Organ and Repatriation Commission
[2004] AATA 671
•29 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 671
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/778
VETERANS' APPEALS DIVISION )
Re ALAN ORGAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date29 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd].....................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – psychiatric condition – diagnosis – applicant did not respond to events with intense fear, helplessness or horror – does not meet diagnostic criteria for PTSD – applicant suffering from anxiety disorder – no connection between anxiety disorder and war service – no reasonable hypothesis raised - decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 119, 120(1), 120(3), 120(4), 120A, 196A, 196B
Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136Woodward v Repatriation Commission (2003) 200 ALR 332
Stoddart v Repatriation Commission (2003) 197 ALR 203
Delahunty v Repatriation Commission [2004] FCA 309
Deledio v Repatriation Commission (1997) 25 AAR 396
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart [2003] FCAFC 300Re Budworth and Repatriation Commission [2000] AATA 127
REASONS FOR DECISION
29 June 2004 Mr IR Way, Member 1. This is an application by Alan Organ for review of a decision made by the Repatriation Commission on 30 October 2001 and affirmed by the Veterans’ Review Board (“VRB”) on 11 July 2002, that refused the applicant’s claim for war-caused post traumatic stress disorder (“PTSD”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T6) and other documentary evidence as follows:
Exhibit A1 Statement of Alan William Organ dated 12 November 2002
Exhibit A2 Statement of Brian O’Connor dated 1 December 2002
Exhibit A3 Statement of Peter Brian Schwarze dated 18 February 2003
Exhibit A4 Report of Dr Janis Carter dated 30 November 2002
Exhibit A5 Report of Dr Janis Carter dated 13 December 2002
Exhibit A6 Supplementary Statement of Alan Organ dated 7 May 2004
Exhibit R1 Writeway Report dated 1 March 2003Exhibit R2Supplementary Writeway Report dated 18 April 2003
Exhibit R3Supplementary Writeway Report dated 9 September
Exhibit R4Supplementary Writeway Report dated 25 November 2003
Exhibit R5Supplementary Writeway Report dated 26 November 2003
Exhibit R6Report of Dr Kingswell dated 21 May 2003
Exhibit R7Writeway Facsimiles (2) dated 20 May 2003
3. The applicant was represented by Mr RJ Anderson of Counsel, instructed by Terence O’Connor, Solicitor and the respondent was represented by Mr B Williams, Departmental Advocate. The applicant, Mr B O’Connor and Dr W Kingswell gave oral evidence. Dr J Carter, Mr P Schwarze, Lieutenant Colonel D Overstead Rtd, Major R Baldwin Rtd, Major J Tilbrook Rtd and Mr I Laurie gave evidence by telephone.
4. The applicant was born on 3 April 1945 and served in the Australian Army Corps of Royal Australian Signals from 30 June 1965 to 31 March 1986. Included in this service is a period of operational service in Vietnam from 18 November 1970 to 11 November 1971 and a period of eligible defence service from 7 December 1972 to 31 March 1986.
5. The applicant’s accepted service-related disabilities are:
§ Lumbar disc degeneration
§ Bilateral sensori-neural hearing loss and tinnitus
His non-service-related disabilities are:
§ Brachial plexus lesions (right)
§ Post traumatic stress disorder
He is eligible for treatment of PTSD (not service-related).
6. The principal issue in this matter is whether the applicant suffers from a psychiatric condition and, if so, whether any such condition is war-caused.
7. The applicant’s hypothesis is that he experienced severe stressors during his service in Vietnam such that he suffers from war-caused PTSD. The applicant’s claim is being pressed on the basis of his operational service and not on his eligible defence service. If the applicant’s claim is successful, a further issue which then arises is whether the applicant’s disability pension rate should be assessed at the Special Rate.
Legislative Framework
8. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(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;…”
9. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
11. The RMA has, pursuant to section 196B(2) of the Act, determined a Statement of Principles (SoP) in respect of PTSD, namely Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999). It is common ground between the parties, and the Tribunal accepts that this SoP is relevant to this matter.
12. The RMA has also determined an SoP in respect of Anxiety Disorder, Instrument No 1 of 2000, and the Tribunal is satisfied that this SoP may also be relevant to this matter.
13. Section 120(4) of the Act relevantly provides:
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
14. The Tribunal is satisfied that the standard of proof provided for by section 120(4) is to be applied in its consideration of the issue of whether the applicant suffers from a psychiatric condition (see Repatriation Commission v Cooke (1998) 160 ALR 17; Benjamin v Repatriation Commission (2001) 70 ALD 622; and Fogarty v Repatriation Commission [2003] FCAFC 136).
15. Section 119 of the Act relevantly provides:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
Applicant’s Evidence
16. In his written statement dated 12 November 2002 (Exhibit A1) the applicant describes three events which occurred during his operational service in Vietnam and which he claims resulted in his experiencing a severe stressor. These are as follows:
§ The Saigon Incident
“5. … I flew from Australia to Saigon airport in a chartered Qantas 707 aircraft. At that time, my unit was operating out of Saigon and remained in Saigon for about a month after my arrival before deploying to Vung Tau. Our accommodation in Saigon was at the Canberra Hotel. This incident occurred on the very first night of my arrival. A group of us decided to go out for a drink in the evening at a local bar. There was a curfew imposed for us Australian service personnel. We remained in the bar past the curfew time and I was becoming a bit anxious to return to the hotel. I was in a group of three or four soldiers. We decided to return to the hotel at about 11.00 p.m. and it was during our return trip that this incident occurred. We came across a crowd of Vietnamese people who were blocking the footpath. We could not walk around them because the vehicular traffic on the road was too heavy and dangerous. We therefore pushed our way through the crowd and we found that in the middle of the crowd on the footpath were the bodies of two Vietnamese civilians. My immediate impression was that these men had been shot by the local police only a very short time before our arrival. Sufficient time had passed for a white chalk mark to have been drawn around the bodies where they lay but the bodies themselves had not been covered. It was obvious to me that the men had been shot but it was the first time that I had ever seen a dead body. As I passed by them I was very close to the bodies. There were a lot of Vietnamese Policemen in the immediate area. These Policemen wore white uniforms and were known as the ‘White mice’. I subsequently heard that they had a reputation for shooting first and asking questions later and that was certainly my impression at the time, that is, that these men had been shot by the police in a brutal and callous manner.
