McKay and Repatriation Commission
[2005] AATA 254
•10 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/102
VETERANS’ APPEALS DIVISION )
Re RONALD McKAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date10 March 2005
Place Brisbane
DecisionThe Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder, alcohol dependence, and cardiomyopathy are war-caused with effect from 21 October 2001. The Tribunal remits the matter to the respondent for the assessment of the rate of pension payable.
.
................[Sgd]...................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war-caused injury during eligible service – whether applicant suffers from post traumatic stress disorder or other psychiatric condition – diagnosis of post traumatic stress disorder accepted – alcohol dependence and cardiomyopathy - decision under review set aside.
Veterans’ Entitlements Act 1986 ss 9, 120, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Re Martin and Repatriation Commission [2003] AATA 1128
Woodward v Repatriation Commission (2003) 75 ALD 420
Deledio v Repatriation Commission (1997) 47 ALD 261
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Hill [2002] FCAFC 192
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 74 ALD 366
Delahunty v Repatriation Commission [2004 FCA 309Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
WRITTEN REASONS FOR ORAL DECISION
29 March 2005 Ms M J Carstairs, Member 1. This is an application by Ronald George McKay (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 11 November 2003, rejecting the applicant’s claim for pension. The applicant originally claimed for cardiomyopathy. However, in the course of the decision-making in regard to the claim, the Repatriation Commission (the respondent) dealt with four diagnosed conditions: secondary cardiomyopathy, ischaemic heart disease, post traumatic stress disorder (PTSD) and alcohol dependence or abuse. The claim for ischaemic heart disease was granted. The applicant maintains that he should be granted pension in respect of the remaining conditions.
2. At the hearing on 9 March 2005 the applicant was represented by Mr Selfridge of counsel instructed by Sciacca’s Solicitors. The respondent was represented by Mr M Smith. The Tribunal delivered oral reasons for decision on 10 March 2005. The applicant has requested written reasons and these reasons answer that request.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as exhibits marked A1-A2 for the applicant and R1-R4 for the respondent.
BACKGROUND
4. The applicant is aged seventy-five years. He was educated to Grade 7 and left school at the age of thirteen. He served with the Royal Australian Navy (the navy) for ten years after enlisting in 1947 at the age of seventeen. It is not disputed by the respondent that the applicant has a period of eligible war service between 31 August 1951 and 22 February 1952 when the applicant served in Korea. This period is operational service for purposes of the Veterans’ Entitlements Act 1986 (the Act) and attracts a particular standard of proof for deciding a veteran’s entitlements to obtain benefits under the Act.
5. The issues for the Tribunal to determine are what is the diagnosis of any psychiatric or other medical condition from which the applicant suffers, and whether these conditions are related to his period of eligible war service.
EVIDENCE
6. In his claim for cardiomyopathy (T4) the applicant stated in answer to the question on the claim form: How do you believe your service caused or aggravated this disability? that it was due to stress during service which led to him turning to alcohol.
7. In his written application to the VRB in October 2002 (T3) the applicant said that he had commenced counselling with Dr Kar, psychiatrist. He stated that during his service in Korea he witnessed shelling including when a supply train was blown up and he saw bodies flung into the air. He said memories of his service return to him, particularly if he abstains from alcohol. He said he resumes his consumption of alcohol so that he can control himself. He said that he finds it hard to express himself and is embarrassed that he becomes emotional.
8. The applicant has consistently said that that he did not consume alcohol until he served in Korea when he was twenty-one years of age, though he acknowledged in his oral evidence some limited social drinking before that age. His alcohol consumption increased markedly during his service in Korea and he said that like others, he would smuggle alcohol on board ship when he took shore leave. He said that he drank in order to talk about things that would otherwise not be talked about, and he said that he drank in order to forget. He said that after he left the navy in 1957 he was able to keep some control over his alcohol consumption for a while but this did not last.
9. The applicant described the incident which he found to be stressful when he had witnessed bodies blown into the air during off-shore shelling of a train by HMAS Tobruk during the Korean tour of duty (the train incident). In a statement dated 16 April 2004 (exhibit A2) the applicant referred to this incident and said that HMAS Tobruk was located close in-shore. He said the train and railway repair crew who were engaged in mending railway lines, were bombarded from a distance of about 300 metres. He also referred in his written materials to other occasions (at least six) when HMAS Tobruk fired upon railway repair parties. He said that the death of civilians had played on his mind since then. In his oral evidence however the applicant said that during war there is no such thing as civilians and he considered that those working on railway lines were working for the enemy, because railway lines were supply lines.
