Law and Repatriation Commission
[2004] AATA 1341
•16 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1341
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/236
VETERANS' APPEALS DIVISION )
Re BARRY NORMAN LAW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date16 December 2004
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 alcohol dependence or abuse and substitutes its decision that those conditions are war-caused diseases, that pension for any incapacity associated with those diseases is payable to the applicant from and including 21 May 2001 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.
...................[Sgd].....................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service with Australian Army – diagnosis of psychiatric conditions – application of Statements of Principles – reasonable hypothesis of relevant relationship to service – clinical onset of psychiatric conditions – post traumatic stress disorder not clinically significant at relevant time for depressive disorder - decision on post traumatic stress disorder and alcohol dependence or abuse set aside - decision on depressive disorder affirmed.
Veterans’ Entitlements Act 1986 ss 5D, 6C, 6D, 7, 9, 14, 120, 120A, 177
Fogarty v Repatriation Commission (2003) AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193
Woodward v Repatriation Commission (2003) 37 AAR 424
Deledio v Repatriation Commission (1997) 47 ALD 261
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Stoddart (2003) 38 AAR 176; 77 ALD 67
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Lees v Repatriation Commission (2002) 74 ALD 68REASONS FOR DECISION
16 December 2004 Mr RG Kenny, Member Background
1. Barry Law (the applicant) served in the Australian Army as a national serviceman from 1 May 1968 until 30 April 1970. During that period, he was in South Vietnam from 23 April 1969 until 11 March 1970. Mr Law contends that he now suffers from psychiatric conditions in the form of post traumatic stress disorder, alcohol dependence or abuse and depressive disorder and he attributes the causation of those conditions to circumstances that arose during his service in South Vietnam.
2. Mr Law lodged a claim for acceptance of post traumatic stress disorder with the Repatriation Commission (the respondent) on 21 August 2001. The claim, made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), was rejected by a delegate of the respondent on 13 May 2002. The delegate determined that post traumatic stress disorder, depressive disorder and alcohol dependence or alcohol abuse were not related to Mr Law’s service. That decision was affirmed by the Veterans’ Review Board on 12 January 2004 and, on 31 March 2004, Mr Law sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Law was represented by Mr J Selfridge of Counsel and the respondent was represented by Mr J Kelly. The following material was tendered and taken into evidence:
Exhibit 1the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – T1 to T6);
Exhibit 2a medical report, dated 24 November 2004, by Dr Scott Jenkins, psychiatrist;
Exhibit 3a medical report, dated 21 July 2004, by Dr Peter Mulholland, psychiatrist;
Exhibit 4a medical report, dated 29 September 2004, by Dr Mulholland;
Exhibit 5a statement, dated 21 June 2004, by the applicant;
Exhibit 6a further statement, dated 21 June 2004, by the applicant;
Exhibit 7a statement, dated 4 March 2004, by Peter Rogers;
Exhibit 8a further statement, dated 5 March 2004, by Mr Rogers
Issues and Legislation
4. The psychiatric conditions noted above fall within the definition of “disease” as defined in section 5D of the Act. Mr Law’s claim is based on his contention that he suffers from these conditions and that they are war-caused. As to causation, subsection 9(1) of the Act reads:
“(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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
5. It is not disputed that Mr Law’s service in South Vietnam, as noted above, constitutes operational service in accordance with paragraph 6D(1)(b) of the Act or that it constitutes eligible war service in accordance with section 7 of the Act. The standard of proof applicable to the determination of entitlement claims for the type of service rendered by Mr Law is set out in subsection 120(1) of the Act which reads:
“(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.”
6. The operation of that provision is affected by the terms of subsection 120(3) of the Act and section 120A which read:
(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.
….
120AReasonableness 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;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(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.”
7. Those provisions are concerned with matters of causation and require consideration to be given to the Statements of Principles (SoPs) which have been published by the Repatriation Medical Authority (RMA). However, it is first necessary to consider the conditions from which Mr Law suffers and the second issue will then be whether any such condition is causally associated with his eligible war service. The standard of proof for determining diagnostic matters is provided for in subsection 120(4) of the Act and this requires such matters to be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
8. The following SoPs are relevant in Mr Law’s case:
§Post Traumatic Stress Disorder: Instrument No. 3 of 1999 (as amended by Instrument No. 54 of 1999);
§Alcohol Dependence or Abuse: Instrument No. 76 of 1998; and
§Depressive Disorder: Instrument No. 58 of 1998.
