence he said:
"On this particular day I was detailed to drop laundry off to a Monastery for the items to be washed.
As I came through the gates of the Monastery I saw up to twelve youths known to the Australian Forces as 'cowboys' massed around the front door of the area I was to drop off the laundry items.
I wish to say without hesitation that I had a sinking feeling in my stomach at the sight of these people, as they had a very BAD reputation for not only bashing Australian Soldiers for their money and personal items, but on a couple occasions killing them. So I firmly believed that my day was coming for a hiding or even worse.
I proceeded to the front of the house where I was to drop off the laundry, I stopped the vehicle and got out with my sub machine gun (F1) in my hands, I also decided to keep the vehicle engine running. I was at this stage very scared, and felt that I was really in a very dangerous situation.
On getting out of the vehicle, they started to move towards me in what I believed was an aggressive move to attack me. I cocked my weapon as I had decided to fire in self defence because of the emminient (sic) threat of very severe injury or even death.
I looked at these 'cowboys' to see whether they were armed as all reports from other Australian Soldiers and my own visual experience (couple of my comrades were beaten up and robbed in Vung Tau) I was also aware that they carried concealed weapons and were very experienced in martial arts.
As I got out of the vehicle they started to move forward towards in what I believed was an aggressive move to attack me, I shouted with as much authority as I could muster, even though I felt sick in the stomach, and to put it mildly 'shit scared' to get back from my immediate area where they were in my personal space.
To me, this was more than a confrontation as I felt that they were going to attack at any minute and produce their weapons to injure me, and if they got close to me I was definitely in a very severe life threating (sic) situation, this caused me great angst then and to this day. I have been forced to see a Psychatrist (sic) to deaden the pain of this incident.
I must also point out that I was the only Australian there and had no back up at all and could not even make an effort to get to the door of the Monastery for protection. I felt that I was helpless and exposed to injury and may be death. This situation was real and has caused me nightmares and guilt feelings ever since.
I then decided to dump the washing and try to escape from this area as quickly as possible, with that in mind I threw the washing on in their direction and towards the doorway and once again swept the area with my weapon to try to convince them that if they did attack they would be shot.
I then got in the vehicle and with now near breaking point and with my whole body sweating and shivering from fear I drove out of there very very fast."

He told the Tribunal he was alone at the time of the incident and that it was not unusual for there to be no "shotgun" person on local tasks during daylight hours. He said the whole incident took only one or two minutes.
He described the laundry as an orphanage run by Catholic nuns located on the main road from Vung Tau to the US Army Airbase. It was his evidence that he discussed the incident with one or two mates but did not report the matter in any formal sense and despite hating the thought of going back to the laundry, nevertheless he did so for the remainder of his tour and did not ask for a "shotgun" rider.
In cross-examination the applicant said that an incident such as the "cowboy incident" had never occurred before nor did it occur again. When asked why he continued to make the laundry drop when, on his own evidence, he thought something was wrong, he said he was a soldier trained to kill and to do his duty and he did what he had to do.
He said he had seen "cowboys" or "hoodlums" previously in Vung Tau practising martial arts and carrying concealed weapons. However, in the incident at the laundry he had not seen any of the group carrying weapons, no shots had been fired nor had there been any physical contact or verbal attack.
In answer to a question from the Tribunal about any other stressful incidents while he was in Vietnam, the applicant recounted how his unit billet line was some seventy metres from the 1 Australian Logistics Support Group (1 ALSG) hospital dust-off pad and that he (and others) regularly would be woken at night because of Casevacs which he would watch. He said he found these occurrences particularly stressful, seeing wounded and dead soldiers taken off helicopters and helicopters having to be "hosed out". The applicant clearly showed emotional disturbance in recalling these events and said these experiences still "haunt me today". He said he had raised this matter with Dr Hargreaves.
The Tribunal notes Dr Hargreaves, when asked by telephone what stressors the applicant had raised with him, did not recall, after consulting his notes, that the applicant had raised any concerns about witnessing casualty evacuations. Dr Hargreaves said that the only stressors apart from the "cowboy incident" that he had recorded in taking a history from the applicant were related to a rocket attack about one mile away from the 1 ALSG base; the applicant having two of his acquaintances killed in Vietnam; trips the applicant had to undertake in taking radar operators to "VC hill" some 15-20 kilometres from the 1 ALSG base when, although there were no ambushes, he subsequently saw holes in his vehicle which he thought could have been a result of enemy fire; and being a driver transporting troops involved in setting up a cordon during a search and destroy mission.
Mr Hendy, served in South Vietnam from April 1967 to March 1968 based mainly a Vung Tau. He said he believed the "cowboys" were a threat to Australian soldiers and recounted an unreported personal experience of confrontation with a group of Vietnamese one night when knives were drawn and some of the Vietnamese had been injured (one he believes fatally). He said that problems with such groups also happened during the day and he was aware of "some incidents". When pressed he said that "the incidents" during the day that he referred to were as a result of provocation by Australian troops whilst on leave and in civilian clothes. In his written statement dated 29 November 2001 (Exhibit A2) Mr Hendy provided the following extract from a psychological report:
"On one occasion whilst on leave in Vung Tau, somewhere near what was known as the 'officers club' Mr Hendy and a Dave Bancroft became involved in a skirmish with at least six locals who had knives and one of the Vietnamese was fatally injured."