10. In oral evidence the applicant said that as upper deck leading stoker he had a roving commission on the ship, was responsible for replenishing the ship’s fuel and water and had control of the ship’s pumps and he estimated that 50% of his duties were below deck and the rest on deck.. He said he was able to observe the train incident clearly from his position on deck. He said that the first salvo of heavier ammunition stopped the train; then the ship turned and moved in closer to the coastline. He said the train later was observed to move forward and firing recommenced with 44mm guns using open-sight firing.
11. In his statement dated 2 August 2004 he said that the train incident occurred in the early hours of the morning and when the train was hit there was an explosion because the train was carrying ammunition. He said that bodies were thrown up by the explosion. He said that he felt helpless and he ruminated about it afterwards. He said that he feels guilty about his helplessness in the train incident and this feeling of guilt has become more prominent in recent years.
12. The applicant gave oral evidence that the train incident was one incident occurring in a period of a few months during which HMAS Tobruk shelled the Korean coastline, railways, holding yards and villages. He said that the actions often went on for hours and he recalled one that had lasted a day and a night. Under cross-examination the applicant said that he was simply carrying out orders and accepted this. However he said that you did not want to talk about it.
13. The applicant said that he drank to forget. He now consumes about a bottle of spirits per day and approximately 6 beers.
14. The applicant said that he has had ongoing treatment for PTSD from Dr L Cameron, psychiatrist, and after Dr Cameron’s retirement, from Dr A Khoo at Toowong Private Hospital. He said that the respondent has paid for a PTSD course designed to deal with symptoms and he has obtained some benefit even though it brought his experiences back to him more vividly.
15. Mr A Brecht, Commodore RAN (ret) prepared 3 reports (exhibits R1-R3). In a report dated 7 July 2004 he said that his investigations showed that HMAS Tobruk carried out 35 shore bombardments of railway facilities and repair parties in the period 8 – 19 November and that the train incident may have occurred in that time and was most likely the incident recorded in HMAS Tobruk’s Record of Proceedings dated 1 December 1951:
The highlight was undoubtedly the complete destruction of a southbound goods train on the middle watch of Sunday, 18th November. On several previous occasions and once subsequently, trains after having been ‘winged’ escaped into tunnels and behind hills but on this occasion our rapid broadsides must have derailed a truck as the whole train stopped and we were able to destroy it and the engine at our leisure with 4.5” and 40 mm fire. We were amused subsequently to read in an Australian paper of the destruction of the train ‘with a single salvo’ – of 144 guns!
16. Mr Brecht had contacted Sir Richard Peek (Admiral Ret) who was Commander of HMAS Tobruk during its operations in North Korea. Mr Peek prepared a written statement (exhibit R3, attachment 1) in which he said that as a result of HMAS Tobruk’s bombardment on 18th and 19th November, the train was initially hit and brought to a standstill. The train crew fled. He said that later a team of North Koreans tried to push the train into a tunnel but fled when they were fired upon again by HMAS Tobruk. Mr Peek said that he observed people at the train but did not see any casualties.
17. In oral evidence, Mr Peek said that he did not have a good recollection of the distance of HMAS Tobruk from shore but said that his earlier view expressed to Mr Brecht that it was a distance of 3 miles was wrong. He said that he believed that they were a few hundred yards from the coast or at the most 1000 – 2000 yards. He said that as the coast line was mined, it was necessary to stay in water of a depth of 100 fathoms, and a 100 fathom line was charted along the coast. He said that there was a semi-circle indentation of the 100 fathom line in this area that enabled ships to approach closer to the coast. They had used this area of deeper water to approach closer to the coastline. He said that it was here, in the area of deeper water that HMAS Tobruk waited for the arrival of the train.
