Livings and Repatriation Commission
[2006] AATA 574
•30 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/786
VETERANS' APPEALS DIVISION )
Re BRIAN LIVINGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr RG Kenny, Member
Date 30 June 2006
Place Brisbane
Decision The Tribunal affirms the decision under review. .....................[Sgd].........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Air Force – application of Statements of Principles – appropriate diagnosis of psychiatric condition – no diagnosis of post traumatic stress disorder – generalised anxiety disorder diagnosed – reasonable hypothesis of relevant relationship to service raised – no clinical onset within two years - satisfied beyond reasonable doubt that condition not attributable to eligible war-service
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss, 6C, 14, 21A, 69, 70, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCR 633
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
30 June 2006 Mr RG Kenny, Member
Background
1. Robert Livings (the applicant) completed a period of service with the Royal Australian Air Force (the RAAF) from 22 September 1964 until 21 September 1973. On 16 April 2003, he lodged, with the Repatriation Commission (the respondent) in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for conditions which he contended were related to his RAAF service. He nominated these as “back problems”, “hearing loss”, “tinnitus” and a “nervous condition”. On 12 September 2003, the respondent accepted that Mr Livings was entitled to receive a pension for incapacity associated with bilateral tinnitus but assessed that incapacity at nil. It rejected a claim for lumbar spondylosis and also determined that Mr Livings was not suffering from hearing loss or a psychiatric condition.
2. Mr Livings sought review of the respondent’s decision in relation to lumbar spondylosis, hearing loss and psychiatric condition by the Veterans’ Review Board (the Board) which affirmed the decision in relation to lumbar spondylosis but accepted that Mr Livings suffered from bilateral sensorineural hearing loss and that this was related to his service. The Board assessed pension at 10% of the general rate under section 21A of the Act for incapacity associated with that hearing loss, with tinnitus and with malignant melanoma of the skin of various sites. The Board found that Mr Livings suffered from generalised anxiety disorder but determined that this was not related to any aspect of his service with the RAAF. Mr Livings now seeks review of the Board’s decision, in so far as it relates to his psychiatric state, by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Livings was represented by Ms Carter-Nicholl of counsel and the respondent was represented by Mr B Williams. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues and Service
4. It was agreed by Mr Williams and Ms Carter-Nicholl that, in this matter, the Tribunal is to determine from what, if any, psychiatric condition Mr Livings suffers and whether any such condition arose out of or was attributable to his eligible war service. Matters relating to lumbar spondylosis and assessment of pension for the previously accepted conditions are not before the Tribunal.
5. Mr Livings was born on 22 November 1944 and was 19 years of age when he enlisted in the RAAF. He commenced training as a radio operator but, after about six months, was remustered to the RAAF police. He completed his basic training at Point Cook and served in Edinburgh in South Australia and at Townsville in Queensland before being posted with the rank of corporal to South Vietnam. There, he served with Base Support Flight/1 Operational Support Unit at Vung Tau. After returning to Australia, he was promoted to the rank of sergeant at which level he served for 2½ years in Malaysia before his discharge in 1973.
6. During his service with the RAAF, he completed a period of defence service as provided for in sections 69 and 70 of the Act from 7 December 1972 until his discharge. However, it is common ground that Mr Livings’ claim does not relate to that period of service and I am satisfied that any psychiatric condition from which he suffers is not defence-caused. Mr Livings also rendered a period of eligible war service in the form of operational service as provided for in section 6C of the Act from 19 February 1968 until 21 February 1969 in South Vietnam.
7. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in subsection 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination
8. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Submissions
9. Ms Carter-Nicholl contended that the appropriate diagnosis of Mr Livings’s psychiatric condition was post traumatic stress disorder or, in the alternative, generalised anxiety disorder and that, in either case, the condition was related to any one of several stressful experiences that he underwent whilst carrying out his duties as a service policeman in South Vietnam. These were:
·being assaulted by a United States serviceman when Mr Livings was attempting to separate soldiers involved in a street brawl (the US serviceman assault);
·being assaulted by a New Zealand serviceman when Mr Livings was attempting to break up a brawl amongst soldiers (the NZ serviceman assault);
·arresting a United States serviceman who had assaulted an Australian soldier (the US serviceman arrest);
·experiencing a rocket attack at Vung Tau which resulted in United States servicemen being killed (the rocket attack);
·transporting a seriously wounded Vietnamese man to hospital (the passenger incident);
·witnessing the crash of a twin rotor helicopter which experienced a mechanical malfunction such that its rotor blades came into contact with each other (the helicopter crash);
·being involved in what he described as “dust-offs/medical evacuations” (the dust-offs); and
·being shot at whilst in a vehicle travelling between Vung Tau and Nui Dat (the shooting incident).