and Mr Hendy stated:

"The local Vietnamese who confronted myself and Dave Bancroft were known as cowboys, they were always seen in groups and would not hesitate to cause bodily damage to any person if they had the advantage in numbers."

Mr Fowles served in Vietnam as a transport platoon officer in 5 Coy RAASC in Vietnam during the period February–November 1970. In his written report dated 31 May 1999 (Exhibit A1) he described "cowboys" as common criminals who were principally stealing saleable cargo (such as beer, food and clothing) which could be disposed of easily on the black market. Mr Fowles said:
"Cowboy activities did not concern me greatly during our daylight operations even though the thieves were not adverse to using hand guns or knives if the opportunity presented itself."

When questioned during oral evidence he said he believed the "cowboys" carried hand guns and/or knives based on his discussions with one of his Lance Corporals who had been assaulted one evening while off duty and while breaking curfew; and from discussions with a Civil Affairs Officer who had had a run in with "cowboys". When pressed on this point he said the CA Officer said he had drawn his 9mm pistol, but not fired it, to get rid of "cowboys" he had inadvertently interrupted while they were attempting to break into a moving vehicle and that he (Mr Fowles) had assumed that the "cowboys" were carrying weapons such as knives and guns. Mr Fowles said it was not unusual for vehicles travelling locally in Vung Tau during the day to be manned by a single driver.
Evidence for the Respondent

Mr Tilbrook, a military researcher, explained to the Tribunal the research he had carried out on the "cowboy incident" (Exhibits R1 and R2).
He said his research had located only one laundry used by Australian troops (under an ordinance corps standing contract) at a location different to that described by the applicant.
The main thrust of Mr Tilbrook's report related to the threat posed by young "cowboys" to Australian troops in the Vung Tau area. Mr Tilbrook was unable to find any evidence of Australian troop fatalities as a result of activities of "cowboys". The Tribunal notes that the official reports cited by Mr Tilbrook clearly put to rest any contention that Sergeant Hall of A Battery 12th Field Regiment or Major Slater died as a result of "cowboy operations" (as referred to for the applicant in the T documents).
In his statement (Exhibit R1) Mr Tilbrook said:
"The Researcher served as a SNCO in Vietnam in 1967/68, and like most Australian soldiers visiting the VUNG TAU township or its environs on local leave there were encounters or meetings with small groups of 'Cowboys', however, from his personal experience in VUNG TAU the description of the threat posed by the young 'Cowboys'
as now described by Mr Sidney Kibble (and supported by Mr Alan Hendy and Mr Graham McMaster in References E and F) seems to be much larger than life."

The Tribunal notes that Mr Tilbrook did not serve in Vietnam at the same time as the applicant.