6. My immediate response was to move away from the area as quickly as possible and that is what we did. I heard nothing further about this incident and it was not discussed between those of us that witnessed the dead bodies. I cannot say for certain who shot these men but it has always been my belief that it was the local police who had shot them and that it was an indication that in this war-torn country life was cheap. I also wondered what I was getting myself into. I still have visions of the white marks drawn around the bodies and the incident continues to be a source of distress for me.”
17. In his oral evidence the applicant said that, as best he could recall, the bar where he and four or five others went to was within walking distance, that he would have had four or five rounds of beer at the bar, that he was not drunk, that there were many people and cars on the street and that he could not avoid the bodies because it would have been “suicidal” to walk on the road.
§ The Pistol Incident
“9. I was rostered on only one occasion to lead a clearing patrol outside the perimeter fence. The patrol operated outside the wire at night but our preparations took place during daylight hours. During my entire time in Vietnam, I only led this one patrol. I do not recall receiving any weapons training (other then the SLR) prior to my departure for Vietnam. It is probable that I received some introductions to other weapons during our stint at Canungra Jungle Warfare Centre. It was traditional for all Australian units deployed to Vietnam to undergo jungle training prior to deployment. Nevertheless, my proficiency in weapon handling was poor. In respect to the browning 9 mm pistol which was normally only issued to Officers and Senior NCOs, my knowledge was almost non existent. I have no recollection of ever receiving any training on the browning pistol prior to this incident. Part of our pre patrol preparation was to test fire our weapons at the small arms weapon range within the camp. I had been given an F1 submachine gun and the diggers in the patrol were carrying SLR’s. However one Private had borrowed a browning pistol from a senior non commissioned officer and had test fired that weapon as well. It was highly irregular for him to have that weapon in his possession but I recall that he was very keen to fire it. After firing our weapons, it is standard practice to clear them to render them safe. We all did so but the Private who had the browning pistol encountered difficulties in clearing the weapon. There was some urgency for us to commence the patrol so that without really knowing what I could do to assist I asked the Private to give the weapon to me. I recall that he was trying to uncock the weapon by inserting his finger in the chamber to release the firing pin. At this stage of the clearing process, the magazine had been taken off the weapon and it should have been in the unload state. Before I accepted the weapon, I sought an assurance from the Private that it was unloaded and he gave me that assurance. I encountered the same problem that the Private had encountered. To gain more leverage I actually placed the barrel of the weapon against my belt, which meant the barrel was pointing towards my stomach. I can say that at no time during this process was I really confident that I was following the right procedure. If it had discharged during that process, I would have received a very serious wound to my stomach, which in the circumstances may have been fatal. Because of the urgency to get moving and my continuing difficulties in clearing the weapon, I decided to simply pull the trigger and I aimed it down range and pulled the trigger. A round discharged from the weapon. In that instant, my whole world stopped. I can still clearly recall my response. I was horrified that the weapon had been loaded during my clumsy attempt to clear it and that I had come so close to shooting myself and perhaps inflicting a fatal wound. That thought was immediately obvious to me and my response was spontaneous and intense. My physical response was to start to shake. However because of the circumstances of having to lead this patrol I was able to compose myself sufficiently to lead the patrol and I did so without further incident.
10. I did not report this incident because I knew that SNCO who lent the weapon to the Private would have been in trouble.”
18. With respect to weapon training he had received the applicant said he had been conscripted in 1965 and had received basic rifle training and had been shown other weapons. He said in his role as a technician in the Army weapons were not usually involved. He said his personal weapon in Vung Tau was the F1 SMG and he was not trained in the use of the 9 mm browning pistol. The applicant agreed that basic weapon training emphasised the need to never point a weapon at anyone unless you intended to shoot that person. He said he thought the pistol was not loaded as it was proper practise to hand over only unloaded weapons.
19. When asked why he had put his finger up the magazine cavity he said he had seen the soldier who had the weapon doing this and he followed his lead. He said that it was only subsequently that he found out that this was a technique to release the firing pin in a manner which would not damage the pin. On re-examination he said he was not sure when he had been told about finger-release of the firing mechanism. He said he never tried to pull the trigger while the gun was pointed at him as he knew enough about weapon safety not to pull the trigger.
§ The “Mutiny” Incident
20. The applicant’s written statement in summary is that on 19 May 1971 at 110 Sig Squadron lines in Vung Tau when he was rostered as the duty officer for the first time as a Sgt he was required to deal with a mutiny situation involving a large group of soldiers (about 50) who staged a protest on the unit parade ground against the Unit OC (Maj Overstead) due to discontent with the OC's orders that the “wet canteen” be closed and all soldiers confined to barracks (closed camp). The soldiers wandered around the parade ground shouting out their discontent with the Unit OC, they even carried placards expressing their discontent. He was ordered by the SSM to get the situation sorted out quickly, but did not receive any support from any of his superiors (i.e. the SSM, the 2 I/C or the OC). After an hour or so most of the soldiers dispersed, but a group of about 20 angry protesters relocated to a roadway and commenced to block inwards and outwards traffic from the unit.
21. When under physical threat from the angry ring leader (name not known to the veteran), the veteran (as the duty officer) produced his sidearm, a 9mm Browning Pistol and pointed it in the general direction of the soldiers and again ordered them to disperse.
22. The applicant described his response to this event in the following terms:
“15. By this time [being confronted by the ring leader] I was under considerable stress. I knew that what they were doing was wrong and that I had to take positive action. What I did I still consider to be an extraordinarily difficult act. I took out my sidearm which was a Browning pistol. I cannot say for certain that it was loaded but in all probability it was. I recall pointing it in the general direction of these soldiers but not at any particular one of them. I again ordered them to disperse. None of these men were armed but they outnumbered me 20 to 1.