18. Mr Peek said that they could observe the approaching train by its smoke and waited about two hours for it to approach closer and traverse the coastline. HMAS Tobruk then fired upon the train, fire broke out on the train and people were seen escaping. He said that he directed that firing cease, but one of his men went on firing, stating that he had forgotten how to stop. Mr Peek said that after about an hour some of those who had escaped into the tunnel attempted to come out, and HMAS Tobruk engaged them with a further burst of fire.
19. Mr Peek said that he was using binoculars to observe from the bridge, and saw no casualties. He said that it was possible to see in the dark because the train was on fire, and there may have been moonlight.
20. In a report dated 2 August 2002 (T4, p29), Dr P Kar, psychiatrist diagnosed the applicant as suffering from PTSD and alcohol dependence syndrome. Dr Kar completed a Davidson’s PTSD questionnaire and formed his diagnosis in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) when concluding that the applicant suffers from PTSD. He said that at the first and second interviews with the applicant he was unable to take a satisfactory history because the applicant had been consuming alcohol before the consultation. At the third consultation the applicant was sober and answered more coherently.
21. Dr Kar stated that from the history it seemed that the applicant had the symptoms which would fulfil the criteria for PTSD as well as alcohol dependence, while stating this proviso:
As you know much of the assessment of PTSD is based on self-report. Description of symptoms is open to the problem of exaggeration, sometimes due to the greater focus on the abnormal experience
22. Dr Kar considered that the onset of both PTSD and alcohol dependence was about 1952. He said that the applicant drank excessive amounts of alcohol to cope with the stress and anxiety which the applicant perceived to be acute at the time. He said that the applicant’s prognosis was poor, on account of his serious heart condition, unless he undertook hospital-based alcohol detoxification. He said that there was a poor prognosis for the applicant recovering from PTSD
23. In a report dated 15 October 2004 (exhibit R1) Dr W Kingswell, consultant psychiatrist, stated that the applicant had an anxiety disorder with features of anxious concern and intrusive recollection of his service in Korea, which might be PTSD if the experience of a severe stressor were established on the facts. He also diagnosed alcohol dependence. He described the applicant’s prognosis as very bleak and said that recovery was not a realistic goal.
24. The applicant told Dr Kingswell about the train incident and said that he was upset after being exposed to this. He also reported a number of stressful incidents predating his service in Korea. The applicant told Dr Kingswell that he had sought medical help for his alcohol consumption in the late 1950s. However Dr Kingswell said that it was a clinically significant condition only from 1984.
CONSIDERATION OF THE ISSUES
25. Section 9 of the Act specifies the circumstances in which a veteran’s disease or injury is to be taken to be war‑caused. In particular s 9(1)(a), (b) and (e) apply:
9(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;
…….
(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;
26. For claims made after 1994, it is necessary to apply any relevant Statement of Principles (SoP). The SoPs are determined under s196B of the Act and s196B (14) sets out the relationships to service contemplated by the SoPs, which are essentially the relationships ultimately to be determined under s9 of the Act.
27. In respect of claims where a person has operational or war service, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war‑caused in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). …..
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
28. The SoPs raised in this case are those for PTSD, Instrument No 3 of 1999; for alcohol abuse or dependence, Instrument No 76 of 1998; and for cardiomyopathy, Instrument No 19 of 1998. The respondent agreed that if the claim as it relates to PTSD succeeds the other two conditions would follow. The Tribunal understands this to be on the basis that, firstly the SoP for alcohol dependence provides for two possible hypotheses in factors 5(a) and 5(b): suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence and experiencing a severe stressor within the two years before the clinical onset of alcohol dependence. The Tribunal agrees that it follows that if PTSD is accepted as related to service the other two claims succeed.
29. The relevant factor within SoP No 3 of 1999 for PTSD that must be related to service is set out in clause 5 of SoP:
(b)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
The SoP then provides in clause 8 (as amended by SoP No 54 of 1999) that:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as 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;
30. Mr Selfridge submitted that the Tribunal should accept Dr Kar’s evidence that the applicant suffers from PTSD and he referred to this diagnosis not being ruled out by Dr Kingswell. Mr Selfridge said that the train incident was capable of being the severe stressor required by the SoP for PTSD that would satisfy factor 5(a).