The Conditions to be Considered
9. Medical evidence in this matter was given by Dr Sharon Harding, psychiatrist, who treated Mr Law from November 2001 until the end of 2003; by Dr Scott Jenkins, psychiatrist, who has treated the applicant since March 2004; and by Dr Peter Mulholland, psychiatrist, who provided a report at the respondent’s request. Each of those practitioners diagnosed Mr Law as suffering from alcohol abuse or dependence and major depressive disorder and I am satisfied that the diagnostic criteria are met by Mr Law in respect of those conditions.
10. Dr Harding diagnosed post traumatic stress disorder. This opinion was not shared by Dr Mulholland for whom Mr Law’s clinical features were more consistent with the development of a depressive illness. In any event, Dr Mulholland said that there were problems on technical grounds with entering a diagnosis of post traumatic stress disorder in this matter. Dr Jenkins said he had accepted the previous diagnosis of post traumatic stress disorder which had been provided to him by Mr Law’s referring general practitioner who, in turn, was aware of that diagnosis from Mr Law’s involvement with Dr Harding.
11. The SoPs referred to above each provide a meaning for the particular condition to which each pertains. In each case, the SoP adopts the description of that condition as provided for in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Unlike the situation with alcohol abuse or dependence and with depressive disorder, the description of post traumatic stress disorder in clause 2 of the SoP for that condition 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.”
12. It is in regard to that component of the meaning of post traumatic stress disorder that the medical evidence differs. Three experiences of Mr Law were postulated by Mr Selfridge as being sufficient to meet that traumatic event requirement. The first of these was Mr Law’s experiencing of an occasion when he was passenger in a Sioux helicopter when it fell a distance of more than 2,000 feet in a procedure described as auto-rotation; the second was being in the helicopter when it was fired upon as it approached a fire support base; and the third was experiencing the sensation of being fired at whilst a passenger in the rear of a Land Rover travelling from Vung Tau to Nui Dat. Dr Harding said that each of these was a traumatic event and that the most significant of them was that involving the rapid loss of altitude in the helicopter. Dr Jenkins expressed doubt about whether or not the matters contended to be traumatic events were sufficient to meet the DSM-IV criterion A. However, he also said that he treated post traumatic stress disorder with depressive symptoms as a working diagnosis because his major focus was in the treatment of Mr Law rather than technical aspects of diagnosis. Dr Mulholland concluded that the experiences did not meet the traumatic event criterion.
13. 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 an SoP, even if the SoP 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 Law suffers from post traumatic stress disorder is to be assessed on the available medical evidence.
14. Dr Mulholland saw Mr Law for about 1½ hours. While that does not preclude the prospect of making a full and accurate diagnosis, it is significantly less than the involvement that Dr Harding had with Mr Law. This spanned two years while Dr Harding was his treating psychiatrist and I am satisfied, on the balance of probabilities, from the length and extent of his interaction with Mr Law that her evidence should be accepted on the matter of diagnosis of post traumatic stress disorder. It follows that the conditions which are to be considered in this matter are post traumatic stress disorder, alcohol dependence or abuse and depressive disorder.
Mr Law’s evidence
15. Mr Law was 23 years of age when he went to Vietnam. He was an Operator Keyboard and Cipher in 104 Signal Squadron at Nui Dat. His main role was preparing and receiving messages at the Task Force Signal Centre. For a period of several weeks, he and other soldiers performing the same work were required to travel to various fire support bases for the purposes of changing the encryption coding on their radio sets. This took only a few minutes and the task was shared amongst the men. Mr Law was required to complete this function on several occasions and each involved a flight in a Sioux helicopter from Nui Dat to a fire support base.
16. Mr Law described an event which occurred to him on the third occasion of such a flight. He was returning from a fire support base and was flying at the level of about 3,000 feet. Without warning and without notice from the pilot, the aircraft engine stopped and the aircraft began to spiral downwards. He was able to observe the rotors continuing to spin and could hear wind rushing past the falling helicopter. He did not speak to the pilot even though he was wearing a communications device and, after about one minute, the pilot restarted the motor and regained control. By then, they were very close to the ground. He said that he was terrified by the event but said that the pilot had treated it as “a great joke”. He said it was later described to him as a procedure called auto-rotation which is done for the purposes of enabling the aircraft to rapidly descend to avoid being an easy target for enemy fire. He continued to undertake flights to fire support bases and had no concerns in doing so and, on some occasions, the same pilot flew the helicopter. He did not experience the auto-rotation manoeuvre again.