10. Mr Williams submitted that Mr Livings does not suffer from post traumatic stress disorder and that, if he does have a generalised anxiety disorder, it is unrelated to his service in South Vietnam.
Medical Evidence
11. Dr Janis Carter was Mr Living’s treating psychiatrist in 2003 and 2004. After seeing him on eight occasions, she completed a report, dated 12 March 2004, in which she diagnosed post traumatic stress disorder. She described several events that had been related to her by Mr Livings. These included the first five of the events noted above. No reference was made by her to the helicopter crash, the dust-offs or the shooting incident. Dr Carter reported that Mr Livings had intrusive and distressing dreams about the passenger incident and that he has flashbacks of the rocket attack. She described Mr Livings as seeing himself as having a foreshortened future and said this was demonstrated by his undertaking employment at levels significantly lower than those at which he had performed in the past.
12. In a subsequent report, dated 2 February 2006, and in her oral evidence, Dr Carter confirmed that, in her opinion, Mr Livings suffers from post traumatic stress disorder but conceded that this was conditional upon his having been exposed to a ‘traumatic event’ in the diagnostic criteria for that condition as provided by the Repatriation Medical Authority (RMA). She also said that, if this criterion was not met, Mr Livings satisfied the requirements for diagnosis of generalised anxiety disorder which was causally related to his service in Vietnam. Dr Carter also expressed the opinion that Mr Livings had suffered from symptoms of anxiety during and shortly after his return from Vietnam. In that regard, she relied upon what she was told by Mr Livings about his own feelings and those of his wife. Dr Carter was referred to a stressful time in Mr Livings’ life in 1989 when he was treated for anxiety and she considered that his anxiety state, which was pre-exisitngat that time, could have been aggravated by those later circumstances.
13. Dr W Kingswell is a consultant psychiatrist who saw Mr Livings in October 2004 and spoke to him in January 2005 before completing a report on 24 January 2005. Dr Kingswell recounted events in Vietnam described by Mr Livings. These were the NZ serviceman assault, the US serviceman arrest, the rocket attack, the passenger incident and the helicopter crash. Dr Kingswell did not refer to the US serviceman assault, the dust-offs or the shooting incident.
14. Dr Kingswell said that Mr Livings reported that he had felt anxious during his time in Vietnam and that, after returning to Australia, he recalled waking from sleep with dreams on occasions but had been unable to remember the contents of the dreams. He described to Dr Kingswell a recurring dream of returning to Vietnam and said that he did not have intrusive recollections of Vietnam unless somebody particularly raised the subject and, when that happened, he was able to distract himself from thinking about it.
15. Dr Kingswell reported that, as part of his post-service employment, Mr. Livings worked for Avis-Rent-a-Car for 17 years during which time he had become the state manager for New South Wales. He was retrenched from that position in 1989. Dr Kingswell noted that Mr Livings described his psychological difficulties as having commenced at that time. He also noted that Mr Livings had no recollection of psychological symptoms during his time with Avis and that, after retrenchment, his marriage deteriorated. During 1990, he became depressed and irritable and experienced a period of some two years of unemployment. Dr Kingswell noted that Mr Livings had a number of goals that he wished to achieve. These included finding a more stimulating job, remarrying, purchasing a house, bringing his mother out to Australia from the United Kingdom and also of travelling to the United States of America. Mr Livings described himself to Dr Kingswell as an optimistic person who enjoyed life, played a lot of sport, particularly golf, enjoyed his home life and got on well with people. He told Dr Kingswell that he remained capable at his current job as a fire ant controller with the Department of Primary Industries with whom he had been employed since 2001. In his report, Dr Kingswell recorded that Mr Livings had experienced anxiety in Vietnam which had resolved with only mild residual symptoms until the difficulties he experienced in 1989.