The Tribunal also notes that Mr Tilbrook consulted with the applicant's OC in Vietnam and examined relevant official records and concluded that he could not find any direct evidence to substantiate the applicant's hypothesis.
Mr Laurie served in Vietnam for two periods, one period from October 1969 to September 1970, being at the same time the applicant served in the South Vietnam. Mr Laurie provided two written reports (attachments to Exhibit R1 and Exhibit R2).
He outlined the nature and extent of his service in Vung Tau as a Military Police Patrol supervisor (Section Sergeant) and an SIB Investigator. He said that his work was done within the 1 ALSG area itself and within the town area requiring liaison with Vietnamese police. He stated:
"Apart from my own experience and observations my knowledge was supplemented by information from a Vietnamese girl who worked in Vung Tau and with whom I was keeping company" (now his wife).

With respect to the operations of "cowboys" in the Vung Tau area he stated:

"'Cowboys' were a visible presence particularly near the town bars and front beach areas throughout each evening and til shortly after Australian curfew hour when the bars closed. I never saw them about during the hours of civilian curfew, 2400 to 0600 hours. Their usual business did not impinge on Australian soldiers and their paths seldom crossed except when an Australian was alone and in a remote part of town, where he was easy prey. Robbery was almost always the motive for assault by groups of at least two or three."

In his oral evidence he said that in his experience "cowboys" were not very visible during the day because of the local Vietnamese police and that it was most unlikely they would carry knives or other weapons when they might be caught by the local police. He emphasised that the objective of the "cowboys" was to "make a quid" and he was unaware of any "cowboys" activities that he would describe as life threatening.
In cross-examination he said there was some circumstances when a driver would be given a free running pass and would therefore travel without a "shotgun". He said that there were very few reports to the Military Police of "cowboy incidents".
Submissions
Mr Richards, representing the applicant, submitted that the applicant clearly suffered from PTSD and that this condition arose out of a severe stressor related to the applicant's operational service, namely engaging with Vietnamese who could have been the enemy or in any event were a danger to our forces in Vietnam, resulting in the applicant experiencing a very severe life threatening situation. The situation referred to was the "cowboys incident" where it was submitted that a group of Vietnamese youths dressed in black pyjamas, thongs and cowboy hats moved towards the applicant, at close range, and in a semi-circle while he alone and without backup, was attempting to deliver unit laundry to a local laundry, such that the applicant feared for his life. It was contended that the applicant, at this time, showed fear, was sweating and "shit scared", believing that his life and personal integrity were at risk. In support of this it was submitted that the evidence before the Tribunal showed that "cowboys" on many occasions had caused serious problems for Australian forces in Vietnam, involving the use of force and weapons.
Mr Williams representing the respondent accepted the medical evidence before the Tribunal that the applicant suffered from PTSD, however it was submitted that the applicant's PTSD was not war-caused in that he did not satisfy the requirements of the relevant SoP (No 3 of 1999 as amended by No 54 of 1999), namely the applicant did not experience a service related severe stressor within the meaning of that term as defined in the SoP. Mr Williams told the Tribunal that the respondent had some problems accepting the location of the laundry as described by the applicant, however if the applicant did encounter a group of local Vietnamese at a laundry as described by the applicant, this was a confrontation only, no weapons were used by the Vietnamese, the applicant returned the next day on the same task without backup and the matter went no further.
With respect to the threat posed by the "cowboys" it was submitted that the evidence before the Tribunal showed that there is very little by way of formal reports of serious incidents involving personal danger from "cowboys" and that any relevant reports relate to incidents after sunset.
With respect to other stressors raised by the applicant, it was submitted that there is no evidence to show that the applicant was in proximity to either of his two friends when they were killed in Vietnam. And that the witnessing of helicopter casevacuations at 1 ALSG hospital helipad had not been raised by the applicant at any time before the hearing, and as such no weight should be given to this as an initiating event with respect to the applicant's PTSD.
Consideration
In Repatriation Commission v Deledio (1998) 49 ALD 193, the Federal Court of Australia summarised the approach to be taken by the Tribunal in cases such as the present in which s120A of the Act applies:
"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 s196B(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 s196B(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 s120(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." (at 206)