31. Mr Selfridge said that the hypothesis was that HMAS Tobruk at or around 18th November 1951 was engaged in active bombardment of the coastline and the applicant’s subjective perception of the train incident was of helplessness in the face of death of others. Mr Selfridge submitted that the Tribunal should accept the incident occurred as it had been corroborated by the ship’s commander and by the historical materials. He said that the train incident constituted a severe stressor, because it had the potential to result in death or serious injury and the applicant described feelings of helplessness. He said that the applicant was relatively young and this was his first experience of war. Therefore, the hypotheses were reasonable, and the applicant satisfied the third and fourth steps of Deledio.
32. Mr Smith submitted that the Tribunal should not accept that the applicant has PTSD as there was no severe stressor in which the applicant suffered fear helplessness or horror. He referred to Re Martin and Repatriation Commission [2003] AATA 1128 and said that the diagnosis of PTSD is based upon the severity of the stressor. He said if the applicant’s psychiatric condition is not PTSD then a diagnosis of generalised anxiety disorder may be appropriate as was suggested in Dr Kingswell’s report. As the Tribunal understood Mr Smith’s submission, it was that the applicant was part of a naval culture of heavy drinking and now, decades later, wants to find a cause that will link his conditions to war service. He said that the applicant’s memories are genuine but exaggerated; he could not have observed casualties and the train incident was quickly over.
33.
34. The first question for the Tribunal is that of diagnosis and on this issue the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed, on the balance of probabilities. No doctor was called to give evidence. The Tribunal takes into account that there is considerable agreement between Dr Kar and Dr Kingswell in their reports. Both agree that the applicant suffers from alcohol dependence, and that this is his major health problem.
35. The SoP for alcohol dependence ascribes a meaning to the term “alcohol dependence” and utilises the diagnostic criteria as specified in DSM-IV. Both Dr Kar and Dr Kingswell have confirmed the diagnosis of alcohol dependence and the Tribunal was satisfied that the applicant suffers from this condition. The Tribunal prefers Dr Kar’s evidence concerning clinical onset of alcohol dependence, and it accords with the applicant’s evidence that he attempted to get help for his drinking from medical staff even before he left the navy in 1957.
36. Both Dr Kar and Dr Kingswell agree that the applicant shows the necessary features of PTSD. Dr Kingswell said that the applicant had the pattern of symptoms for PTSD, whereas he said that the applicant’s symptom pattern was not entirely typical of generalised anxiety disorder. Dr Kar had the advantage of seeing the applicant on three occasions, whereas Dr Kingswell saw him once only. The Tribunal took into account the comments in Dr Kar’s report that it was only on the third occasion that he was able to take an adequate history from the applicant. The Tribunal also takes into account that the applicant is a person who has difficulty expressing his feelings and that a doctor who has the opportunity to see him more often will be in a better position to obtain a history.
37. PTSD is a condition where the factors of causation for the condition overlap with the diagnostic criteria for the condition. Nevertheless, in Woodward v Repatriation Commission (2003) 37 AAR 424, the Full Court (at 433) confirmed that the question of whether a person suffers from a particular condition is not affected by a Statement of Principles, even if that Statement of Principles 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 the applicant suffers from PTSD is to be assessed on the available medical evidence.
38. This case raised matters that have been considered by the Federal Court in Mines v Repatriation Commission [2004] FCA 1331. The Federal Court there said (at 48):
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD
39. The Tribunal is reasonably satisfied that the applicant suffers from PTSD and prefers the evidence of Dr Kar on this for the reasons given above. The Tribunal was satisfied that the applicant experienced a severe stressor in which he reacted with intense helplessness or horror, for reasons that are outlined further below .
40. Applying Deledio, the Tribunal is satisfied that the material points to hypotheses connecting the applicant's PTSD with the circumstances of the particular service rendered by him, the hypotheses being that spelled out by Mr Selfridge with its reliance on the train incident. As there is a SoP in force for PTSD, the first and second steps in Deledio are satisfied.
41. In respect of the third step, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP (Repatriation Commission v Hill [2002] FCAFC 192).
42. The Tribunal notes that the definition of experiencing a severe stressor in the SoP requires the occurrence of a particular kind or category of stressor but no longer requires, as had an earlier SoP, that the person’s reaction was that of intense fear, helplessness or horror as is required for the diagnosis of the condition itself in accordance with the DSM-IV criteria.