16. I considered myself at risk of being physically overwhelmed by them if that was to be their reaction. Fortunately, their reaction was to disperse and return to their lines. By the time I made a decision to threaten these soldiers (most of them were my friends) with a loaded weapon, I was in a state of intense fear not only for my personal safety but for what I might have to do. It was of tremendous relief to me when the members dispersed. It is wrong to suggest that this incident was resolved by the intervention of my superior officers. That did not occur and I think that it was the ultimate act of drawing my weapon that convinced the men to end their protest. I repeat that I gained no assistance from any superior officer. I do not recall the wet canteen being reopened that day particularly as that would have been inconsistent with the OC’s style of management.
17. … My response to this incident was feeling quite helpless and inadequate to deal with it. This arose out of my inexperience as a Sgt generally but also my inexperience in dealing with what in my view constituted a ‘mutiny’. At all times, I was reluctant to engage the assistance of the Military Police because they would have had no discretion in how they dealt with the incident and it would have become legal, public and very controversial. Men who had been my close friends and associates would probably face serious disciplinary charges. For instance, these men had disobeyed my lawful command on at least two occasions and may have faced more serious charges in terms of their conduct as a group.
18. The second and third incidents have been the major sources of my subsequent distress over my experiences in South Vietnam.”
23. In his oral evidence, the applicant told the Tribunal that he was being treated by Dr J Carter (Consultant Psychiatrist who he first saw early in 2001). He said he had been prescribed anti-depressant medication once a week and that he was now seeing Dr Carter every week. He said he only took anti-depressants irregularly. He said he thought that consultations with Dr Carter had helped him in coping with his problems and that he had found the breathing techniques and exercises she recommended helpful.
24. In respect of not reporting the Saigon incident, he said that the incident had nothing to do with him and he not only felt he had no obligation to report the matter but also would have been stupid to report something that he experienced while he was breaking curfew. Also, in respect of there being no report of the incident, he told the Tribunal that he was with “old hands” who knew how to gain entry to their billet during curfew without being caught by the guards or duty personnel. In answer to questions in cross-examination, the applicant said he was also concerned that being caught out during curfew could result in disciplinary action and could prejudice prospects of his promotion from corporal to sergeant. The Tribunal notes that the applicant was promoted to temporary sergeant shortly after arriving in Vietnam.
25. With respect to not reporting the pistol incident, the applicant told the Tribunal that the person who had the pistol should not have had it and if he had reported the incident he would have got the soldier into trouble. The applicant could offer no explanation as to why the clearing patrol he conducted was not recorded in unit orders (as it should have been) nor was there any other record of the patrol. He said it was true he had gone on patrol, as he had stated, whether it was recorded or not. Insofar as the “mutiny” incident was concerned, the applicant said he had been told by the SSM not to report the incident. In respect of his carrying a 9 mm browning pistol during this incident, he said this was the weapon normally given to the duty NCO and that his senior officers would not have known he was not competent in the use of the weapon and they would have assumed he was trained to use the weapon.
26. The Tribunal notes that in his supplementary statement, the applicant, after reading the Writeway Research Service Report (Exhibit R1) stated:
§ That the type of patrol he conducted was an overnight standing patrol consisting of one NCO and four to six soldiers. (The Tribunal notes the Writeway Research Report stating that such patrols would not be put in the hands of other than an officer or a warrant officer – Exhibit R4).
§ That at the time of the “mutiny” incident he was not undertaking Duty NCO duties for the first time; and that the incident did occur on the one time he was rostered for duty on the weekend. The Tribunal notes that in respect of the dates in question, the first date suggested by the applicant of 19 May 1971 was a Wednesday and the date of 30 May 1971 recorded in the War Diary was a Sunday.
§ That Major (as he was then) Overstead was not in a position to know what weapon training he (the applicant) undertook.
§ That Major Overstead was not a witness to the “mutiny” incident and that Major Overstead’s evidence is speculative.
27. Peter Brian Schwarze, a retired Warrant Officer 1 and qualified Armourer provided a written statement (Exhibit A3) and gave oral evidence.
28. In his written statement, Mr Schwarze explained the purpose of a magazine safety and how it can be activated by inserting a finger into the magazine housing, depressing the magazine safety and pulling the trigger at the same time. He said that by doing this the hammer was released, strikes the firing pin and the pin would fire a chambered round. He said this was never a taught practice but was commonly used as a simple way of releasing the hammer without having to find a magazine.
29. The Tribunal notes that for the weapon to fire in these circumstances the applicant would have had to activate the trigger at the same time he depressed the magazine safety.
30. Mr Brian O’Connor is an Infantryman who served in Vietnam with 9 RAR in 1969 and who subsequently transferred to the Signal Corps and served with 110 Signals Squadron at Vung Tau at the same time as the applicant.
31. It was Mr O’Connor’s written statement that he arrived at 110 Signals Squadron on 19 May 1971, this being his first day in Vung Tau and he describes witnessing the members of the squadron at this time “kicking up a stink about the boozer being closed” and carrying placards and chanting. He said he would never forget the event.
32. In his oral evidence Mr O’Connor stated that he had put down 19 May as this was the date, shown in his AAB83, that he was posted to Vietnam. On further reflection he said he had actually arrived on 30 May just before midday and he explained the difference in dates being due to the record of 19 May in his AAB83 being a date on which an order had been raised posting him to Vietnam, and that the transit time it took him to move to Vung Tau resulted in his arriving there on 30 May 1971.
33. The Tribunal notes that the Writeway Research Service has reported (Exhibit R7) that the nominal roll of Vietnam veterans records Mr O’Connor serving in Vietnam in 110 Signal Squadron from 18 May 1971 to 26 February 1972; that CARO’s Record of Service for Mr O’Connor shows that he emplaned in Sydney on 18 May 1971 and deplaned in Saigon on Wednesday, 19 May 1971; that a movement nominal roll lists Mr O’Connor as one of the passengers on the defence charter jet departing Sydney 18 May and arriving Saigon 19 May 1971; and that, in normal circumstances, there is no troop movement by Caribou aircraft from Saigon to Vung Tau on Sundays.
34. Mr Tilbrook, Writeway Research Service, provided a number of written reports (Exhibits R1, R2, R3, R4, R5 and R7) and gave evidence by telephone.
