Norris and Repatriation Commission

[2004] AATA 670

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 670

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/195

VETERANS' APPEALS DIVISION		)
Re		GLEN THOMAS THACKER NORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date29 June 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............(Sgd).................

O Rinaudo
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder – two stressors – one stressor arises from a serious breach of discipline or serious default or wilful act – section 9(3) prevents compensation for injuries arising from misconduct or default or wilful act – second stressor – no threat of death or serious injury – applicant did not react with intense fear, helplessness or horror – no reasonable hypothesis - affirmed

Veterans’ Entitlements Act 1986 s 9

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300

REASONS FOR DECISION

29 June 2004   Mr O Rinaudo, Member

1.      This is an application for review of a decision of the Veterans’ Review Board (the VRB) dated 17 December 2002.  The VRB decided to amend the applicant’s diagnosis of Bipolar Disorder to Post Traumatic Stress Disorder (PTSD) but otherwise affirmed the earlier decision of the Repatriation Commission of 24 January 2000, that the applicant’s psychiatric condition was not related to his war service.

2. The matter was heard on 8 June 2004. The applicant was represented by Ms Carter-Nicoll of counsel. The respondent was represented by Mr Williams, a departmental advocate. In evidence before the Tribunal were the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  Also in evidence were the following documents:

• Exhibit 2       Statement of the applicant dated 30 July 2003;

• Exhibit 3       Statement of the applicant, undated;

• Exhibit 4       Writeway report dated 19 September 2003;

• Exhibit 5       Writeway report dated 3 December 2003; and

• Exhibit 6       A medical report prepared by Dr Kingswell.

The following witnesses gave oral evidence at the hearing:

•      The applicant;
           •      Mr Ducker;

•      Mr Moystyn;

•      Dr Gibson; and

•      Dr Kingswell.

3.      The applicant rendered eligible operational service from 17 November 1958 to 21 November 1960.

4.      The applicant claims two events he experienced caused his current condition of PTSD.  It is necessary to describe the events as witnessed by the applicant.  For the sake of clarity I will refer to them as the “shooting incident” and the “friend Jack” incident. I will recount those events below. 

The Shooting Incident

5.      In relation to the first incident, the applicant says he was sent to practice firing with a sten gun.  He says in doing so he drove to a nearby abandoned village, Kampong.  While in Kampong he chanced upon a hut where he witnessed a woman of Chinese ethnic origin tied to a pole.  She appeared badly beaten and “cut up”.  Standing by her was a British officer, who, upon seeing the applicant, “gave him a bad time”.  The officer dared the applicant to shoot the woman.  The applicant did so.  The applicant says the officer then spoke about breaking Geneva conventions.  The applicant said he had thought he would be shot.

The “Friend Jack” Incident

6.      The applicant says while serving in the Army he became very good friends with a British Officer Linesman, “Jack”.  He says on one occasion Jack was beaten with batons by military police outside a café in Taiping.  Jack was “rescued” by a New Zealand patrol, and taken to some cells, presumably for his own safety.  While in the cells Jack slashed his wrists and was transferred to a hospital.  The applicant was assigned to guard him.  The applicant says Jack told him, “They would like me to finish the job [suicide] so they won’t have to ship me home”.

7.      It should be noted that in respect of the shooting Incident the applicant was given a warning by the Tribunal but chose to give evidence about the incident in any event.

8.      The Tribunal considered that the evidence of the applicant was inconsistent and vague.  The applicant changed his story particularly in respect of the British Officer being the one who was present at both incidents.  The Tribunal regarded the applicant’s evidence as unreliable at best.

The Law and Application

9.      The Tribunal must first consider the issue of diagnosis.  In this case the medical evidence was given by Drs Jenkins, Gibson and Kingswell.  Both Drs Jenkins and Gibson (who gave evidence) agree that the applicant is suffering from post traumatic stress disorder (PTSD).  Dr Gibson is the applicant’s treating doctor. Dr Kingswell’s diagnosis was of personality disorder from adolescence.  However he conceded that, “[i]f one is to accept Mr Norris’ account of the stressor, then I expect that it would properly fit the definition as intended in the Statement of Principles”.

10.     On balance the Tribunal is satisfied that the weight of medical evidence points to the applicant suffering from PTSD.

11.     The Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 laid out the approach which must be followed in these cases. Firstly the Tribunal must determine whether the material before it gives rise to a hypothesis connecting the injury with the service rendered. This test has a very low threshold: see Bushellv Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. I am satisfied there is an hypothesis connecting the applicant’s PTSD with his service.

12.     Next the Tribunal must ascertain whether an applicable Statement of Principle (SOP) exists.  Here there is: Instrument 3 of 1999 (as amended by 54 of 1999) deals with PTSD.

13.     The third step of Delidio requires the Tribunal to determine: does the applicant’s version of events ”fit” the SOP?  Proof of facts is not in issue at this point.  If the applicant’s story “fits” the SOP, then the hypothesis raised in the first step is reasonable.