17. Mr Law described a second incident that occurred whilst approaching a fire support base in a helicopter. The aircraft had been flying at a low level but had climbed on approaching the base in order to clear surrounding trees. The pilot engaged in a sudden manoeuvre and then advised Mr Law that the aircraft had been fired at. Mr Law did not hear the shooting and subsequent examination showed that the aircraft had not been hit. The pilot did not land at the base but hovered close to the ground and the pilot told Mr Law to get out. Mr Law said that he felt vulnerable because he did not have a rifle but only a pistol. He said he had never been trained in pistol use and said that he was not even aware if it were loaded. He agreed that he was surrounded at the fire support base by armed soldiers. Mr Law said that the helicopter flew away and he believed the pilot was looking for signs of the source of fire. Subsequently, the same helicopter collected him and returned him to Nui Dat. Mr Law said that he did not ask the pilot any more questions about the shooting incident. He said the incident made him realise how easily one could die in Vietnam.
18. A third incident was described by Mr Law and this involved a return trip from Vung Tau to Nui Dat. He was in the back of a Land Rover which was one of three vehicles attempting to catch up with a convoy. It was an open road with the occasional village on either side and, after passing through such a village, Mr Law said heard the “zing” of bullets in the air and then the sounds of three gunshots from the village behind them. He said that his reaction was to drop to the floor of the vehicle and that the reaction of the driver was to increase speed rapidly. He said that the “zing” of the bullet was recognisable and he believed that it was very close and estimated the distance as being some “2 to 3 feet” away from him. Eventually, the vehicles caught up with the convoy but no report was ever made of the shooting incident. He accepted that the road was frequently travelled by Australian personnel but he considered that it was not a priority to report the matter for the purposes of warning others.
19. Mr Law said that the first of the helicopter incidents occurred in about September or October 1969, that the second incident occurred about six weeks later and that the incident in the Land Rover occurred about six weeks after that.
20. Mr Law also made reference to his work history. He completed an apprenticeship as a plumber before his Army service and returned to that work with his original employer until 1972. He then moved to the Sunshine Coast where he carried on business as a plumber on his own behalf for another 15 years. He then was engaged in selling outdoor furniture and sold the business that he had developed in 1997. In 1995, he had invested in land at Maleny and, from 1997, constructed four cottages from which he managed a holiday rental business.
21. In relation to his alcohol consumption, Mr Law confirmed what he had stated in an alcohol questionnaire which he completed on 7 August 2001 that he commenced to drink alcohol on enlistment into the Army. He also confirmed that he drank two cans of beer per day in Vietnam although he would drink as much as he could when he was on leave in Vung Tau. He confirmed that he had been on leave in Vung Tau on some six occasions prior to the first of the helicopter incidents noted above.
22. Mr Law confirmed that, in his alcohol questionnaire, he had referred to peer pressure and the need to relieve stress associated with reading signals as being triggering mechanisms for his alcohol consumption. He said that he was not able to explain why he made no reference to any of the events described above as being associated with this.
23. Mr Law said that, over the years, he had lost contact with his sisters and brother and with his children. He felt that this was, in part, due to his inability to control his temper but he also conceded that there had been problems with his children associated with debts and legal action.
Evidence of Jenny Sheahaden
24. Ms Sheahaden is the applicant’s partner of 22 years. She said that there had been major changes in him over the years and, in particular, since the early 1990s. She said that he had become a “grumpy old man” during that time and she said that she was aware that he had been undergoing psychiatric treatment since 2001. She also said that his relationship with his family had broken down.
Evidence of Geoff Sanders
25. Evidence was given by Geoff Sanders who works as a Returned and Services League of Australia (RSL) advocate and who served with Mr Law in Vietnam. He said that he had also experienced an occasion when a pilot went through an auto-rotation movement, with no warning. He said that this caused him to feel very scared.
26. Mr Sanders was also able to detail an incident similar to that referred to by Mr Law when he was in the Land Rover. He, too, was in a Land Rover on the way to Vung Tau when he heard a “sonic crack” and then the report of a weapon and realised he had been fired upon. He said there was only one shot and he took evasive action by ducking and the driver accelerated rapidly away. He said that the matter was not reported as this was standard procedure at the time.
