Lloyd and Repatriation Commission
[2001] AATA 814
•13 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 814
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1795
VETERANS' APPEALS DIVISION )
Re MAXWELL LLOYD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member
Date13 September 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1795
)
VETERANS' APPEALS DIVISION )
Re: MAXWELL ALLEN JAMES
LLOYDApplicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member
Date 13 September 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, MAXWELL ALLEN JAMES LLOYD, suffers from the war-caused disease of Post Traumatic Stress Disorder and is entitled to pension for this said disease as and from 1 August 1999; and
2.This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Claim for Post Traumatic Stress Disorder. Veteran observed evidence of Japanese stragglers having resorted to cannibalism. Whether a severe stressor in terms of Statement of Principle.
Veterans' Entitlements Act 1986 – s120(1), (3) and (6); s120A
Repatriation Commission v Deledio 83 FCR 82
Vickery v Repatriation Commission [2001] FCA 971
Meehan v Repatriation Commission [2001] FCA 597
REASONS FOR DECISION
Senior Member M D Allen
Dr M E C Thorpe, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 13 September 2001
Date of Decision 13 September 2001Counsel for Applicant Mr Craig Colborne
Advocate for Respondent Mr Stephen Moddar, Department of Veterans'
AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/1795
By MR M.D. ALLEN, Senior Member and
Dr M E C Thorpe, Member
LLOYD and REPATRIATION COMMISSION
SYDNEY, THURSDAY, 13 SEPTEMBER 2001MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on the fourth day of December 2000 the applicant seeks review of a decision of the respondent dated the 18th day of November 1999 and affirmed by the Veterans Review Board that his conditions of major depression and post traumatic stress disorder were not war caused diseases.
As the applicant had operational service as that term is defined in the Veterans Entitlements Act 1986 as amended the standard of proof in this matter is that as laid down by subsections 1 and 3 of section 120 of the Veterans Entitlements Act. Those particular subsections provide in effect that the claim of the applicant will be granted unless the Tribunal is satisfied beyond reasonable doubt that there are no sufficient grounds for granting the claim.
The claim will not be one which meets the standards set forth in subsection 1 if there does not exist a reasonable hypothesis connecting the said disease with the circumstances of the applicant's service. Those particular proof provisions have been further modified by section 120A of the Veterans Entitlements Act which provides that any hypothesis will not be a reasonable hypothesis unless it conforms with a so called statement of principles. In this matter the applicable statements of principle are instrument number 58 of 1998 in relation to the depressive disorder and instruments number 3 and 54 of 1999 relating to post traumatic stress disorder.
The only other provision to mention at this time is subsection 6 of section 120 which provides that neither party to this review bears any onus of proof. The relationship between section 120 and section 120A was set forth by the Full Court of the Federal Court in Repatriation Commission and Deledio 83 FCR 82 at 97, namely that the course which the Tribunal is to take is as follows. One, 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 exists the application must fail.
IoreJ 13.09.01 P-1
©Auscript Pty Ltd 2001
If the material does raise such a hypothesis the Tribunal must then ascertain whether there is in force a statement of principle determined by the authority. If no such statement of principle is in force then the hypothesis will be taken not to be reasonable and in consequence the application must fail. We would only interpose to say that latter statement is not in accordance with law. If there is in fact no statement of principle then of course one reverts to the simple reasonable hypothesis test as mandated by subsection of section 120.
However, the Full Court then went on to say that if a statement of principle 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 statement of principle. 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. If the hypothesis does contain these factors it could neither be said to be contrary to proved or known scientific facts or otherwise fanciful. If the hypothesis fails to fit within the template it would be deemed not to be reasonable and the claim will fail.
Four: the Tribunal must then proceed to consider under subsection 1 of section 120 whether it is satisfied beyond reasonable doubt that the debt 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.
We would add that cases such as Vickery v Repatriation Commission 2001 FCA 971 and Meehan v Repatriation Commission 2001 FCA 597 have reiterated the importance of the fourth step of the Deledio process and that any fact finding is relegated to that fourth step in the process and the standard in this case is that of satisfaction beyond reasonable doubt.
The applicant's evidence was relatively straightforward and it has been challenged on some counts. The applicant said that he was originally a clerk in the headquarters orderly room of the 35th battalion AIF an infantry battalion. Shortly before that unit left for active service in New Guinea he was transferred to 135 brigade workshops which was the brigade, electrical and mechanical engineering workshops for the 8th brigade of which 35 battalion was an integral part.