16. In Dr Kingswell’s opinion, Mr Livings does not suffer from post traumatic stress disorder but does have a generalised anxiety disorder. He considered that this condition had its onset during and because of the events of 1989 although he agreed that there might have been an anxiety state present since 1969. Dr Kingswell conceded that, if it was the case that Mr Livings’ wife had noted symptoms of anxiety on returning from Vietnam and that his promotion to the rank of sergeant took much longer than would normally be the case, these might support the existence of generalised anxiety disorder from 1969. Nevertheless, he said that Mr Livings’ history of promotion to the rank of Sergeant before travelling to Malaysia in 1972 and his very sound employment record until 1989 meant that any condition that he suffered from would have no clinical significance before the events of 1989. In cross examination, Dr Kingswell accepted that some of the matters described by Mr Livings could constitute stressful events for the purposes of satisfying the RMA definition of post traumatic stress disorder. However, Dr Kingswell confirmed his opinion about the diagnosis of Mr Livings’ psychiatric condition on the basis that not all of the other criteria for post traumatic stress disorder were met by him.
Diagnosis
17. For post traumatic stress disorder, the relevant Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria which need to be met before a diagnosis of post traumatic stress disorder can be made. These are:
(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; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
18. All six of those criteria must be met before the diagnosis of post traumatic stress disorder can be made. It will be seen below that I have reservations about the extent to which some of the eight events relied upon by Ms Carter-Nichol constitute stressors. However, I am reasonably satisfied that the requirements of criterion B are not met in this case. In that regard, Dr Carter described recurrent, intrusive and distressing recollections and dreams about particular incidents that occurred in South Vietnam. She also described flashbacks in respect of certain incidents. That is not the description recorded by Dr Kingswell who noted that Mr Livings was unable to recall the content of any dreams that he had except that relating to the fear of being sent back to South Vietnam. That record is consistent with the oral evidence given by Mr Livings who said that he did not recall the content of dreams apart from the one about returning to Vietnam. He also said that he no longer has those dreams. Dr Kingswell recorded that he was able to distract himself from recollections of matters that occurred during his service. Dr Kingswell’s report is also at odds with that of Dr Carter in relation to some aspects of criterion C. Whilst Dr Carter described a perception by Mr Livings of a foreshortened future, that is not what was described to and recorded by Dr Kingswell. He noted that Mr Livings outlined achievement goals including finding a more stimulating job, remarrying, purchasing a house, bringing his mother out to Australia and travelling. He also described himself to Dr Kingswell as an optimistic person who enjoyed life, was capable at his job, who played a lot of golf, who enjoyed home life and got on well with people. Because of the consistency of his report with Mr Livings’ evidence, particularly that relating to criterion B, I accept Dr Kingswell’s opinion concerning the diagnosis of post traumatic stress disorder and, on the balance of probabilities, find that this condition is not present in Mr Livings.
19. For anxiety disorder, the relevant Statement of Principles is Instrument No 1 of 2000 and the diagnostic criteria are listed therein. Both Dr Carter and Dr Kingswell have opined that these are met in Mr Livings’ case and I am reasonably satisfied that he suffers from this condition.
Principles of Causation
20. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I have noted the eight events described above as having been experienced by Mr Livings and am satisfied that there are hypotheses of a relationship between his operational service and his anxiety disorder.
21. The second of the four Deledio steps requires identification of the relevant Statements of Principles as published by the RMA. These have been noted above.
22. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. For anxiety disorder in this matter, these read:
“5.(a)…
2. Experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;…
“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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
23. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
The Incidents to be Considered
The US serviceman assault/the NZ serviceman assault
24. Mr Livings said there were many occasions during his service when he was involved in physical altercations with other serviceman and that this was to be expected because of his role as an RAAF policeman. He recalled the particular occasions when he was assaulted by a United States serviceman and by a New Zealand serviceman while he was attempting to break up fights amongst groups of soldiers. He described himself as being disadvantaged in those encounters because of his relatively light physique when confronted by each of the two protagonists who had been much bigger and heavier than he was. He said that he was knocked to the ground and suffered bruising to his face and, on one of those occasions, was taken for outpatient treatment by a fellow RAAF policeman, Neil McDonald, to an American hospital. Mr Livings said that he had been knocked out on one of those occasions and that, on the other occasion, he felt very sore and wondered why he should have been bashed in that way.