Evidence of Peter Rogers
27. Evidence was given by Peter Rogers who had served in Vietnam as a pilot of a Sioux helicopter. He said that the auto-rotation manoeuvre was carried out for the purpose of achieving rapid transition from altitudes of, say, 3,000 feet to very low altitudes as quickly as possible because it was in between those ranges that the helicopter was vulnerable to enemy fire. He said that the manoeuvre was usually conducted with the engine cut to idle but that it was sometimes done with the engine switched off. He said it was usual for the pilot to warn the passenger and that, without a warning, it would be an alarming experience.
Evidence of Grace Edwards
28. In evidence was a letter written by the applicant’s sister, Grace Edwards, where she described the changes in him in the years after returning from Vietnam. She said that, before he joined the Army, he was a “happy young man who did not drink or smoke excessively”. She said that, after he returned from Vietnam, he was still not drinking or smoking excessively at that stage but, as time went on, he seemed to be getting worse. She said that he was drinking more when she would visit him in Maroochydore and he started to become very argumentative. She said that, eventually, she stopped visiting him.
Submissions
29. Mr Selfridge submitted that each of the helicopter events and the event involving being shot at in the Land Rover were sufficient to satisfy the requirements of the SoP in respect of post traumatic stress disorder. He also submitted that the other psychiatric conditions of alcohol dependence or abuse and depressive disorder developed as a result of and were causally associated with post traumatic stress disorder. Mr Selfridge submitted that, with each event, Mr Law believed that he was in real danger and that he had feared for his safety. Mr Selfridge referred to the lack of reporting by Mr Law of the events that occurred to him and submitted that this was not unusual in circumstances where no injuries were sustained and where Australian soldiers were not involved in the return of enemy fire.
30. Mr Kelly submitted that none of the three events could be sufficient to establish a causal association with depressive disorder or alcohol dependence or abuse because the clinical onset of these conditions had occurred more than two years after the completion of Mr Law’s Vietnam service. He submitted that the only relationship between these conditions and service could be through the mechanism of post traumatic stress disorder. However, he also submitted that none of the events described were sufficient to meet the relevant factors in the Statements of Principles and, therefore, no reasonable hypothesis of a relevant relationship with post traumatic stress disorder had been raised.
31. In respect of the auto-rotation manoeuvre, Mr Kelly submitted that this had occurred without actual danger to Mr Law as was indicated by the pilot treating it as a joke when it was over. He also referred to subsequent actions by the applicant as indicating that the effects upon him may not have been as great as he claimed. In particular, he had continued in helicopter flights with various pilots, including the one who had subjected him to the auto-rotation, and did so with no apparent concerns.
32. In relation to the occasion when the helicopter was fired at, he submitted that it was significant that Mr Law was not aware of it until after it had occurred and was only made aware of it after being told by the pilot. He submitted that nothing turned on the nature of the weaponry that Mr Law carried i.e a pistol because, when he was off-loaded from the helicopter, he was in the relatively secure environment of the fire support base.
33. For the Land Rover incident, Mr Kelly referred to inconsistent evidence given by the applicant in relation to the number of shots fired. Whilst he told the Tribunal that there were three shots, he referred to his evidence before the Veterans’ Review Board where one shot had been indicated. He also submitted that it was unlikely that an incident such as being shot at on the well-used road would not be reported to authorities.
Mode of Applying the Legislation – The Deledio Steps
34. Where operational service has been rendered, a four step procedure for determining causation was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92. The first of these requires that there be material which points to an hypothesis connecting the claimed condition with service. In this case, the contentions of Mr Selfridge concerning each of the two helicopter incidents and the incident in the Land Rover meet that requirement. Accordingly, there are three hypotheses to be considered.
35. The second of the four Deledio steps requires identification of the relevant SoPs and these are noted above in relation to post traumatic stress disorder, alcohol dependence or abuse and depressive disorder.
36. The third Deledio step requires a consideration of whether any of the hypotheses raised is a reasonable one and this will be so if any of them fit the template provided by any relevant factor and associated definition in those respective SoPs. This step does not involve making findings of fact on the evidence: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 and Fogerty v Repatriation Commission (2003) 37 AAR 363 at 374. The SoP factors and definitions read:
Post Traumatic Stress Disorder
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”.
