PAUL MALCOLM DIGNON and REPATRIATION COMMISSION
[2009] AATA 245
•15 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600179
VETERANS' APPEALS DIVISION ) Re PAUL MALCOLM DIGNON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P L Reilly AO (Member)Date15 April 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision of the Repatriation Commission dated 21 November 2005 in respect of post-traumatic stress disorder and alcohol dependence and in place of that decision determines that the conditions of post-traumatic stress disorder and alcohol dependence are war-caused with effect from 17 March 2005. The Tribunal remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to pension in accordance with these reasons.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that post-traumatic stress disorder and alcohol dependence were war-caused – consideration of Statements of Principles – encountering decapitated bodies – being caught in a civilian riot – decision under review set aside
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 20, 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Bushell v Repatriation Commission (1992) 175 CLR 408Byrnes v Repatriation Commission (1993) 177 CLR 564
Statement of Principles Instrument No 5 of 2008
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 1 of 2009
Statement of Principles Instrument No 76 of 1998REASONS FOR DECISION
15 April 2009 Mr J G Short (Member)
Professor P L Reilly AO (Member)1. Paul Dignon was engaged in operational service in East Timor from 23 February 2000 until 4 June 2000. On 17 June 2005 he lodged a claim for acceptance of conditions now diagnosed as post-traumatic stress disorder (PTSD) and alcohol dependence. The Repatriation Commission (the Commission) determined that PTSD and alcohol dependence were not relevantly related to service and on 11 April 2006 the Veterans’ Review Board (VRB) affirmed that decision.
issue before the tribunal
2. The issue before the Tribunal is whether the above conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept the diagnoses of Mr Dignon’s conditions and on the evidence, this Tribunal finds accordingly.
3. It is common ground that if Mr Dignon is successful in his claim, the earliest date of effect pursuant to s 20 of the VE Act would be 17 March 2005.
background
4. Mr Dignon first enlisted in the Australian Army on 9 April 1980. He is still a member, although not active, of the Army Reserves. His period of operational service in East Timor from 23 February 2000 until 4 June 2000.
5. Mr Dignon asserts, in essence, that certain events occurred during his operational service, and caused the conditions upon which his claim is based. He relies on the following incidents.
riot incident
6. Mr Dignon said that he had been deployed to East Timor as a corporal. His role was as the receptionist for the theatre of war. In that role he controlled the traffic of people in and out of East Timor. While in East Timor he drove a United Nations (UN) marked white land cruiser. He said that he could not recall the exact date. However, he believes that on a Sunday in about April 2000 he, in company with Corporal Susan Laurence, Corporal Stephen Nash and public servant Hugh Harvey decided to go out and about in Dili. Mr Dignon was the driver. He eventually drove to a T-junction in front of the Dili Cathedral. He said that he intended to turn right, however he could see a blockade of what he considered to be Portuguese soldiers in riot gear at the next intersection. He said there were a number of people milling about at the time. He said that the Portuguese soldiers appeared to be packing up and leaving and that as they did so, many Timorese people came out into the street in the vicinity of Mr Dignon’s vehicle. He said that as some of the people entered the street they picked up weapons, including picks and other road repair equipment from a site near the Cathedral. He said that a number of the people appeared to be natives who had been living in the hills.
7. Mr Dignon believes that the people were angry because they had been promised work and when that did not eventuate they blamed the UN. He said that the crowd was aggressive and carrying weapons, including swords, machetes and anything else they could lay their hands on. He said that when they approached his vehicle, he attempted to perform a u-turn but was unable to do so. He said that he saw a Timorese man who appeared to be a leader and held a sword. He said that this man struck Mr Dignon’s car. Other people then started hitting the vehicle.
8. Mr Dignon said that Corporal Nash aimed his weapon at the man. Mr Dignon ordered him not to shoot unless he was struck. He eventually managed to get his vehicle free of the crowd.
9. Mr Dignon said that he travelled in an easterly direction towards the UN compound and that on the way, he encountered an American soldier. He told the soldier to get in the vehicle and then proceeded to what appeared to be a second police blockade. Mr Dignon said that he recognised a man by the name of Miller who was the Commissioner of Police at the time. He asked if he could proceed through the blockade, but was refused. He did manage to leave the American soldier with the blockade and then took another street and headed back towards his compound. He said that by the time he arrived at the compound it was dark. A Lance Corporal had kept dinner for them. He said that he told the Corporal what had happened and that the Corporal had told him to put in an incident report. Mr Dignon said that he could not do that. He said that he was “extremely shaken by the experience and anxious”. Mr Dignon said that he had his dinner and then started drinking. He became very drunk. Mr Dignon said that thereafter he drank to excess and continues to do so.