25. Mr McDonald gave evidence at the hearing. He said that he accompanied Mr Livings on numerous patrols in their capacity as service policemen. He recalled the occasion when Mr Livings intervened in a fight between Australian and American soldiers during which Mr Livings was hit in the face by an American serviceman. He recalled that Mr Livings fell to the ground and that he subsequently took him to the United States hospital where he was treated for facial injuries. He said that he subsequently returned to the hospital to transport Mr Livings back to the base. He remembered that, at the time, Mr Livings developed substantial bruising to his face.
The US serviceman arrest
26. Mr Livings said that he had been on patrol in Vung Tau township and was ordered by a US provost marshal to locate a US serviceman who had beaten up an Australian soldier using a bunch of keys which had been wrapped around his fist. He located him in a local bar where he used his service pistol to arrest the man who came without resistance. He described himself as being "cool" at the time but said that, afterwards, he felt stressed by what might have happened if the US serviceman had resisted.
The rocket attack
27. Mr Livings, in a written statement dated 2 February 2006, described a rocket attack at Vung Tau base early in 1969. He said that 17 rockets were fired on to the base and that, whilst no Australians were killed or injured, he learned the following day that several US serviceman had been killed. He said the noise of the rockets was very loud and, even though they landed a kilometre away from where he was, they nevertheless shook the ground around the Australian quarters. One of his main concerns at this time was that he was required to ensure that all other Australian servicemen were safely in their bunkers which meant that he felt more exposed to the prospect of injury than otherwise.
The passenger incident
28. Mr Livings said that he was driving a Land Rover in the town when he saw a person lying on the side of the road. He stopped to investigate and saw that it was a Vietnamese soldier who had been shot. He placed him in the back of the Land Rover and drove him to a US hospital for treatment. He said that he was able to see that the man had been shot three times in the chest. He also said that he was impressed with the speed and quality of treatment that was provided to the man at the hospital.
The helicopter crash
29. Mr Livings said that he saw this incident involving a Chinook helicopter at Vung Tau. He saw its rotor blades came into contact with each other and then with the fuselage of the aircraft. He saw the fuselage open up and personnel fall to the ground before the helicopter crashed.
The dust offs
30. Mr Livings said he volunteered to take part in what he described as “dust-offs” or medical evacuations by helicopter. In his written statement, he wrote:
“On occasions I volunteered when called for to act as a crewman on “dust offs” medical evacuation of wounded soldiers from the battlefield by helicopter which at times were very traumatic to see young men so badly mangled. I was horrified.”
31. He described his role in these flights as that of manning a machine gun in the helicopter and firing indiscriminately into areas of bushland where it was feared that enemy soldiers might be located.
The shooting incident
32. Mr Livings said that, on one occasion when he was a passenger in a vehicle travelling between Vung Tau and Nui Dat, he heard a sound which he believed to be a gunshot. He did not see anyone who may have been responsible for discharging a weapon and there was no damage to the vehicle. However, he believed that someone had fired at them. He was unable to recall if any official report had been made of the incident.
Reasonableness of Hypotheses
33. In order to constitute an identifiable occurrence for the purposes of the definition of a severe psychosocial stressor, an event described by Mr Livings must be one which, subjectively, evoked feelings of substantial distress in him as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence: White v Repatriation Commission [2004] FCR 633 (Spender J at paragraph 30). Examples of "identifiable occurrences" contemplated by the Statement of Principles include being shot at and assault. Except for the US serviceman arrest, the remaining events described by Mr Livings point to the terms of the template provided by the definition of a severe psychosocial stressor. The US serviceman arrest was referred to in Mr Livings’ statement and his oral evidence. It was described by Dr Carter and by Dr Kingswell although, there, he is noted to have had no recollection of the details of the incident. Mr Livings’ evidence was that he went about this task in a calm manner and was able to apprehend the American soldier without complications except that, after the event, he realized what a vulnerable position he had been in. That does not point to a situation which meets the requirements a severe psychosocial stressor as the term is used in the Statement of Principles.