Alcohol Dependence or Abuse
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; 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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;”
Depressive Disorder
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or”
"clinically significant" means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner
"psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
37. In the event that any of the hypotheses is reasonable, it will be necessary to consider the fourth of the Deledio steps. This requires an analysis of the factual basis on which each hypothesis rests and will require a finding that the claimed condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Deledio Step 3: Reasonableness of Hypotheses
38. An analysis of the experiencing of a severe psychosocial stressor or a severe stressor involve a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission (2003) 37 AAR 424 and Repatriation Commission v Stoddart (2003) 38 AAR 176; 77 ALD 67. Also, it is not a requirement that there be an actual threat: see Stoddart at 183 and Woodward at 447-9. In Stoddart (at 183), the Full Federal Court adopted the following statement from Woodward’s case:
“The definition extended to a person experiencing or being confronted with an event involving threat of death or 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 partially subjective connotation.”
39. The material before the Tribunal relating to the auto-rotation incident points to an absence of actual threat to Mr Law and, rather, to a deliberate manoeuvre engaged in by the pilot to lower altitude, albeit in a dramatic manner. However, judged objectively from the point of view of a reasonable person in the position of a passenger with no forewarning of the manoeuvre, which was the evidence of Mr Law, it was capable of conveying the risk of at least serious injury to that passenger. The material also points to a reaction from Mr Law which was consistent with that objective perception of the threat. This points to the satisfaction of the SoP factor which means that the hypothesis relating to the auto-rotation experience is reasonable. The material in relation to the Land Rover incident also points to the satisfaction of the definitions of severe stressor and severe psychosocial stressor being experienced by Mr Law. However, the material in respect of the shots fired at the helicopter and being dropped off at the fire support base does not point to the requirements of a severe stressor or a severe psychosocial stressor. Mr Law’s evidence was that he was not aware of the shots until advised later and his evidence was that he reacted merely with a feeling of vulnerability and a realisation of how easily life could be lost in Vietnam.
40. For alcohol dependence or abuse and for depressive disorder, two factors have been identified in the SoP. The first of those factors requires, for the hypothesis to be reasonable, that the material before the Tribunal point to a clinical onset within two years of the stressor. The evidence does not point to that element of the factor being met for either condition. The term “clinical onset” has not been defined by the RMA but the requirement will be met if an applicant describes symptoms to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Lees and Repatriation Commission (2002) 74 ALD 68.
41. Of the medical evidence before the Tribunal, only that of Dr Mulholland made reference to the likely timing of the clinical onset of alcohol dependence or abuse and depressive disorder. His opinion was that this was in the mid-1990s and that is consistent with the evidence of the applicant’s sister, Mrs Edwards, who referred to a gradual development of symptoms in Mr Law. It is also consistent with the evidence of Mr Law of an absence of any treatment by his treating doctor of 30 years standing for any psychiatric treatment until 2001. It follows that the material before the Tribunal does not point to the clinical onset of either of these conditions within the two year timeframe of his experiencing the stressor in Vietnam. This means that the material before the Tribunal does not point to the satisfaction of the requirements of factor 5(b) for alcohol dependence or abuse or factor 5(b) for depressive disorder.
42. With each of those conditions, the alternative factor in the SoP relies upon the presence of a psychiatric condition within a particular time-frame time of the clinical onset of the condition. It is not disputed that post traumatic stress disorder meets the definition of psychiatric condition in the SoP for depressive disorder. Factor (c) in that SoP requires the post traumatic stress disorder to be present within the two years immediately before the clinical onset of depressive disorder and also to be clinically significant at that time. Again, it is not disputed that post traumatic stress disorder meets the definition of psychiatric disorder in the SoP for alcohol dependence or abuse. Unlike the SoP for depressive disorder, the requirement of a clinically significant presentation is not included in the definition. It is sufficient if the post traumatic stress disorder was present at the time of the clinical onset of the alcohol dependence or abuse.
43. In her evidence, Dr Harding referred to the presence of symptomatology of Mr Law’s psychiatric status, generally, for at least the past 7 years and this is consistent with clinical onset not only of the depressive disorder and alcohol dependence or abuse but of his post traumatic stress disorder as being in the mid-1990s. This means that the evidence points to the satisfaction of the time-frames noted above for both depressive disorder and alcohol dependence or abuse.