35. In summary, Mr Tilbrook’s research could not locate any official reports or other corroborating evidence to support the applicant’s contention about the Saigon incident or the pistol incident. With respect to the latter, Mr Tilbrook agreed that it was possible that a patrol report could have been misfiled or misplaced. In respect of the “mutiny” incident, Mr Tilbrook’s research showed that on 19 May 1971 there is a record in the Unit War Diary of a practice security alert being “quite well done” between 16:30 hours and 16:55 hours, and that the Unit War Diary in respect of events on 30 May 1971 records:
“BLACK SUNDAY. RQMS had his pistol stolen. The SIB were called, the camp was closed, and all areas searched. I found evidence of drinking out of hours on the slopes of the sand dunes so closed the wet canteen and left the camp closed until late afternoon when a ‘deputation’ of soldiers picked up about 100 beer can and soft drink cans and approached me to open the canteen and camp. This was granted. A formal investigation into the loss of the pistol is underway. I also found an AK-47 rifle hidden in one of the bunkers.”
36. Mr I Laurie, a former member of the Provost Corps who served in Saigon and Vung Tau, provided a written statement (as part of Exhibit R2) and gave evidence by telephone. He confirmed that at the time of the Saigon incident a curfew of 11 pm applied at night to military personnel and that the curfew for civilian personnel commenced one hour later. He said he was not tasked to observe what the “White Mice” did but obviously, in carrying out his normal duties, he did on occasion observe their operations. He said he had never seen the Vietnamese Police outline bodies with chalk, the modus operandi being to investigate the circumstances of the situation and remove bodies as quickly as possible. From his knowledge of the area around the applicant’s BEQ in Saigon, Mr Laurie expressed the opinion that by 11 pm any traffic on the road in question was sparse and that in his view “it is unbelievable that the soldiers could not have avoided the crowd had they chosen”.
37. Mr Laurie, in summary, stated:
“…I did not hear of the incident Mr ORGAN has described, either officially or as Unit gossip. I can not say that the incident did not occur, but on balance of probabilities I find it hard to believe, as told, without independent and unbiased corroboration.”
38. The Tribunal notes that Mr Laurie confirmed making regular visits to BEQ Canberra and that any soldiers found breaking curfew would be picked up and taken back to the BEQ where the matter would be left in the hands of those in charge at the BEQ.
39. Major RH Baldwin Rtd, OC 110 Signal Squadron Saigon Detachment at the time the applicant was in Saigon, provided a written report dated 9 September 2003 and gave evidence by telephone.
40. He explained his role as principally ensuring continuing communications for Australian Force Headquarters in Saigon and that he had some 80 – 85 signal troops to give effect to this and that with shift work there was constant movement of soldiers on duty between the BEQ and the HQ AFV Complex. He said the system of control of soldiers in curfew time was not iron-clad and that he occasionally conducted bed checks. He said, in effect, he would not be surprised if soldiers broke curfew without being detected. He said he had no recall of the “White Mice” incident described by the applicant, but it was not an uncommon event to see bodies and that he had no recollection at all about the other two incidents described by the applicant.
41. Lieutenant Colonel DR Overstead Rtd provided a written statement (Attachment 4 to Exhibit R1) and gave evidence by telephone.
42. In his written statement Colonel Overstead said he could find no mention of the Saigon incident and stated that had it been reported or stumbled upon he would definitely know about it. In cross-examination Colonel Overstead said he would not be surprised if some of his soldiers broke curfew without detection and said he would not necessarily see such action as serious. With respect to the pistol incident, Colonel Overstead stated:
“Sgt Organ had the normal field training given to other NCOs in RA Sigs, which included Recruit Training, Corps Training, Regimental Training, Subject A Courses, monthly Range Practices at Vung Tau or Saigon, lectures on ‘Weapons Safety’, briefing for the patrol, and at all times access to other senior NCOs and officers should he have a problem. As I recall, he was generally regarded as a good soldier and NCO, and certainly had the problem-solving intelligence to fit in with our way of life as soldiers in South Vietnam.
110 Sig Sqn conducted weekly Range Practices, and it was expected that each man in the squadron would fire weapons at least once per month. The unit made available a selection of weapons additional to the SLR for familiarisation…F1, GPMG and 9mm pistol.
Sgt Organ gave no indication before or after the patrol that he was ‘anxious’ about the patrol, nor that he had discovered a soldier with a ‘borrowed’ pistol, nor that he had trouble clearing the pistol. He disregarded all military warnings that he should not point a weapon at himself or other people. This is basic and elementary knowledge for all soldiers.
We are all ‘anxious’ from time to time with new duties, but the responsibility of leading a small patrol in a relatively safe area, with few tasks to perform would be well within his capabilities. In fact he ‘composed’ himself and led the patrol successfully.”
43. In his oral evidence, Colonel Overstead confirmed that standing patrols were usually under the command of an officer while NCOs were in charge of clearing patrols and that it was standard practice for patrol members to test-fire weapons on the 25 yard range prior to operational deployment.
44. Colonel Overstead explained the system of unit and HQ reporting with respect to patrols and agreed that the applicant should be given the benefit of the doubt and that it should be assumed the patrol did take place and that any report of the activity had been lost with the passage of time.
45. In respect of weapons training, Colonel Overstead explained that it was standard operating procedure for each soldier to fire weapons once a month but to achieve this there were weekly range practices conducted by the SSM or an officer where SLR, F1, GPMG and 9 mm pistol were available to be fired. He emphasised that technical staff often had to carry heavy equipment and often would be armed with a pistol because of this. Colonel Overstead emphasised the point that no soldier in the Signals Corps would get to the rank of sergeant without knowing something about basic weapon handling and while it was possible the applicant had no experience with the pistol, in his view this was not likely. Colonel Overstead, while agreeing that accidental discharge was worthy of report, said he was not sure if disciplinary action would have been taken other than the applicant being severely spoken to, patrolling being a serious activity where the rules had to be obeyed.