In this case it is common ground that the applicant suffers from PTSD and on the material before it the Tribunal so finds.
After consideration of all the material before it, the Tribunal is satisfied that the material points to an hypothesis as contended by the applicant and as set out in paragraph 8 above.
As has already been indicated, there is no dispute between the parties and the Tribunal accepts that there is in force a relevant SoP determined by the RMA, namely Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999).
Turning then to the third step as set out in Deledio's case. For the applicant's hypothesis to be reasonable it must fit within the template of the SoP, and insofar as this case is concerned, the first question before the Tribunal is whether or not the applicant has experienced a severe stressor as defined, which is connected with the circumstances of his service in South Vietnam.
The crucial question in this case is whether the alleged "cowboy incident" falls within the definition of "experiencing a severe stressor" as defined in the SoP and as set out above in paragraph 13. In other words, did the alleged incident constitute "an event that involved actual or threatened death or serious injury or a threat to the applicant's physical integrity"?
The Tribunal is of the view that the applicant's subjective response to any event or events is not relevant within the terms of the definition. The definition requires an objective assessment of whether there were events, in fact, which involved actual or threatened death or serious injury or a threat to the applicant's physical integrity.
In this regard the Tribunal follows Re Mulvany and Repatriation Commission [2000] AATA 535, where the Tribunal in dealing with a similar case said:
"19.     ….In the Tribunal's opinion the following definitions in The Macquarie Dictionary are apposite:
'threat … 2. an indication of probable evil to come; something that gives indication of causing evil or harm.'
'threaten … 2. to be a menace or source of danger to … 4. to give an ominous indication of … 6. to indicate impending evil or mischief.'
'physical … 1. pertaining to the body; bodily…'.
'integrity … 2. the state of being whole, entire, or undiminished … 3. Sound, unimpaired, or perfect condition…'.
20.      In Re Budworth and Repatriation Commission[2000] AATA 127 the Tribunal (Deputy President BJ McMahon) quoted (at paragraphs 60 and 61) the diagnostic features and diagnostic criteria for PTSD stated in the Diagnostic and Statistical Manual of Mental Disorders (4th ed) ("DSM-IV") – from which the definition of the phrase 'experiencing a stressor' in … the SoP concerning PTSD is derived – and commented (at paragraph 62):
'… the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of 'intense fear, helplessness or horror'. (original emphasis)
…In this Tribunal's opinion Deputy President McMahon's view reflects an accurate understanding of the relevant diagnostic features and diagnostic criteria stated in DSM-IV on which the abovementioned definition of the phrase 'experiencing a stressor' is closely modelled.
…
22.      The phrase 'physical integrity' is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness. In the Tribunal's opinion, however, the connotation of that phrase, as appearing in the definition of 'experiencing a stressor' … concerning PTSD, is limited by the context in which it appears. That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury. Accordingly, the Tribunal is of the opinion that the phrase 'threat to … physical integrity' in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only."
The Tribunal is mindful that in the matter of Re Cranage and Repatriation Commission [2000] AATA 1119, Senior Member J Handley found that "experiencing a stressor" involved an objective rather than subjective interpretation. Furthermore, in comparing "experiencing a stressor" with "experiencing a severe stressor" he said:
"Indeed, there is much to suggest that the opportunity to connect PTSD with service, having regard to more recent Statements of Principles has become much more restricted and difficult to satisfy. (A more recent Statements of Principles concerning PTSD refers to 'experiencing a severe stressor)."
The applicant has stated in his written statement that at the time of the laundry incident he knew the "cowboys" had a very bad reputation for not only bashing Australian soldiers for their money and personal items, but on a couple of occasions killing them.
The Tribunal notes that the applicant, in describing the incident at the laundry, said that the "cowboys" did not produce any weapons that he could see, no shots were fired during the incident (which took only a minute or two), there was no physical contact between the applicant and the "cowboys", the "cowboys" made no verbal threats; that when threatened by the applicant with his personal weapon, the "cowboys" retired and that the applicant subsequently did not report the incident and continued to perform the daily task of dropping off laundry without any backup or further incident.