34. In addition to an identifiable occurrence, the factor in the Statement of Principles for anxiety disorder requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described 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 Repatriation Commission and Cornelius [2002] FCA 750. The evidence of Dr Carter does point, to an extent, to meeting this requirement in the sense that she described the condition as having been present during and from the time of Mr Livings’ service in South Vietnam. This is not a finding of fact but, rather, one which accepts that this time-related element of the factor in the Statement of Principles is pointed to by the material in evidence.
35. Accordingly, the hypotheses relating to the US serviceman assault, the NZ serviceman assault, the rocket attack, the passenger incident, the helicopter crash, the dust-offs and the shooting incident are reasonable and it is necessary to consider each of them in the context of the fourth of the Deledio steps. This will require a finding that anxiety disorder is war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Deledio Step 4: Are the conditions War-caused?
The US serviceman assault/the NZ serviceman assault
36. In relation to some of the events that Mr Livings described as having occurred to him in South Vietnam, his evidence has been given in a consistent manner. That is the case with the US serviceman incident and subsequent visit to a US hospital and also with the New Zealand serviceman incident both of which he referred to in a statement made on 2 February 2006 and in his oral evidence. These were also recounted by Dr Carter. Dr Kingswell described episodes of assault and the US serviceman incident was confirmed by Mr McDonald. On the evidence, I cannot be satisfied beyond reasonable doubt that these episodes of assault did not occur in the manner described by Mr Livings or that they did not have the requisite distressing effect upon him or would not have such an effect on another person who might be similarly placed.
The rocket attack
37. Consistency in Mr Livings’ evidence does not extend to the remaining events upon which reliance is placed. The rocket attack is described by Dr Carter as involving 17 missiles and 20 American fatalities all with the surname Smith. Mr Livings said that this was because some of the rockets damaged American huts where the soldiers were accommodated alphabetically. Dr Kingswell noted that 17 American soldiers were killed in the rocket attack. Both Dr Carter and Dr Kingswell recorded that Mr Livings’ concern at the time was carrying out of his duty which was to ensure that all of the Australian servicemen made it safely into their respective bunkers. However, in his oral evidence, he said that, when the rocket attack began, he and other soldiers had been watching a video and that his immediate reaction was to dive under his bed until he “got over the shock” and then he got up and “started to do something”. That is materially different from any version of that incident that he has previously related.
38. Writeway Research Service Pty Ltd is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. With Mr Livings, a report, dated 13 May 2005, was completed by Mr M Murray who served in the RAAF for 39 years and retired in 1996 with the rank of Air Commodore. As part of his investigations, Mr Murray consulted unit history sheets and spoke to former RAAF colleagues who had served at Vung Tau. Mr Murray’s research identified four rocket attacks during the period that Mr Livings was at that base. There were two attacks on 23 April 1968 at 0053 hrs and 0530 hrs, respectively, and, although property damage occurred, there were no casualties. A further attack occurred in the early hours of the morning of 19 October 1968 and two US servicemen were killed. On 21 January 1969, at 0803 hrs, a further rocket attack occurred but none of these landed within the airfield boundary although two US servicemen were killed. Mr Murray reported no damage to RAAF facilities and no RAAF casualties. I accept as correct the research results compiled by Mr Murray and I am satisfied beyond reasonable doubt that rocket attacks did not occur in the manner or with the effect described by Mr. Livings.
The passenger incident
39. Mr Livings’ accounts concerning the passenger in the vehicle also lacked a degree of consistency. He described it to both Dr Carter and Dr Kingswell. Dr Carter wrote that a South Vietnamese soldier in the back of his vehicle was shot three times. Dr Kingswell wrote that Mr Livings recalled “taking a Vietnamese citizen who had been shot to the US hospital by transporting him in the back of his jeep.” In his oral evidence, he said that he had not advised Dr Carter that he had witnessed the shooting. Yet, in his written statement, he wrote that he “witnessed a South Vietnamese soldier being shot several times whilst a passenger in a Land Rover on the way to the American hospital.” In his other evidence he also said that, after taking the man to the hospital, he “did not hang around” and yet he was able to comment on the high quality of the treatment provided. I am satisfied beyond reasonable doubt that the passenger incident did not occur in the manner or with the effect described by Mr. Livings.