44. The definition of clinically significant is set out above. It requires the condition to be such as to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner. While the material before the Tribunal points to the time-frame of onset for depressive disorder, that is not the situation with the severity of post traumatic stress disorder in the mid 1990s. There is no evidence of any treatment for the condition prior to the referral to Dr Harding in 2001. This means that the material before the Tribunal does not point to post traumatic stress disorder as being a clinically significant condition at that time. It follows that factor 5(c) in the SoP for depressive disorder is not met and that no reasonable hypothesis is raised in relation to depressive disorder. This means that that this condition is not war-caused for the purposes of the Act.
45. I accept the submission of Mr Selfridge that there is a reasonable hypothesis of a relationship to Mr Law’s service of post traumatic stress disorder through factor 5(a) in the SoP for that condition. Further, in the event that Mr Law’s post traumatic stress disorder is determined to be related to his service, the hypothesis of a relationship for alcohol dependence or abuse per medium of that condition will also be reasonable under factor 5(a) of the SoP for that condition.
Deledio Step 4: Are the Conditions War-caused?
46. Mr Law’s post traumatic stress disorder will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence in relation to the two incidents accepted above as raising a reasonable hypothesis, namely, the experiencing of the auto-rotation in the helicopter and the gunfire in the Land Rover.
47. As part of its investigation, the respondent engaged Write-way Research Services to prepare a report on the contentions raised by Mr Law. In relation to the Land Rover incident, the Write-way reporter said that there was no record of any attack against any Australian vehicle on the road from Vung Tau to Nui Dat in the period described by Mr Law. The Write-way report provided details of incidents involving civilian and United States army vehicles on the roads travelled by Mr Law and these included occasions when shots were fired at them. There were significant inconsistencies in the accounts provided by Mr Law in relation to this incident. The Veterans’ Review Board reasons record Mr Law as stating that he heard a single shot. Mr Law denied saying that but I do not accept his evidence in that regard. The Veterans’ Review Board reasons also record Mr Law as saying that he could not detect the direction from which the firing came. His evidence to the Tribunal was that the vehicle had passed through a village and that the shots were fired from behind the Land Rover, probably from the village. While his evidence was that he was in a Land Rover, the history taken by Dr Harding and recorded in her report was that he was in an armed personnel carrier at the time. I also have difficulty accepting Mr Law’s evidence that an incident as described on such an important route would not be reported. Considered overall, the evidence creates real doubt that the shooting incident occurred in the manner described by Mr Law or at all.
48. The report from Write-way Research Services conceded that Mr Law may have experienced the manoeuvre of auto-rotation but denied that it would have been completed in the manner that he described. In particular, the author of the report said that, from his research, the engine would have been switched to idle and not switched off completely. However, that was not the evidence given to the Tribunal by Mr Rogers who said that, normally, the engine would be allowed to idle but that, on occasions, it could be switched off. I cannot be satisfied beyond reasonable doubt that the auto-rotation incident did not occur in the manner described by Mr Law or that it did not have the effects upon him as he described them. It follows that I cannot be satisfied beyond reasonable doubt that Mr Law’s post traumatic stress disorder is not war-caused for the purposes of the Act and his claim in respect of that condition must succeed.
49. On the evidence before the Tribunal, the clinical onset of Mr Law’s alcohol dependence or abuse was at a time when he had commenced to suffer from post traumatic stress disorder. In that situation, I cannot be satisfied beyond reasonable doubt that Mr Law does not meet the requirements of factor 5(a) for alcohol dependence or abuse. This means that Mr Law’s alcohol dependence or abuse is war-caused for the purposes of the Act.
Date of Effect
50. The applicant’s initial claim for acceptance of his psychiatric conditions was lodged with the respondent on 21 August 2001. The earliest date from which pension is payable to him, in accordance with section 177 of the Act, is three months prior to that date, or 21 May 2001.
Decision
51. The Tribunal:
(a) affirms the decision under review in relation to depressive disorder;
(b)sets aside the decision under review in relation to post traumatic stress disorder and alcohol dependence or abuse and substitutes its decision that those conditions are war-caused diseases, that pension for any incapacity associated with those diseases is payable to the applicant from and including 21 May 2001 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 25 November 2004
Date of Decision 16 December 2004
Counsel for the Applicant Mr J Selfridge
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
0
8
0