O'Leary and Repatriation Commission

[2002] AATA 583

DECISION AND REASONS FOR DECISION [2002] AATA 583

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2001/225

VETERANS' APPEALS DIVISION

Re:         NOEL O'LEARY
  Applicant
  And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             15July 2002
Place:            Perth
Decision:      The Tribunal affirms the decision under review.

……….(sgd G. D. Friedman)……….

Member

VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - irritable bowel syndrome - incident during naval shore patrol - whether war-caused

Veterans' Entitlements Act 1986 ss9, 119(1)(h), 120(1), 120(3), 120(4)

Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

15July 2002  G.D. Friedman, Member

1. This is an application by Noel O'Leary (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 4 May 2001.  The VRB affirmed decisions of a delegate of the Repatriation Commission (the respondent) dated 11 May 1999 and 12 May 1999 that post traumatic stress disorder (PTSD) and irritable bowel syndrome respectively were not war-caused.

1. At the hearing of this matter on 11 July 2002 the applicant represented himself and Mr C. Ponnuthurai, advocate, represented the respondent.

1. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with one exhibit lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1).

BACKGROUND

1. The applicant was born on 20 September 1947.  In 1963 he enlisted in the Royal Australian Navy (the navy) and was discharged in 1983 with the rank of Petty Officer.  He served on various ships and naval bases in Australia and overseas.  He served on HMAS Melbourne as follows: Far East Strategic Reserve from 24 February 1965 to 7 April 1965 and from 21 April 1965 until 7 May 1965, and deemed allotted for service in Vietnamese waters from 31 May 1965 to 22 June 1965. These periods of service were considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act).  His service from 7 December 1972 to 6 July 1983 was considered to be eligible defence service. 

1. On discharge from the navy the applicant found employment in a variety of fields and worked as a courier, hydraulics engineer, real estate agent, aircraft engineer, fencer and taxi driver.  In early 1988 he sought medical advice after recognising that he was unable to relate well to other people and that he suffered from bowel problems.  He was diagnosed with PTSD and irritable bowel syndrome.

1. On 5 April 1998 the applicant lodged an application with the respondent for disability pension for incapacity from PTSD.  On 11 May 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 25 November 1998 the applicant lodged an application with the respondent for disability pension for incapacity from irritable bowel syndrome.  On 12 May 1999 the respondent refused the application on the grounds that the condition was not war-caused.  On 4 May 2001 the VRB affirmed the decisions of the respondent.  On 15 June 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB.        

EVIDENCE

1. The applicant told the Tribunal that his claimed conditions arose principally from an incident that occurred in May 1965 (the incident) when he was serving on HMAS Melbourne which was escorting the troopship HMAS Sydney.   He said that the Melbourne was anchored off Subic Bay in the Philippines and he was on duty.  He stated that he was sent ashore as part of a joint Australian/United States shore patrol consisting of himself and four U.S. naval personnel.  He said that after several hours the patrol drove into a disreputable part of Olongapo, near Subic Bay.  They were in an area that was dark and was normally off-limits to naval personnel.  He was unarmed, but said that there were pump-action shotguns in the vehicle.

2. The applicant stated that two of the Americans left the vehicle and soon the patrol found itself involved with an aggressive crowd of 20 to 30 Filipino nationals who were advancing on the vehicle.  He said that the leader of the patrol ordered him to shoot into the crowd, so he grabbed a pump-action shotgun from the vehicle and began firing.  He stated that in the space of 10 to 15 seconds he had emptied his magazine.  He said that the patrol immediately left the area and returned to the naval base, and he was told by the patrol leader to say nothing about the incident, or risk being sent to a Filipino gaol.  He was then returned to his ship at around 2.30am.

1. In answer to questions the applicant said that he was unaware whether he had aimed at the civilians or whether he had killed or wounded anyone.  He was unable to recall the reasons for the presence of the civilians at that time of night or why they were acting aggressively.  He did not know whether they were armed or whether the crowd dispersed after the shooting started.  He did not appear to have been threatened directly.  He did not state whether he was in fear for his safety or the safety of the other members of the patrol.  At no time afterwards was he aware of military or civilian reports of the incident or of civilian casualties.

1. The Tribunal was told that the applicant kept the matter to himself out of fear of the consequences, and because he felt obliged to follow orders that were given by a superior.  He said that he tried to suppress the matter and managed to put it out of his mind for more than twenty years before he began to suffer from flashbacks of the incident, nightmares and depression.  He stated that shortly afterwards he began to suffer from bowel problems.  He said that he takes medication and his condition has stabilised.  He told the Tribunal that he has received emotional support from Vietnam veterans, but was now reluctant to visit crowded places or to have contact with people of Asian appearance.

1. In a written report dated 16 January 2001 Commodore P. Mulcare of Writeway Research Service stated that there were no documents to confirm that the applicant was a member of a shore patrol on the night of 30 May 1965.  Attached to his report was a statement dated 9 January 2002 by Lieutenant Commander W. Lees who was the Officer in Charge of the shore patrol from HMAS Melbourne on the night before the incident.  In the statement Lieutenant Commander Lees said that procedures for shore patrols included a requirement that confrontation of any kind with local Filipinos was to be avoided.  He added that the firing of a weapon, however justified, would not have gone unreported or unwitnessed, and a consequential investigation would have occurred, and he expressed the view that, after the midnight curfew, there would not have been the mass of humanity around.

12. In oral evidence Commodore Mulcare agreed that it would be almost beyond belief that a significant event such as this would not be reported or investigated.  He said that in such patrols non-American personnel would not normally be issued with weapons or be expected to use them.