43. An analysis of the experiencing of a severe stressor, whether for diagnosis or within the framework of an hypothesis in the SoP itself, involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission (2003) 37 AAR 443 and Repatriation Commission v Stoddart [2003] FCAFC 300. In Stoddart, 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.”
44. The Tribunal notes the circumstances of the train incident and takes into account that oral evidence of Sir Richard Peak lent strong support to many aspects of the applicant’s version of the incident, even though earlier research had suggested otherwise. Both the applicant and Sir Richard Peek were present on HMAS Tobruk and at the end of the evidence it can be said that, not only did the train incident occur at the time that the applicant described, but the visibility was good enough, despite it being in the early hours of the morning, that they were able to watch the approaching smoke of the train for some two hours before it was within range of fire on the coastline. Sir Richard Peek acknowledged his error in his earlier estimate that HMAS Tobruk lay 3 miles off the coast and recalled that there was a dimple of deeper water closer to the coast where they lay in wait. He said that it could have been a few hundred yards up to 1000 – 2000 yards. He referred also to the first hit of the train, fire breaking out, and people escaping from the train and returning later when HMAS Tobruk engaged with a second burst of firing upon those who emerged from the tunnel.
45. In short there were substantial similarities in the applicant’s and Sir Richard Peek’s versions. Sir Richard Peek said he did not see casualties. Given all the circumstances, including the train being on fire and Sir Richard Peek saying that there was a delay after his call to cease fire, it is not ruled out that casualties would have occurred. He gave evidence about visibility which included that smoke could be observed and he could see the figures of people leaving the burning train and re-emerging from the tunnels. The Tribunal accepts the applicant’s evidence that the light was sufficient to see, supported as it was by Sir Richard Peek’s opinion that it may have been because of light from the burning train or by reason of moonlight. In the end it is the applicant’s experience that must be focussed upon to determine the claim.
46. The Federal Court cases make plain that it is the person’s subjective experience in the context of the occurrence of an objective incident that must be taken into account. As the Court said in Delahunty v Repatriation Commission [2004] FCA 309 in applying Woodward it is necessary to first ascertain the objective event and then have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. The court went on to say that the existence of stress will depend on the particular personality and that there may be cases where one person finds something extremely stressful that another person does not. As the Court said in Delahunty: considerable latitude must be extended when considering whether a person has experienced a severe stressor.
47. At the fourth step the Tribunal is required to make findings of fact. The Tribunal accepted the applicant as truthful in recounting his recollection of events that occurred some time ago. Section 120(1) provides that the claim will be granted unless it is shown beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s PTSD is war-caused within one of the provisions for causation provided in s9 of the Act.
48. In regard to the fourth step in Deledio, pursuant to s120(1), after having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s PTSD is war-caused. Under s120(1) the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved inconsistent with those raised by the hypothesis. The applicant’s case rests on the impact upon him of observing the train incident and the effects on him. He said in his evidence that when he joined up, Australia was not at war and he did not expect what happened to him in Korea. The applicant’s evidence in regard to the train incident (and the wider hypothesis of experience on a number of occasions where they carried out bombing of the Korean coastline and civilian facilities) is supported in important points by the historical research. The Tribunal accepts the applicant’s evidence that he saw casualties of either the bombing of the train or the subsequent fire and explosion that he says took place and that he felt helpless. Sir Richard Peak did not see casualties but his evidence of what he saw on its own does not provide a basis on which to find that facts supporting the hypothesis are disproved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1.
49. The Tribunal was not satisfied beyond reasonable doubt that there are no sufficient grounds for granting the claim for PTSD, as based upon train incident. It follows that the claims for alcohol dependence and cardiomyopathy also succeed.
DECISION
50. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s PTSD, alcohol dependence, and cardiomyopathy are war-caused with effect from 21 October 2001. The Tribunal remits the matter to the respondent for the assessment of the rate of pension payable.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed:Camille Banks
Associate
Date/s of Hearing 9 March 2005
Date of Decision 10 March 2005
Date of Written Reasons 29 March 2005
For the applicant Mr J Selfridge of Counsel
For the respondent Mr M Smith, Departmental Advocate
0
12
0