46. Insofar as the “mutiny” incident was concerned, Colonel Overstead confirmed what he had written in the War Diary and further stated:
“On 30 May 71, WO2 Wardley my SQMS reported that his 9mm Browning Pistol had been stolen. I closed the camp and asked SIB (MP) Det Vung Tau to assist. All barracks and areas of the camp were searched without success. What we did find however, was liquor in the lines (contrary to Standing Orders), and that beer and soft drink cans had been thrown on the slopes of the surrounding sand hills. I closed the Wet Canteen to highlight the incident, particularly since drinking in the lines had resulted in drunken brawling once before, and apart from maintaining good discipline, in RA Sigs units, shift workers had to have their sleep. Later that afternoon a ‘deputation’ of soldiers carrying placards sheepishly approached me to state that they had cleaned up the rubbish, and to ask for the canteen to be opened. Actually we were all wearing smiles, and I was only too happy to open the ‘Sandbaggers Inn’. Since the search was over I also opened the camp at the same time.
All officers and NCOs were in the camp area that day. At no time would help have been more than 100 yards or a few minutes away. At one time Sgt Organ ‘waited an hour’ for people to disperse. I received no verbal or written report from him regarding this incident. (Nor from anyone else).
As for drawing his pistol on the men…I have not heard of this, and cannot believe that a soldier, let alone a senior NCO would do such a thing in view of his training. I am sure that ‘twenty or so’ soldiers would have spread the word that he had done this. He only had to say that he would contact an officer or the OC for them. This would have taken minutes. What was he doing ‘for about an hour’?
I believe that Sgt Organ was a much better NCO than he makes out to be thirty-three years later, and that his memory of day to day life in 110 Sig Sqn has eroded. To take but one point, contrary to what he says, I worked closely with Cpl Billings, the president of the ‘Sandbaggers Inn’ to remodel it as a Beer Garden, and celebrate its completion on 16 May 71.”
47. Colonel Overstead was vigorously cross-examined about his use of the words “Black Sunday”. He said this was simply an example of his “black wit”, and was emphatic that the incident of closing the club had been dealt with by all in a light-hearted and good-humoured way and that any suggestion that his use of the words “Black Sunday” implied that more had happened than he had recalled was not correct. He confirmed that the loss of a pistol was, however, a very serious event, there being some suggestion of “gun running” in the unit.
Medical Evidence
§ Preamble
48. It was common ground between the parties and the Tribunal accepts that the medical evidence before it supports the contention that the applicant meets diagnostic criteria B, C, D, E and F of DSM-IV for PTSD. In the first instance this matter is being contested on the question as to whether the applicant meets criterion A of the DSM-IV criteria for PTSD. The medical evidence set out below is directed towards this question and the diagnosis of the applicant’s psychiatric condition if criterion A is not satisfied.
§ Evidence of Dr J Carter
49. Dr J Carter, Consultant Psychiatrist, provided three written reports (T4/127-133, Exhibit A4 and Exhibit A5) and gave evidence by telephone.
50. In her written report Dr Carter relies principally on the pistol incident and the “mutiny” incident as traumatic events. She also attributes a detrimental effect on the applicant as a result of the Saigon incident.
51. Dr Carter opines that:
“…it can be seen that the veteran was exposed to two traumatic events where he experienced, witnessed and was confronted with events where his life was threatened, or at the very least, there was a threat of serious injury to him. His response to both these events involved intense fear, helplessness and horror. Please find enclosed corroborative evidence from somebody who served overseas with him for one of those incidents.
…
On his second day in Vietnam, when he was out at night, he found bodies that were shot by the white mice policemen, and this was his first confrontation of witnessing casualties. This, in addition to the other two stressors explained, had a detrimental effect on him. He feels he can still see the white lines around these bodies….
…
This veteran presents with three stressors for post traumatic stress disorder, almost killing himself with a subordinate’s gun after being given the wrong information about its loading, having to cope with the soldiers striking, and having to do services for which he was unprepared militaristically, and he had to turn on his men, and thirdly, witnessing casualties soon after his arrival in Vietnam. He developed the symptoms of post traumatic stress disorder, which have been complicated by substance abuse…”
52. With respect to her report of the applicant’s response to these events involving intense fear, helplessness or horror, Dr Carter, in answer to questions from the Tribunal about what she had recorded in her notes about the applicant’s response to each event, stated:
§The Saigon Event: The applicant said that while he was prepared as a soldier he was shocked on seeing the bodies (Dr Carter said her notes were not entirely clear on this matter).
§The Pistol Incident: The applicant became anxious and upset and made acutely aware of how he could have died.
§The “Mutiny” Event: The applicant was upset he had to draw his weapon, felt stupid and not very bright in acting as he did and started to judge himself in a condemnatory way.
53. When taken to Dr Kingswell’s report suggesting that the applicant suffered from anxiety disorder rather than PTSD, Dr Carter said she could not find fault with Dr Kingswell’s method of reasoning and accepted that this was his judgment. In so doing she said that anxiety disorder, while a separate diagnosis, was evident in cases where a person suffered from PTSD. When asked about there being the possibility of an element of fantasy or embellishment over time of the applicant’s recall of events, Dr Carter said the applicant did not strike her as a highly imaginative person and she was of the opinion that he recalls what he believes he saw and displayed distress in telling his story.
§ Evidence of Dr W Kingswell
54. Dr Kingswell, Consultant Psychiatrist, provided a written report dated 21 May 2003 (Exhibit R6) and gave oral evidence.
55. In his written report, Dr Kingswell opined:
“Mr Organ’s symptoms while having some resemblance to Posttraumatic Stress Disorder cannot be summarised as such. Posttraumatic Stress Disorder is the only diagnosis in psychiatry which demands a specific aetiology. Notwithstanding the doubt that Mr Tilbrook’s research cast over the existence of the stressors, the stressors are less than what is required for the development of Posttraumatic Stress Disorder, particularly career ending disabling, permanent Posttraumatic Stress Disorder.
Research supports the view that individual vulnerability is important but so to [sic] is the nature of the stressor. The more severe the stressor the greater the percentage of people exposed that are likely to be affected and the worse the outcome.