13. In a written statement dated 24 November 2001 attached to Commodore Mulcare's report, Reverend P. Knife, who was in charge of the shore patrol of HMAS Sydney in Subic Bay in 1965, said that the American shore patrol personnel would never hand their weapons to foreign sailor.  He did not dismiss the applicant's claims as impossible, but stated that shore patrols were not armed with shotguns.  He also stated that could not ever imagine a shore patrol opening fire on local Filipinos.

14. In a statement dated 2 May 2002 in support of the applicant, Mr F. Letchford, former naval police officer, said that vehicles used in shore patrols in the mid 1960s carried pump-action shotguns and that Australian representatives were chosen from the duty watch, regardless of rank.  He stated that at that time sailors were expected to obey orders without question.

1. In a written report dated 8 September 1998 Dr P. McCarthy, consultant psychiatrist, confirmed the diagnosis of PTSD, and stated that the applicant has become generally emotionally and socially withdrawn.  He also noted a medical history of bowel difficulties.
   CONSIDERATION OF THE ISSUES

1. Mr Ponnuthurai submitted that the incident, if it occurred at all, took place on 30 May 1965, and the application by the applicant could only be considered by the Tribunal if the Tribunal concluded that the incident occurred after midnight, which would bring it within the applicant's period of operational service under s9 of the Act.

17. After considering all relevant matters the Tribunal accepts that the applicant was a member of a shore patrol in the Olongapo area and that he returned to his ship at about 2.30am on 31 May 1965.  The Tribunal is reasonably satisfied that the incident occurred after midnight on 30 May 1965, so the Tribunal finds that it took place during the operational service by the applicant commencing on 31 May 1965.

18. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.

19. As the applicant had rendered operational service, s120(1) and s120(3) of the Act apply and the Tribunal must determine that each condition was a war-caused condition unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

20. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force.  Mr Ponnuthurai stated that there was no dispute between the parties that the applicable SoPs were Nº 3 and Nº 4 of 1999, as amended by Nº 54 and Nº 55 of 1999 concerning PTSD, and Nº103 and Nº 104 of 1996 concerning irritable bowel syndrome.

1. Under the third step, if an SoP is in force, the Tribunal must then form an 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.  If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.  The applicant submitted that the hypothesis fits within the template and is reasonable, and he relied on his oral evidence, the statement by Mr Letchford and the medical report from Dr McCarthy. 

1. Under the fourth step the Tribunal must consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the condition was not war-caused. This step requires the Tribunal to make findings on questions of fact. The applicant submitted that when the facts were applied there was sufficient material before the Tribunal to find that the relevant conditions were war-caused.

1. Mr Ponnuthurai submitted that the Tribunal should accept the material contained in the report from Commodore Mulcare and the statements from Lieutenant Commander Lees and Reverend Knife that it is highly unlikely that on 31 May 1965 the applicant was exposed to a severe stressor as defined in the relevant SoP.  Mr Ponnuthurai said that in this event the applicant would be unable to satisfy factor 5(a) of the SoP for PTSD, and that as a consequence he would be unable to satisfy the relevant factor in the SoP concerning irritable bowel syndrome.

1. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

1. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease or condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant.

1. In respect of the second step, the Tribunal finds that SoPs Nº 3 and Nº 4 of 1999, as amended by Nº 54 and Nº 55 of 1999 concerning PTSD, and Nº103 and Nº 104 of 1996 concerning irritable bowel syndrome, determined by the Repatriation Medical Authority, are relevant and in force.

1. In respect of the third step, there was no dispute between the parties and the Tribunal accepts that, having regard to the medical diagnoses, the applicant suffers from PTSD and irritable bowel syndrome.  The Tribunal finds that the hypothesis identified in the first step is consistent with the template to be found in the SoPs and is a reasonable one.

1. In respect of the fourth step concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, in applying the facts the Tribunal finds that the applicant was a member of a shore patrol in Olongapo on the night of 30 May 1965 and the morning of 31 May 1965.  The Tribunal takes into account the evidence of Commodore Mulcare, Lieutenant Commander Lees and Reverend Knife concerning the likelihood that a serious incident involving the use of firearms against civilians would be reported to military authorities and would be investigated.  The Tribunal takes into account the statement by Mr Letchford concerning the carrying of shotguns by shore patrols.

29. The Tribunal also takes into account the evidence by the applicant and that there is no evidence corroborating the applicant's version of events, no witnesses have come forward, there was no known report or investigation of the incident, there is no evidence about whether shots were fired at civilians by the applicant or other personnel, there is no explanation for the presence of a large group of civilians on the street late at night, or for the claim that the crowd was aggressive.  There is no credible evidence that the applicant witnessed casualties, if any, or that he or other members of the patrol were in danger of attack by the crowd or was threatened.  Apart from the recollection by the applicant that was revealed by him more than twenty years after the incident, there is no evidence that firearms were discharged.

1. The Tribunal takes into account the passage of time and the provisions of s119(1)(h) of the Act in relation to the applicant's recollection of the incident. However in all the circumstances the Tribunal is satisfied beyond reasonable doubt that the applicant does not satisfy the fourth step. Therefore the hypothesis cannot be sustained and the Tribunal finds that PTSD was not war-caused as set out in s9 of the Act.  For this reason the Tribunal finds that Irritable Bowel Syndrome was not war-caused.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the fifteen [31] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)      Jason Lim
               Associate

Date of hearing:  11 July 2002
Date of decision:  15 July 2002
Advocate for applicant:            Self-represented

Advocate for respondent:        Mr C. Ponnuthurai 

Repatriation Commission