Does the Applicant’s Story Fit the SOP?

14.     The applicant seeks to rely upon factor 5(a) of Instrument 3 of 1999.  That instrument relevantly states:

“The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder… with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”

15.     The key term is defined further in the instrument:

“‘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.”

16.     I also note that for the purposes of diagnosis paragraph 2(b)(A)(ii) of the SOP requires that the person’s response to the stressor involved intense fear, helplessness or horror.

17.     The question for the Tribunal is then: does either incident amount to a “severe stressor” within the meaning of the SOP?  I will deal with the shooting incident first, and then the friend Jack incident.

Incident 1: The Shooting Incident

18. For the moment accepting the applicant’s version of events, can the shooting incident amount to a “severe stressor”? I do not think that question needs be determined here. Section 9(3) of the Veterans’ Entitlements Act 1986 says:

“Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:

(a)     resulted from the veteran's serious default or wilful act; or

(b)     arose from:

(i)a serious breach of discipline committed by the veteran; or

(ii)an occurrence that happened while the veteran was committing a serious breach of discipline.”

19.     Section (1)(a), (b), (c) and (d) say:

“Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease…”

20.     About the incident, the applicant says in his statement (exhibit 2):

“The officer gave me a particularly hard time and dared me to shoot her.  I shot her.”

21. There can be no doubt this act represents a serious breach of discipline as contemplated by section 9(3)(b)(ii). Alternatively it is wilful default or a wilful act. In any event the effect of the section is to deny any compensation for illnesses or injuries that arising from the applicant’s breach. He applicant cannot rely on the shooting incident as a “severe stressor”.

22.     If I am wrong in my analysis of the shooting incident as wilful default, a wilful act or a breach of discipline, then it must be accepted that the incident satisfied the definition of severe stressor and the applicant’s story “fits” the SOP.  It would then be necessary to progress to the fourth step in Delidio.

23.     That step provides that the applicant must succeed, unless the respondent can prove beyond a reasonable doubt a necessary fact or facts stated by the applicant are not correct. Here, the respondent doubts whether the incident occurred.  They rely on two Writeway Reports (Exhibits 4 and 5).

24.     The first Writeway report, complied by Lieutenant Colonel Ducker, says:

“Both the applicant’s former Troop Comd and the Sig Sqn 2Ic were absolutely astonished to hear of this contention…and advised:

a. There is no way such a bizarre incident could have happen as the applicant would not have to obey such an unlawful encouragement…His proper course would have been to immediately report such an occurrence on his return…they were sure such a report was not made.

b. If the applicant was on dispatch rider duties he would have no reason to investigate any happening in a village.  The two former officers regarded the matter as fantasy.

c. There was a considerable state of law and order in the Taiping area at the time and any allegation involving murder or an unlawful command would have been investigated…”

25.     Lieutenant Colonel Ducker also gave convincing oral evidence at the hearing.  The Writeway report was supported by signed statements of officers who served in the same area at the same time as the applicant.  Personally I think it difficult to believe the applicant would not have reported the incident, particularly as he was ordered to commit the act by the hated British officer – the same who aided in the victimisation of his friend Jack.

26.     I regard the whole incident as described by the applicant as fanciful and unbelievable.

27.     I am satisfied that the respondent has proved beyond a reasonable doubt that the events as described by the applicant did not happen.

28. I therefore conclude, in relation to the shooting incident, that, if the Tribunal accepts the applicant’s version of events, section 9 of the Veterans’ Entitlements Act 1986 precludes him from seeking compensation for injuries that resulted or arose from his actions.  If I am wrong in this regard, I am satisfied the respondent can prove beyond a reasonable doubt the shooting incident did not happen.  The applicant cannot rely on the shooting incident to connect his PTSD with service.

Incident 2: the Friend Jack Incident

29.     Applying the third step of Delidio, can the applicant use this incident to “fit” the SOP? Does it amount to a “severe stressor”?  Facts are not in issue here.  The instrument provides:

“‘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 Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death;

(ii) engagement with the enemy;

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…”

30.     First it is necessary to examine the event.  If the applicant’s story is broken down, several potential stressors become apparent.  It is worth reproducing part of his statement here.

“Jack…insisted that it be his fight alone…Although Jack knocked down a couple of red caps initially, the patrol eventually beat him to the roadway with batons…Jack was saved from serious injury as a Kiwi RP patrol intervened and subsequently took him to the BDE HQ cells.  It was whilst in these cells that Jack slashed his wrists.  It was also in these cells that I and several of Jack’s mates were taken to see the blood splattering caused by the slashing…[Later at the hospital] I went with [Jack] to the ablution area.  He had pointed to a razor blade left on a shelf..and had said ‘They would like me to finish the job (suicide) so that they won’t have to ship me home to Blighty’.”