The Tribunal is mindful that Mr Laurie, who served in Vung Tau at the same time as the applicant and who, as a Military Policeman working and living in Vung Tau (with a Vietnamese lady) clearly demonstrated a detailed knowledge of the activities of "cowboys" in the Vung Tau area. The Tribunal notes his evidence about the "cowboys" not being visible during the day and it being most unlikely that they would be carrying weapons in daylight.
The evidence of Mr Hendy is that any criminal-type activities of "cowboys" was directed at Australian troops in civilian clothes either at night or when provoked by Australian troops. Mr Fowles' evidence is that "cowboy" activities did not concern him greatly during daylight operations even though thieves were not adverse to using hand guns or knives if the opportunity presented itself. In cross-examination it was clear that Mr Fowles had no direct experience to support the view he expressed about "cowboys" carrying guns.
With respect to the death of Australian soldiers as a result of "cowboy operations", there is no objective evidence to support such a contention. Indeed, the death referred to in the applicant's facts and contentions has clearly been officially investigated and it was found that there was no involvement of "cowboys".
At this stage of its consideration, the Tribunal makes no finding about the truth of the applicant's claim. On the basis of the claim as stated by the applicant, the Tribunal accepts that the applicant experienced a threatening confrontation with local Vietnamese during the "cowboy incident". However, following the interpretation of "experiencing a severe stressor" as set out above, and after careful consideration of all the material before it, the Tribunal has formed the view that the "cowboy incident" was an event that did not in fact involve threatened death or serious injury, within the meaning of the definition of "experiencing a severe stressor".
Furthermore, following the interpretation in respect of "a threat to the person's or another person's physical integrity" as set out above, the Tribunal is of the view that the "cowboy incident" as described by the applicant is an event that did not in fact involve a threat to the applicant's physical integrity. The Tribunal is satisfied that the evidence before it does not suggest that the "cowboy incident" involved impending or probable harm of an extreme kind to the applicant's bodily wholeness or soundness.
In arriving at the views expressed above, the Tribunal has also taken into account the consistent evidence of the witnesses before it that the Vietnam "cowboys' operations" were mainly directly towards theft of property; that physical attacks on Australian personnel were rare and confined mainly to soldiers who were off duty at night; that there is no record of Australian soldiers in uniform and on duty being physically attacked by "cowboys" during daylight hours.
With respect to other war-caused stressors which may have led to the applicant's PTSD, the Tribunal has considered the applicant's claim of being stressed as a result of witnessing helicopter casualty evacuation to the 1 ALSG Hospital. On his own evidence the applicant voluntarily chose to continue to watch such evacuations from some distance because he was "inquisitive". Such actions by the applicant do not constitute "experiencing a severe stressor" as defined in the SoP. Likewise, neither the advent of a rocket attack one mile away nor being involved in driver activities conveying troops to operations, constitutes "experiencing a severe stressor".
The Tribunal accordingly finds that Factor 5(a) of the relevant SoP concerning PTSD does not exist or is not satisfied, because the "cowboy incident" or any of the other war-related incidents referred to during the hearing did not involve the applicant "experiencing a severe stressor" within the meaning of that term in the SoP.
None of the other minimum factors referred to in the SoP being relevant, in this case it follows that the raised hypothesis connecting the applicant's PTSD with the circumstances of his operational service is not a reasonable one and the Tribunal so finds.
Accordingly, the Tribunal finds, pursuant to subsections 120(1) and 120(3) of the Act, the applicant's diagnosed condition of PTSD is not a war-caused injury or a war-caused disease within the meaning of s 9 of the Act. It follows that the Tribunal affirms the decision under review.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         Denise Burton
  Administrative Assistant
Date of Hearing  26 July 2002
Date of Decision  6 September 2002
For the Applicant  Mr B Richards, Advocacy for Veterans
For the Respondent                 Mr B Williams, Departmental Advocate