10. Mr Dignon said that he believed the other three occupants of his vehicle had submitted an incident report. Mr Dignon said that immediately after the incident he began experiencing symptoms of PTSD. He became irritable and abusive towards colleagues and family. He said that at the time of the riot he was very scared as he did not know what was going to happen.
decapitated bodies
11. Mr Dignon said that in about February 2000 he had been in charge of a patrol. He patrolled past the Field Supply Station and noticed that children, who normally milled around the gates looking for lollies, were absent. Mr Dignon continued his patrol. Further on down a dirt road, he noticed a group of police and civilians. He spoke with the Assistant Police Commissioner whom he described as an Irish lady. He offered her assistance. A police officer told him not to come any closer and that everything was fine and to move on. Mr Dignon said that as he spoke, he noticed the decapitated body of a child lying in the middle of the road. As he moved further along the road he came across another group of people. Again he was able to observe a decapitated child. In other evidence Mr Dignon said that he may have seen between 2 and 10 decapitated bodies.
12. At the hearing Mr Dignon said that he was now unsure whether the bodies he had seen were the bodies of children. He said that the Timorese were small people and that the bodies may have been adults. Mr Dignon said that he felt horrified by the sight.
13. Mr Dignon said that he did not discuss his observation of decapitated bodies with any of the other members of his patrol and does not know whether any of the other members also saw the bodies. He said that on his return to the compound he told a Warrant Officer what he had seen and that the Warrant Officer’s response was “Okay”. He said that the Warrant Officer had also said that it was commonplace to find bodies.
other witnesses
Mr Stephen Nash
14. Mr Nash said that he had known Paul Dignon while serving in East Timor and he confirmed his attendance, along with Corporal Susan Laurence and public servant Hugh Harvey with Mr Dignon, in a UN marked vehicle which encountered a number of locals in front of the Dili Cathedral. He described the locals as appearing “upset and emotionally distressed”. He said that he felt as if he were “in the middle of an ant’s nest”. He described seeing women running around carrying children. He said that he suddenly noticed a number of Timorese men running towards the vehicle carrying sticks, rocks and machetes. He described “mass confusion in the area”. He recalled taking an aggressive stance, pointing his weapon at the oncoming crowd. He said that the crowd stopped approximately 20 metres from the vehicle and that this enabled the vehicle to return to the compound. Mr Nash did not recall encountering a United States soldier and cannot recall Mr Dignon telling him not to shoot his weapon. He also said that at one stage he got out of the vehicle. Mr Nash indicated in his written statement that on returning to the compound he told one of the soldiers in charge about the incident. He thinks an incident report was submitted but he cannot be sure who submitted it. He said that after the riot incident he noticed a change in Mr Dignon’s behaviour. He said that Mr Dignon had always appeared a quiet person but that after the riot he seemed even more reserved.
Ms Susan Laurence
15. Ms Laurence said she recalled driving into a riot situation where rioters held shovels and axes and were aggressive. She said that she did not feel that the aggression was directed towards her or the other occupants of Mr Dignon’s vehicle. However, she said that it was “not a good place to be”. She said that the vehicle had to slow down but she was not sure whether the vehicle came to a stop. She said the crowd was sufficiently close that she could have put her arm out of the window and touched them. She believes Mr Nash made an aggressive gesture towards the crowd and also recalls stopping to pick up a United States soldier. She recalls that when the occupants of the vehicle encountered a road block, the US soldier was dropped off and that the vehicle was allowed to pass through. She does not remember if anyone touched the vehicle, but said that the vehicle was not rocked by the crowd. She described her reaction as one of being shocked, surprised and that she “wanted out”. Ms Laurence did not recall Mr Nash getting out of the vehicle. She said that she definitely stayed inside the vehicle. She described the situation as “definitely a hostile situation”. She said that one of the crowd put his shovel up in an aggressive gesture. She said that there was a “reasonably strict” two cans of drink per day per person policy within the compound, but she had seen incidents where she thought that the policy could have been enforced more strictly.
Mr Hugh Harvey
16. Mr Harvey said that he was public servant serving in East Timor at the same time as Mr Dignon. He described encountering a riot in front of the Dili Cathedral. He said that he had been stunned and surprised. He said the other three occupants of the vehicle all had weapons. In front of the Cathedral he saw a lot of people running past with bandanas on their faces. He said that a number had been carrying picks and shovels. He said that the crowd had been “right next to the vehicle”. However, he cannot remember them touching the vehicle. He recalled picking up an American soldier and dropping the American soldier off at a UN blockade. He said that he had been scared and quite concerned. He recalls an incident report being submitted and that he also reported this incident to a psychologist during an interview shortly before returning to Australia.
Mrs Linda Dignon
17. Mrs Dignon said that prior to her husband’s posting to East Timor, he had been a normal happy father and husband. She said that he did drink if he had been at Army Reserves training or if he had been at a function. She said that he did not drink at home unless there was a social gathering. She said that Mr Dignon had been very keen to serve in East Timor.
18. Mrs Dignon said that on Mr Dignon’s return from East Timor she immediately noticed that he was different. She described him as being “stand-offish”. She particularly recalled that he did not kiss or hug her when she greeted him. She said that Mr Dignon later cried and said that he could not go back to work. She said that he did not give a reason. She described his sleeping pattern as having changed. She described him as moody, sulky and angry. She described a “roller coaster of emotions”. She said that this is still the case today, notwithstanding that she and Mr Dignon have attended the Vietnam Veterans’ Counselling Service approximately once a fortnight since 1995. She said that Mr Dignon now rarely drives. She does the driving. She said that Mr Dignon seems unable to concentrate on his driving. She said that his drinking had markedly increased. She said that he now drinks about two bottles of red wine and beer each day. She said that he will often do this on his return from work. She said that he goes into his study and drinks and only comes out to go to the toilet. She said that her marriage with Mr Dignon had nearly broken down on three occasions.
