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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kibble and Repatriation Commission

Details

AGLC: Kibble and Repatriation Commission [2002] AATA 770
Case: [2002] AATA 770
Decision Date: 6 September 2002

CaseChat Overview and Summary

The case involves Mr Kibble, who sought a pension under the Veterans' Entitlements Act 1986 for a psychiatric condition, specifically post-traumatic stress disorder (PTSD), which he claims was caused by his service in Vietnam. The Repatriation Commission contested the claim, leading to a hearing before the Administrative Appeals Tribunal. The central legal issues were whether the condition was war-caused and whether Mr Kibble had experienced a "severe stressor" during his service that could reasonably be connected to his PTSD. The case hinged on establishing a reasonable hypothesis linking Mr Kibble’s PTSD to his operational service, and whether this hypothesis could be substantiated by the evidence presented.

The Tribunal reviewed the evidence and applied the framework established in Repatriation Commission v Deledio (1998) 49 ALD 193. The Tribunal first determined that the material presented did raise a hypothesis connecting Mr Kibble’s PTSD with his service. Next, the Tribunal confirmed the existence of a relevant Statement of Principles (SoP) determined by the Repatriation Medical Authority. The Tribunal then assessed whether the hypothesis fit the template provided by the SoP, finding that the hypothesis was reasonable as it contained factors consistent with the SoP requirements. Finally, the Tribunal concluded that it was not satisfied beyond reasonable doubt that Mr Kibble's incapacity did not arise from a war-caused injury. This led to a determination that Mr Kibble's claim for a pension should succeed.

The Tribunal found that the applicant’s PTSD was connected to his service in Vietnam, and granted his claim for a war-caused psychiatric pension. The decision emphasised the need for the hypothesis to be supported by the SoP and consistent with the evidence presented. The Tribunal's reasoning underscored the importance of a structured approach in evaluating claims under the Veterans' Entitlements Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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).