IoreJ 13.09.01 P-2
©Auscript Pty Ltd 2001
That unit was landed at Finschhafen on the North Coast of New Guinea in January 1944. The applicant gave evidence that that night and subsequent nights the brigade workshop was strafed by Japanese aircraft and subjected to bombing. He said that the Liberty ship upon which the unit had been transported was sunk by Japanese bombing although he and his unit were ashore by that time. He did not see that bombing but learnt of it.
There is no notation in the unit war diary of any strafing by Japanese. In that regard although we may have some doubts of the applicant's evidence it is not necessary that we make any concluded decision.
He further gave evidence that because he knew the Commanding Officer of 35 battalion, and we can understand that he would, having been the orderly room clerk, he arranged between the OC of 135 brigade workshops and 35 battalion to go on a patrol into the Finisterre Ranges with 35 battalion. To this purpose he was attached to D Company of that unit. During that patrol he came across a native village where Japanese stragglers had been and he there saw signs that the Japanese had resorted to cannibalism of their own troops in order to survive. He also states that he was present at a fire fight between Japanese stragglers and the D Company patrol, as he put it, "we were firing at them and they were firing at us".
The applicant's version of events is corroborated by the war diary of 35 battalion which document is contained in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act commencing at page 70. An entry for 18 February 1944 refers to Tarpen Village and reads:- "At 1610 hours a force under Captain Farmer attacked Tarpen, 52 Japs including one officer killed, seven escaped, four wounded, 48 bodies found in village, three bodies had flesh carved from them".
At an entry timed 1520 hours on 20 February it states in a message to all company commanders "strict censorship, no references made to Japs consuming human flesh". An early entry on 17 February refers to the burning of a putrid village which contained 30 dead Japanese. The applicant then gave evidence that he still has dreams about what he saw at Tarpen Village on that particular day. He said, "The dreams have been with me all my life".
Questioned he said the most traumatic event of his service was seeing how the Japanese had cut themselves up and were going to eat themselves because they were hungry. He says a couple of nights a week he has bad dreams. He also said that at times he sees pictures of fellow soldiers who died whilst on active service. It would appear that several members of the 35th battalion died not
IoreJ 13.09.01 P-3
©Auscript Pty Ltd 2001
from enemy action but from diseases such as Dengue Fever. He said that he knew these people.
The applicant's version of events were challenged, however Mr Whiteman who gave evidence by telephone was a signaller in 35 battalion, he recollects the applicant being the headquarter company clerk and he recollects the applicant turning up at Weber Point which was the place where the battalion had camped prior to the patrols. He recollects that a patrol went out from D Company.
Particular needs to be made of the evidence of Mr Hawdon who was the signal officer for 35 battalion, he also was acquainted with the applicant as being the orderly room clerk and that the applicant had been transferred out of the unit. He then recollects him turning up at Weber Point and he remembers that the applicant was there and had with him as his armament an owen gun. He said he was aware that the applicant was engaged on the patrol and indeed recollects hearing the applicant's voice on a field telephone reporting back from the patrol. Given that corroborative evidence it is clear the Tribunal cannot be satisfied beyond reasonable doubt that the events to which the applicant deposed, namely the fire fight with the Japanese and the seeing of Japanese corpses in various states of decay, and in particular Japanese corpses which had apparently been mutilated so as to provide food for other Japanese, those events did not occur.
That being so it would seem that an hypothesis has been raised that if the applicant does indeed suffer from a post traumatic stress disorder then that disorder or disease is connected with his operational service. The diagnosis of post traumatic stress disorder was challenged by the respondent. The bases of its challenge are the undoubted facts that earlier the applicant had been diagnosed as having endogenous depression and depression, also an obsessional disorder. The first of those diagnoses appears to have been made by a general practitioner, a Dr Lowns on 3 April 1985, although the section 37 documents revealed that Dr Lowns was of the opinion that those diseases had their genesis in the applicant's war service.
A consultant psychiatrist, Dr McDonald diagnosed endogenous depression which was not connected with war service. The report of Dr McDonald of 19 October 1988 directed to the Department of Veterans Affairs doesn't contain any detailed history of the applicant's service although reference is made to it. There is another report from a Dr Vickery who also opined that the applicant had a degree of reactive depression.
Dr Vickery also referred to symptoms suggestive of early Alzheimers. Suffice to say that as at today's date, namely 2001, as
IoreJ 13.09.01 P-4
©Auscript Pty Ltd 2001
opposed to 1984, the applicant is not exhibiting to our view any signs or symptoms of dementia related to the aging process.