Mr Organ has described three events. In the first event he came across the scene of a shooting being attended to by Police. There was no mutilation of the two bodies. There was no subjective description of helplessness or horror. Mr Organ was exposed to a very common human experience that is not usually associated with Posttraumatic Stress Disorder. In the second event Mr Organ was confronted with his own mistake that might have, but did not have significant consequences. Mr Organ described an experience of no greater moment than forgetting to turn the power off before changing a lightbulb. These are common human experiences that pass without serious consequence.
The third event placed only Mr Organ’s subordinates in danger. The literature on Posttraumatic Stress Disorder developing in perpetrators of violent crime is sparse. However, the ‘Mutiny’ dispersed without incident and Mr Organ’s reaction was one of embarrassment rather than helplessness or horror. The latter is required for the diagnosis of Posttraumatic stress disorder in both DSMIV and the Statement of Principles No 3 1999.
Mr Organ’s symptoms are in my view best summarised as anxiety disorder not otherwise specified. This would capture Mr Organ’s social phobia and nightmares. However, the diagnosis requires evidence of social and occupational dysfunction. It is not clear that this is the case. Mr Organ is not working, but is busy managing the construction of his new home. Mr Organ has by his account never been involved in a busy social circle, community activities or hobbies. Much of the constraints he experienced he attributed to his lower back pain and his wife’s shift work. Mr Organ’s incapacity to work is apparently based on his incapacity to answer the phone, a task that could be competently managed by an electronic answering service.
I am not persuaded he is unable to conduct remunerative employment for more than eight hours per week.
If the Tribunal accepted that Mr Organ suffered from anxiety disorder not otherwise specified it would need to review the stressors described by Mr Organ in line with the Statement of Principles relating to that diagnosis. The events relied on by Mr Organ may well satisfy the definition of stressful event. However the issue of date on onset then arises. There is no evidence that Mr Organ suffered from a psychiatric disorder prior to a diagnosis being made by Dr Carter in 2000.”
56. In his oral evidence, Dr Kingswell reinforced his view about the claimed stressors not being of sufficient severity to meet the DSM-IV diagnostic criterion A and in so doing highlighted the description of diagnostic features for PTSD as set out in DSM-IV. Mr Anderson drew Dr Kingswell’s attention to the fact that the description of diagnostic features included “witnessing a dead body” as an example of a traumatic event. Dr Kingswell expressed surprise at this but accepted that the applicant seeing dead bodies fitted within the description. However, given the applicant’s response to the event, Dr Kingswell was still firmly of the view that in respect of the Saigon incident, criterion A was not met.
57. In the face of searching and comprehensive cross-examination by Mr Anderson, Dr Kingswell strongly maintained his view that the three stressful events, as described by the applicant, did not meet the DSM-IV diagnostic criterion A for PTSD. It is Dr Kingswell’s opinion that it was more likely than not that the applicant suffered from anxiety disorder, not otherwise specified. When asked about the clinical onset of the applicant’s psychiatric condition, Dr Kingswell expressed the view that this condition became clinically significant in late 2000. In so doing, Dr Kingswell acknowledged that the applicant was of the view that his psychiatric problems were rooted in his experiences in Vietnam in the early 1970s, but in view of the applicant’s ability to function effectively for some considerable time after this and there being no treatment for any psychiatric condition during this time, Dr Kingswell was firmly of the view that the clinical onset of the applicant’s psychiatric condition could not have been in the 1970s.
Submissions
58. Mr Anderson submitted that the Tribunal should prefer the opinion of the applicant’s treating psychiatrist in determining whether the applicant meets the diagnostic criteria for PTSD. In so submitting, Mr Anderson highlighted the fact that Dr Carter had seen the applicant on at least 80 occasions over recent years and was continuing to see him on a weekly basis.
59. In considering whether the applicant meets DSM-IV criterion A for PTSD, it was submitted that it was not necessary to rely on the DSM-IV preamble to the description of the diagnostic criteria and that the Tribunal only needed to be reasonably satisfied that criterion A, as stated, was met. It was further submitted, that in its consideration of whether the applicant meets criterion A, the Tribunal should accept the applicant’s account of events and that any question of proof of facts in respect of these events should be dealt with within the provisions of subsections 120(1) and (3) of the Act.
60. It was the applicant’s submission that all of the events, as described by the applicant, meet DSM-IV diagnostic criterion A for PTSD and that, in view of the respondent’s concession that all other diagnostic criteria for PTSD were met, the Tribunal should be reasonably satisfied that the applicant suffers from PTSD. That being so, applying the relevant SoP within the provisions of the Act, the Tribunal should accept that the material before it raises a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his service in Vietnam and the Tribunal should not be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s PTSD is war-caused.
61. In its consideration of this matter, the applicant referred the Tribunal to:
§Woodward v Repatriation Commission (2003) 200 ALR 332
§Stoddart v Repatriation Commission (2003) 197 ALR 203
§Delahunty v Repatriation Commission [2004] FCA 309
§Deledio v Repatriation Commission (1997) 25 AAR 396
§Repatriation Commission v Deledio (1998) 83 FCR 82
§Repatriation Commission v Stoddart [2003] FCAFC 300
62. Mr Williams, for the respondent, submitted that the Tribunal, in the first instance, needed to be reasonably satisfied that the applicant suffered from a traumatic event that meets the DSM-IV diagnostic criterion A for PTSD. In so doing, it was submitted that it was wrong not to look at all of the evidence in respect of the nature and extent of the claimed stressors.
63. It was submitted that the Tribunal should prefer Dr Kingswell’s opinion that the applicant does not meet the diagnostic criteria for PTSD, that he does meet the criteria for anxiety disorder not otherwise specified and that the clinical onset of this condition was in 2000. That being so, it was submitted that the applicant’s circumstances did not fit the template of the relevant SoP and that therefore the decision under review should be affirmed.
Consideration
64. At the outset, the principal issue is whether the applicant meets the diagnostic criteria for PTSD, as set out in DSM-IV. As already indicated, it is common ground between the parties, and the Tribunal has accepted, that this matter is contested on the question as to whether the applicant satisfies criterion A for PTSD. If the answer to this question is in the affirmative then it is agreed, and the Tribunal accepts, that the applicant does suffer from PTSD.