31.     I can discern three separate and distinct events here.  The first is when the applicant viewed Jack being beaten up by the ‘red caps’.  The second occurred when the applicant viewed the blood splattering caused by Jack slashing his wrists.  The third occurred when Jack pointed to the razor blade and said the red caps would like him to kill himself. 

32.     I do not think the applicant can rely upon Jack’s attempted suicide as a severe stressor.  The applicant did not witness the event.  He did not discover it until after it had occurred.  At that stage and Jack was out of danger of death.

33.     The Federal Court requires the Tribunal take a subjective/objective approach to severe stressors. In Stoddart v Repatriation Commission [2003] FCA 334 Mansfield J laid out the appropriate test. He said

“In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”

Stoddart was approved on appeal to the Full Federal Court: Repatriation Commission v Stoddart [2003] FCAFC 300.

34.     Regarding Jack being beaten by the ‘red caps’, I think this event falls far short of the sort of stressor contemplated by the instrument.  The applicant himself recounts, “Jack was saved from serious injury”.  Judged objectively from the point of view of a reasonable person, the sight of Jack being beaten up (although saved from serious injury by the New Zealand patrol) is not in my opinion an event capable of conveying the risk of death or serious injury. The applicant falls short of the objective element in Stoddart here.  In deed the applicant says that he and others were asked not ti intervene in the fight and did not.  If the applicant was as concerned for the safety of his friend as he says he was then why didn’t he intervene?  The logical conclusion is that the circumstances were no where near as bad as the applicant suggests.

35.     If the applicant is to be believed he wants the Tribunal to accept that Australian soldiers were the subject of brutal bashings at the hands of MP for no apparent reason.  This is simply unbelievable.  Where was the chain of command?  Where were the reports?  The Tribunal rejects this evidence.

36.     If I am wrong here, the applicant still cannot succeed using this event as a stressor because I am not satisfied he experienced feelings of intense fear, helplessness or horror at witnessing the event. The only reaction the applicant describes (in his statement) is, “I still regret not having given him at least some backup”.   Under paragraph 2(b)(A)(ii) of the SOP, the event cannot be relied upon to satisfy a diagnosis of PTSD.

37.     In the second event the applicant recalls seeing blood in Jack’s cell.  Again I do not think this event amounts to a severe stressor. The sight of blood, while doubtless very discomforting, must fall far short of the sorts of events contemplated by the instrument to qualify as severe stressors (see above).  For the sake of completeness, even if the event conveyed to the applicant the threat of death or serious injury to Jack, I do not think that if judged objectively from the point of view of a reasonable person with the applicant’s experience the event could have conveyed the requisite threat. Finally, I am again not satisfied the applicant experienced feelings of intense fear, helplessness or horror at seeing the blood. Under paragraph 2(b)(A)(ii) of the SOP, the event cannot be relied upon to satisfy a diagnosis of PTSD.

38.     In the third event the applicant witnessed Jack point to a razor and say, “They would like me to finish the job (suicide) so that they won’t have to ship me home to Blighty”.  This event does not satisfy the definition of severe stressor.  Perhaps the applicant had a fear Jack would attempt suicide again.  But accepting the applicant’s story on its face it is hard to come to even this conclusion.  Jack did not say he would try to kill himself.  Rather he said the ‘red caps’ wanted him to - a very different matter. So the conclusion that the event represents a threat of death or serious injury to Jack is hard to reach.  Also when you compare the event to those contemplated by the SOP (see above), it is clear it falls far short of the requisite standard.  I do realise the examples in the SOP are not exhaustive.  However they do in a general way represent the level of stressor required to satisfy the definition.  Again there is absolutely no evidence the applicant experienced feelings of intense fear, helplessness or horror at hearing Jack say this.  The event cannot be relied upon to satisfy a diagnosis of PTSD under paragraph 2(b)(A)(ii) of the SOP.

39.     None of the events connected to the applicant’s friend Jack meet the definition of severe stressor.  This means the hypothesis connecting the applicant’s PTSD with service is not reasonable.

Conclusion

40. The applicant cannot rely upon the shooting incident as a severe stressor and thus seek compensation. In shooting a civilian he enlivened section 9(3) of the Veterans’ Entitlements Act 1986.  That section precludes him from entitlement to compensation from any injury or illness arising from a serious default, a wilful act or a serious breach of discipline.

41.     The applicant’s version of events in regards to the “friend Jack” incident do not fit the SOP for PTSD.  The events do not meet the definition of severe stressor.  The hypothesis connecting the applicant’s PTSD with an event that occurred in relation to Jack is not reasonable.

42.     The decision under review must be affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:  Sarah Oliver

Associate

Date of Hearing   8 June 2004
Date of Decision  29 June 2004
Counsel for the Applicant         Ms Carter-Nicoll
Solicitor for the Applicant          Sciaccas & Associates
For the Respondent                  Mr Williams, Departmental Advocate