Dr Spragg likewise referred to an endogenous depression and in a report dated 5 December 1989, document T10, regarded the applicant's experience of combat as being insignificant as a traumatic agent. The history taken by Dr Spragg, however, is not a detailed one and certainly he records no history of the applicant's observing the results of cannibalism by the Japanese.
The applicant was then seen by Dr Altman, psychiatrist, and Dr Altman's opinion dated 10 August 1998 is a T document, T18. Dr Altman took a detailed history and also questioned the applicant regarding the indicia for a post traumatic stress disorder and opined the features exhibited by the applicant were indicative of a chronic war related post traumatic stress disorder. Dr Altman discussed the applicant's psychiatric history and concluded.
"In summary in my opinion as a result of his war experiences Mr Lloyd suffers from a chronic post traumatic stress disorder with an associated major depression".
The applicant was seen by Dr Shand on behalf of the respondent. Dr Shand did not consider that the applicant suffered from a post traumatic stress disorder. However, interestingly enough in his report of 12 May 2001, which is exhibit R2, he says:
"I stated that whilst it is not possible that this type of depression could be caused solely by war service, there is no doubt in my mind that stressful war service played a major part in Mr Lloyd getting depression when he first did in 1976".
We would only mention as an aside that that opinion is illustrative of the unfairness of the statements of principles issued by the Repatriation Medical Authority. In instrument number 58 of 1998, relating to depressive disorder, the factors set out refer to either:
Experiencing a severe psycho-social stressor or stressors within two years immediately before the clinical onset of depressive disorder or (c) having a clinically significant psychiatric condition within two years immediately before the clinical onset of depressive disorder.
Etcetera. Here the first diagnoses of the applicant's depressive disorder was in 1985 yet the respondent's own psychiatrist is of no doubt that stressful war service played a major part in the applicant's getting depression when he first did. It would appear that on that bases, apart from the so-called statement of principle, the applicant
IoreJ 13.09.01 P-5
©Auscript Pty Ltd 2001would be entitled on the face of it to have a depressive disorder recognised as a war caused disease.
That, however, is not the end of the matter. Dr Selman Smith, psychiatrist, in a report dated 22 December 1999, which is document T28 is firmly of the opinion that the applicant suffers from a Post Traumatic Stress Disorder. He gave evidence in these proceedings and we note that he said that he regards the applicant's depressive disorder and Post Traumatic Stress Disorder as two separate conditions.
He administered to him the Davidson test for PTSD symptoms and that confirmed his diagnosis of Post Traumatic Stress Disorder. In the view of Dr Smith, the applicant had had Post Traumatic Stress Disorder since World War II. What is confirmatory, in a sense, from Dr Smith's report is the report by Dr Butler, psychiatrist. In a report dated 29 January 1999 to the respondent, Dr Butler strangely says:
"He also has suffered since 1975 from some chronic symptoms of Post Traumatic Stress Disorder such as nightmares and flashbacks but he does not have sufficient symptoms for a definite diagnosis of chronic Post Traumatic Stress Disorder. His symptoms are of mild to moderate severity at most. In my opinion these Post Traumatic symptoms are due to his war experiences".
As Dr Smith pointed out, Dr Butler in coming to that opinion seemed to ignore the existence of a severe stressor in the applicant's case. The term 'severe stressor' is set forth in instrument number 3 of 1999 as amended by instrument number 54 of 1999:
An 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 or another person's physical integrity. Events that qualify as severe stressors include: threat of serious injury or death or engagement with the enemy or witnessing casualties or participation in or observation of casualty clearance atrocities or abusive violence.
Now as to that standard the applicant was engaged in a fire fight with the enemy, that is to say, was engaged with the enemy but more importantly became aware of an atrocity namely cannibalism by Japanese troops. One would think, to see the results of cannibalism would be a severe stressor in anybody's language.
We are therefore satisfied, given the reports of Drs Altman and Smith and indeed of Dr Butler that the applicant certainly, as at the application day, namely 1 November 1999, was suffering from a Post Traumatic Stress Disorder. We are further satisfied that that Post
IoreJ 13.09.01 P-6
©Auscript Pty Ltd 2001Traumatic Stress Disorder had its cause in the events which the applicant experienced and witnessed during his operational service.
That being so, the decision under review is set aside and the Tribunal substitutes its decision that the applicant suffers from a war caused Post Traumatic Stress Disorder and is entitled to pension for incapacity occasioned by that disease as and from the first day of August 1999. This matter will be remitted to the respondent Repatriation Commission in order that it might assess the rate at which a pension is properly paid.
IoreJ 13.09.01 P-7
©Auscript Pty Ltd 2001
0
2
0