65. Criterion A for PTSD in DSM-IV states:
“(A) the person has been exposed to a traumatic event in which both of the following were present:
1.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.
2.the person’s response involved intense fear, helplessness, or horror.”
66. Mr Anderson, for the applicant, pressed the Tribunal to initially consider this matter on the basis of the accounts given by the applicant of the claimed traumatic events, leaving any findings of fact which might add to or detract from the applicant’s account to be dealt with in the application of the provisions of subsections 120(1) and 120(3) of the Act. The Tribunal rejects this submission and adopts what the Tribunal said in Re Budworth and Repatriation Commission [2000] AATA 127 in applying DSM-IV, namely:
“…it is the function of the Tribunal to determine facts. As there are necessarily facts required to be identified in approaching a diagnosis of this disorder [PTSD], I consider it legitimate to understand what those facts are and whether they are present in Mr Budworth’s case.”
67. Taking this approach, clearly the Tribunal needs to be reasonably satisfied as to the nature and extent of the claimed traumatic events in determining what weight to put on the opinions of Dr Carter and Dr Kingswell and whether the events fall within the description given in DSM-IV criterion A.
68. What the Tribunal said in Budworth (supra) about the nature of traumatic stressors envisaged by the authors of DSM-IV is also relevant. In Budworth the Tribunal said:
“59. The discursive part of the chapter dealing with post traumatic stress disorder illustrates the type of trauma which the authors consider a necessary substratum. As the name indicates, the disorder must occur not only after a traumatic experience but because of it.
60. The authors give the following diagnostic features:
‘The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganised or agitated behaviour) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).
Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury. Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts. Events experienced by others that are learned about include, but are not limited to, violent personal assault, serious accident, or serious injury experienced by a family member or close friend; learning about the sudden unexpected death of a family member or close friend; or learning that one’s child has a life-threatening disease. The disorder may be especially severe or long lasting when the stressor is of human design (e.g., torture, rape). The likelihood of developing this disorder may increase as the intensity of and physical proximity to the stressor increase.’
…
62. These features call for a number of comments. Firstly, the nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective ‘extreme’. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of ‘intense fear, helplessness or horror’. This is an extremely high level of reaction to extremely traumatic stressors.”
69. With respect, the Tribunal adopts the approach set out above. In its consideration of the claimed stressors the Tribunal has also taken into account the approach to be taken in such matters as set out in Stoddart and Woodward (supra). The Tribunal is mindful that while Criterion A for PTSD in DSM-IV and the definition of “experiencing a severe stressor” in the relevant SoP are separately described, nevertheless, as pointed out in Woodward (supra) the SoP, in respect of defining “experiencing a severe stressor” has, in effect, adopted a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialists. The Tribunal, therefore, has adopted the approach, as set out in the authorities referred to above, in its consideration of the meaning of “threat” and being “confronted with an event”. The Tribunal has also noted that the Federal Court has made it clear that a narrow meaning should not be put on the words “experience”, “witnessed” or “was confronted” and that a person may be “confronted with” an event that the person has neither experienced nor witnessed.
70. Turning then to each of the claimed stressors.
71. With respect to the Saigon incident, the Tribunal accepts that the applicant unexpectedly witnessed dead bodies on his first night in country. The lack of any official report or anecdotal report of this incident does not, in the Tribunal’s view, detract from the applicant’s account of what he saw. The applicant was returning to his billet at the time curfew for service personnel was imposed and the evidence points to the distinct possibility of his being able to effect his return during curfew without being officially recorded as breaking curfew.
72. As such, this event comes within the examples of traumatic events as given in DSM-IV. However, the event must be considered within the context of the applicant’s response at the time. He had been drinking with four or five fellow servicemen in a bar near his BEQ and while not drunk had consumed a number of beers and was returning on foot with his colleagues to his billet when he came across the bodies on the footpath. At that time local people and police were at the scene and the street was busy. On the applicant’s own evidence, his immediate response was to move away as quickly as possible and return to his billet. This he did without reporting what he had seen and it would appear without discussing the incident with anyone else.
73. The Tribunal accepts that the applicant was shocked to see dead bodies, as recorded by Dr Carter, and he wondered what he was getting himself into. However, these responses do not support a finding that the applicant experienced, witnessed or was confronted with dead bodies resulting in a response by him involving intense fear, helplessness or horror.
74. The Tribunal is reasonably satisfied that his subjective reaction of shock and concern about being in a war zone and seeing dead bodies does not fall within the PTSD diagnostic criterion A2 as set out in DSM-IV.
75. With respect to the pistol incident, again there are no official records or other corroborating evidence to support the applicant’s account of what happened on the firing range at Vung Tau. Nor are there any records which support the applicant’s claim to have been preparing for a local patrol and subsequently engaging in a local patrol. There is also some doubt as to the type of patrol which the applicant might have been conducting, whether it be a standing patrol or a clearing patrol. However, the applicant’s OC at the time, accepts that records might have been misplaced and that the applicant could well have been engaged in a patrol activity which entailed firing of weapons on the local 25 yard range prior to deployment on patrol.
76. Given the passage of time and the often encountered difficulty in finding relevant records, the Tribunal accepts the applicant’s accounts of what took place on the local firing range at Vung Tau. The question then is whether this event, as described by the applicant, resulted in his experiencing, witnessing or being confronted with an event that involved actual or threatened death and, furthermore, did his subjective response involve intense fear, helplessness or horror.
77. Clearly the applicant did not experience, nor was he confronted by actual death. It is difficult to see how he might have experienced, witnessed or been confronted with threatened death. On his own evidence, even though the pistol was pointed at him, at no time in his attempts to clear the weapon did he, nor did he ever intend to, pull the trigger. The evidence of the specialist armourer is that the trigger must be pulled for the firing pin to be activated. The Tribunal is satisfied that even though the applicant may have subsequently thought he could have shot himself, such an outcome was not a real possibility.