The helicopter crash
40. The helicopter incident was described by Mr Livings in his written statement. There, he said that he witnessed the “spilling out of US Army personnel from a US Chinook helicopter within easy sight” of his “service jeep”. Dr Kingswell described Mr Livings’ witnessing US soldiers falling to their death with Mr Livings being no more than 400 yards from the incident. Surprisingly, he did not report this incident to Dr Carter. In evidence, he agreed that a different version had been related in his evidence to the Board. There, he said that he was driving on the airfield, that he stopped at an intersection with the active taxiway to wait for the Chinook to taxi by, that he noted, when the aircraft was about 150 yards away, that the rotor blades came into contact with each other and that this led to the spilling out of passengers and the crashing of the aircraft. In his evidence at the hearing, he said that he was not waiting for the Chinook to taxi by but, rather, for a light aircraft which had just landed to do so. He also said that he observed the helicopter which was 500 - 600 meters away when it was cut in half by the rotor blades.
41. Mr Murray also investigated Mr Livings’ claim concerning the helicopter incident. He confirmed that the twin rotor helicopter would have been a US Army Chinook as that type of aircraft was not operated by the RAAF. He wrote that these were not based at Vung Tau but visited the base from time to time. Mr Murray reported that he spoke to senior officers who were in Vung Tau at the time of Mr Livings’ service and was advised that they had no recollection of any incident involving a Chinook helicopter as described by Mr Livings. However, in evidence was a record obtained by Mr Livings of fatal incidents involving Chinook helicopters in Vietnam. This included an entry, dated 26 April 1968, as a result of which ten US servicemen were killed in Phuoc Tuy Province. The entry reads:
“After replacing two engine gear boxes to transmission drive shafts and reinspecting, the A/C departed on the flight. It was observed to explode and fall to the ground burning. The rotor blades became desynchronized due to lack of lubrication in the combining transmission.”
42. Whilst that record confirms that an accident involving a Chinook helicopter occurred during Mr Livings’ service in South Vietnam, it does not identify the place of that accident as being Vung Tau. No reference was made by Mr Livings to an explosion or to the burning of the aircraft. Because of the materially different description of the incident given by Mr Livings, the lack of recollection of any such incidents by senior officers who were there at the time and Mr Livings differing versions of the incident, I am satisfied beyond reasonable doubt that the incident did not occur in the manner or with effect described by Mr Livings.
The dust-offs
43. The “dust-off” incidents were referred to in Mr. Livings’ statement and his oral evidence but did so in terms which were materially different. In his statement, he described the evacuation of wounded soldiers from the battlefield when it was very traumatic for him to see young men so “badly mangled”.
44. At one point, he described his role in these flights as that of manning a machine gun in the helicopter and firing indiscriminately into areas of bushland where it was feared that enemy soldiers might be located. Later, he said that the dust-offs were the same as medical evacuations and, at another point, he said that they were different missions. He also said that he went on such missions on only two occasions. Initially, he was unable to recall how many wounded soldiers had been brought back by helicopter or how badly wounded they were. Later in his evidence, he said there were two on one particular flight. He said that he did not get out of the aircraft when it landed and that the wounded were carried into the aircraft by two paramedics who were on the flight. He was unable to recall the nature of the wounds because they were covered in padding to stop bleeding. He said that they were “not badly injured” and “not badly mangled”. No reference is made by Dr Carter or Dr Kingswell in their reports or by the Board in its reasons for decision to these events and I am satisfied beyond reasonable doubt that the incident did not occur at all or in the manner and with the effect described by him.
The shooting incident
45. The shooting incident was not related to Dr Carter or Dr Kingswell. It was not referred to in Mr Livings’ written statement. It was not referred to in evidence before the Board. In his oral evidence, Mr Livings said that he heard what he believed to be a shot. There is no confirmation that this actually happened but, in any event, I am satisfied beyond reasonable doubt that this was not an incident which caused substantial distress to Mr Livings.
Summary of incidents
46. In summary, I am not satisfied beyond reasonable doubt that the assaults experienced by Mr Livings did not constitute psychosocial stressors as that term is used in the Statement of Principles. This means that his anxiety disorder will be war-caused provided the clinical onset of the condition occurred within two years.
Clinical onset
47. For the purposes of determining a reasonable hypothesis, I determined that there is some evidence which points to a clinical onset within the templated time-frame of two years as provided by the Statement of Principles. This was the evidence of Dr Carter. However, that opinion was formed in reliance on the self-reporting of his psychiatric state by Mr Livings. He described his own understanding of the situation and also what he recalled was said to him by his wife. There were many inconsistencies in Mr. Livings’ evidence and these lead me to the conclusion that he is an unreliable witness. The opinion of Dr Kingswell differed from that of Dr Carter. While he accepted the possibility that Mr Livings may have had an anxiety disorder from the time he returned to Australia in 1969, his opinion was that Mr Living’s anxiety disorderit was related to the events that occurred in Mr Livings’ life in 1989. He noted that Mr. Livings reported feelings of anxiety whist in South Vietnam but said that experiencing anxiety is not the same as having an anxiety disorder.
48. After leaving the RAAF, Mr Livings worked as a real estate salesman for two years. He resigned after he had an altercation with the principal of the real estate firm. He did this for ethical reasons as the principal had placed him in a difficult position concerning the sales of property in a particular housing estate. Mr. Livings had made representations to purchasers that only high quality housing would be built there. However, unbeknown to him, the principal had sold parts of the estate for housing commission purposes. Mr. Livings became the subject of discussions on talkback radio programs because of this and he resigned. Clearly, that cessation of employment was not related to any psychiatric condition at the time. Mr. Livings was then employed by Avis Rent-a-Car where he became the state manager for New South Wales until he was retrenched in 1989. He said that he was “devastated” by the retrenchment decision. The company had used him to advise various other employees that their services were no longer required and, when this process had been completed, he was advised that he was also being made redundant. Mr Livings told Dr Kingswell that his psychological difficulties began in 1989 and were most notable after the restructure of the Avis car rental business. Mr Livings said that he also went through a divorce shortly afterwards and that, for the first time, he was prescribed medication in the form of valium for anxiety by his general practitioner. Dr Kingswell was of the opinion that there was no clinically significant anxiety disorder demonstrated by Mr Livings in his sound work record prior to his retrenchment.
49. The evidence of Mr Livings was that he was promoted to sergeant after returning from South Vietnam. Dr Kingswell said that such promotion was also inconsistent with the presence of any clinically significant anxiety problem. Mr Livings said that this promotion took seven years and that this time-frame was longer than usual for a person to remain at the rank of corporal. Dr Kingswell conceded that, if this was so, it may support the presence of anxiety state. However, Mr Livings also said that his slow promotion was due to the consequences of certain disciplinary action which was taken against him whilst he was in Vietnam. He recounted an occasion when he and another airman travelled to an out-of-bounds area and were apprehended on leaving it by an officer with whom Mr Livings had experienced adverse dealings in the past. He said that, as a result of this, he lost two years seniority and that this was the reason for his slow promotion.
50. The redundancy related events of 1989 and domestic matters which arose shortly thereafter impacted heavily on Mr Livings. He described feelings of “devastation” at the way he was treated. For the first time, he was placed on medication. Whilst Dr Kingswell conceded that the possibility that a pre-existing condition of anxiety was worsened by those events at that time, it was his opinion that the condition became manifest at that time and that there was no clinically significant anxiety disorder present before then. I have decided to accept that reasoned conclusion rather then the opinion of Dr Carter which was based upon Mr Livings’ own observations and without acknowledgment of his sound employment record until that time.
51. On the evidence before me, I am not satisfied beyond reasonable doubt that the clinical onset of Mr Livings’ anxiety disorder occurred within two years of the psychosocial stressors that he experienced doing his service. This means that the requirements of the Statement of Principles for anxiety disorder are not met.
Decision
52. The Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ............................................................
J Mills, Legal Research OfficerDate/s of Hearing 17 May and 6June 2006
Date of Decision 30 June 2006
Counsel for the Applicant Ms B Carter-Nichol
Solicitor for the Applicant Haney Lawyers
Representative for the Respondent Mr B Williams
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