78. The Tribunal accepts that when the round in the pistol was discharged (harmlessly down range), the applicant’s response would have been as described by him. He said his whole world stopped; he was horrified the weapon had been loaded and he may have come close to shooting himself; his response was spontaneous and intense and he started to shake; however, he composed himself sufficiently to continue with his duties and lead the patrol. Dr Carter records the applicant as being anxious, upset and acutely aware he could have died.
79. The Tribunal has carefully considered the circumstances of the pistol event and accepts that the applicant (albeit misguidedly) thought he had come close to shooting himself and that his immediate reaction was as he described. However, given that the applicant’s actions could not have resulted in actual or threatened death and given that the applicant was able to compose himself and continue with his normal duties immediately after the event, the Tribunal is reasonably satisfied that the evidence does not support a finding that there was an objective traumatic stressor or a sufficiently intense subjective reaction of fear, helplessness or horror such that DSM-IV criterion A for PTSD is satisfied.
80. Turning then to the “mutiny” incident. The applicant initially claimed that this incident occurred on Wednesday 19 May 1971. However, subsequently, when presented with the Writeway Research Service Report which showed a Unit War Diary entry, recording, on Sunday 30 May 1971, an incident bearing some similarity to the event described by the applicant, the applicant said he accepted that the event occurred on 30 May 1971.
81. Mr O’Connor, a former member of the applicant’s unit, gave evidence corroborating the claimed event (on 19 May 1971, and subsequently 30 May 1971). It was Mr O’Connor’s emphatic evidence that the event he recalls occurred when he first marched into 110 Sig Squadron at Vung Tau. The Tribunal does not accept Mr O’Connor’s evidence that he actually first arrived in Vung Tau on 30 May 1971 rather than 19 May 1971.
82. The Tribunal accepts the official records before it which confirm that Mr O’Connor arrived at 110 Sig Squadron at Vung Tau on 19 May 1971. As such, his evidence corroborating the incident on 30 May 1971 is unreliable. The Tribunal notes that 110 Sig Squadron did practice a security alert on the afternoon of 19 May 1971 and it is more likely than not that Mr O’Connor’s recollection of events is confused because of this event occurring on his first day at Vung Tau.
83. On all of the material before it, the Tribunal is satisfied that an event involving a group of soldiers protesting about the OR’s club being closed took place in 110 Sig Squadron lines on Sunday, 30 May 1971. Much was made by the applicant of the Unit OC recording this as “BLACK SUNDAY” in his entry in the War Diary, the inference being that the event was much more serious than the War Diary entry shows. The Tribunal notes that the events at 110 Sig Squadron on 30 May 1971 centre around the very serious event of a pistol being reported as stolen and the subsequent closing of the camp to search for the weapon, and as a sequelae of this process, the discovery of unauthorised liquor (and empty cans) in unit lines and surrounds, leading to the OR’s club being temporarily closed. In this context the Tribunal does not accept the applicant’s submission that the use of the words “BLACK SUNDAY” gives rise to the inference that the OR’s club incident was of much greater significance than what was recorded in the War Diary and what was described by the Unit OC in his written and oral evidence.
84. The Tribunal accepts the Unit OC’s account of the incident and is of the view that the applicant’s recollection of events that occurred some thirty years ago lacks accuracy. The Tribunal notes that it was the applicant’s evidence that he was told by the SSM not to report the matter. This must be viewed in a light of a fact that the Unit OC did see fit to record the matter in the Unit War Diary.
85. The Tribunal is therefore satisfied that the “mutiny” event was an event that occurred as described by the Unit OC and as such does not meet criterion A of the DSM-IV diagnostic criteria for PTSD.
86. Following the above findings, the Tribunal is reasonably satisfied that the applicant does not suffer from PTSD. In arriving at this conclusion the Tribunal has not set aside the diagnosis of the applicant’s treating psychiatrist lightly. However, Dr Carter’s assessment of the traumatic events the applicant claims to have suffered, including his subjective responses, has not impressed the Tribunal and in this regard the Tribunal has preferred the assessment of Dr Kingswell.
87. The question before the Tribunal then is what is the applicant’s psychiatric condition.
88. It is common ground between Dr Carter and Dr Kingswell that the applicant suffers from an anxiety disorder and after consideration of all of the material before it the Tribunal is satisfied that such a diagnosis is correct. The Tribunal is also satisfied that the clinical onset of this condition was in 2000.
89. In considering whether the applicant’s anxiety disorder is war-caused, the Tribunal must consider whether there is a reasonable hypothesis connecting the applicant’s condition with his war service.
90. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 s196B(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 s120(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.”
91. In this case, the material points to the hypothesis that the applicant’s anxiety disorder is a result of his suffering severe psychosocial stressors during his service and Instrument No 1 of 2000, Anxiety Disorder, is relevant. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the applicant’s anxiety disorder with his service are set out in Instrument No 1 of 2000 as follows:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(vii)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or
(c) inability to obtain appropriate clinical management for anxiety disorder.”
92. Relevant definitions in the SoP are:
“Other definitions
8.For the purposes of this Statement of Principles:
…
‘clinically significant’ means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
‘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;”
93. After careful consideration of all the material before it and the submissions of both parties, the Tribunal is of the view that none of the relevant factors exist and that therefore there is no reasonable hypothesis connecting the applicant’s anxiety disorder with his war service.
94. In arriving at this conclusion the Tribunal, in the first instance, has assumed (without proceeding to make a finding) that at least one of the three stressful events described by the applicant is a severe psychosocial stressor. For the applicant’s claim to succeed, these stressors must have occurred within the two years immediately before the clinical onset of anxiety disorder and clearly this is not the case and any further consideration of the claimed stressors is not relevant.
95. In summary then, the Tribunal finds that the applicant does not suffer from PTSD, that he suffers from anxiety disorder and that his anxiety disorder is not war-caused.
96. It follows from the above findings and reasons for decision that the Tribunal affirms the decision under review.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDates of Hearing 20 and 21 May 2004
Date of Decision 29 June 2004
Counsel for the Applicant Mr RJ Anderson
Solicitor for the Applicant Terence O'Connor
For the Respondent Mr B Williams, Departmental Advocate
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