19. Mrs Dignon said that she recalled talking to Mr Dignon about the riot incident at the time and that she had been very concerned. He had told her that all was okay and that they had got out of it because they had guns. She said that Mr Dignon rarely talked about events which occurred in East Timor.
medical evidence
20. Psychiatrist Dr Martyn Ewer was called to give evidence by Mr Dignon and psychiatrist Professor Alexander McFarlane was called to give evidence by the Commission.
21. Both psychiatrists diagnosed Mr Dignon as suffering from PTSD and alcohol dependence. Dr Ewer said that the riot incident, as described to him by Mr Dignon and even if he were to assume that the crowd never rocked the vehicle, was sufficient, in his view, to qualify as a severe stressor. Dr Ewer indicated that the clinical onset of both conditions was likely to have been at or about the time of Mr Dignon’s service in East Timor.
22. Professor McFarlane said that he had noted that Mr Dignon had, prior to service in East Timor, been the victim of a stabbing by a mentally ill person. He said that this incident may have made Mr Dignon more susceptible to experiencing the effects of traumas such as the riot incident or encountering decapitated bodies.
writeway research
23. The Commission called the authors of a number of statements annexed to a report from Writeway Research. In essence, those officers indicated an understanding that if a report had been received of encountering a number of decapitated bodies, that there would certainly be records of such an event. They said that they had never seen nor heard of any such event during the time Mr Dignon served in East Timor.
24. The initial report prepared by Writeway Research indicated that the researcher had failed to locate any reports of riots in the Dili area during the time Mr Dignon was in East Timor. A further report was provided indicating that indeed two or three such riots had been reported in various news reports.
legislative background
25. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly 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; …”
26. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
27. As Mr Dignon has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly 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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
28. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has issued a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
consideration
29. The claimed conditions of PTSD and alcohol dependence are the subject of SoPs. The Tribunal sets out the relevant provisions of the SoPs below. The Tribunal notes that where a SoP exists it must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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 s 196B(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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
30. In considering whether there is an hypothesis connecting Mr Dignon’s conditions with his war service, and in applying the relevant Deledio steps to that end, the Tribunal must consider all of the material before it, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
31. An hypothesis that (once again, after taking into account all of the material before us) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkel JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
32. As regards the first step in Deledio, the Tribunal is satisfied that the material before it points to an hypothesis connecting the claimed conditions with Mr Dignon’s operational service. That hypothesis is that one or both of the asserted events resulted in Mr Dignon suffering from PTSD and alcohol dependence, and that accordingly those conditions are war-caused.
33. SoPs have been determined by the Repatriation Medical Authority pursuant to s 196(2) of the VE Act in respect of the conditions in question. The current SoP in respect of PTSD is Instrument No 5 of 2008. At the time of the decision of the Commission the relevant SoP was Instrument No 3 of 1999, as amended by Instrument No 54 of 1999.
34. The current SoP in relation to alcohol dependence is Instrument No 1 of 2009. At the time of the original decision, Instrument No 76 of 1998 was in effect. The decision of Repatriation Commission v Gorton (2001) 65 ALD 609 is to the effect that the Tribunal must consider the claim in the light of any SoP in effect at the time of the Tribunal’s decision unless a more favourable SoP had been in effect at the time of the original decision in which case that more favourable SoP should be applied. In relation to step 2 of Deledio, the Tribunal is satisfied that there is a SoP in force, consequently step 2 is satisfied.
35. The Tribunal now turns to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before it, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
36. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
37. In relation to PTSD, and in considering Instrument No 5 of 2008, it was suggested that factors 6(a) or 6(b) applied to Mr Dignon’s circumstances, that is:
“(a)experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of post traumatic stress disorder;”
Clause 9 of Instrument No 5 of 2008 describes the stressors as follows:
“…
‘a category 1A stressor’ means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped or being tortured;
‘a category 1B stressor’ means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…”
Paragraph (c) of the definition of a category 1A stressor describes “being threatened with a weapon, being held captive, being kidnapped, or being tortured”. The evidence before the Tribunal in relation to the riot incident includes Mr Dignon’s account and the evidence of other passengers in his vehicle at the time of the riot incident, of having been confronted with a crowd carrying machetes and other more domestic weapons. Ms Laurence described one of the rioters as holding up a shovel in an aggressive manner. Mr Dignon’s evidence was that the crowd was threatening and armed with weapons. The Tribunal is satisfied that the material before it includes evidence of Mr Dignon, along with the other occupants of his vehicle, being threatened with a weapon. The riot incident therefore matches the PTSD SoP. The Tribunal has also noted that the material contains Mr Dignon’s account of viewing decapitated bodies. Mr Dignon made these reports to Dr Ewer and repeated these events before the Tribunal. The Tribunal considers that the material before it points to the satisfaction of paragraph (b) of the definition of a category 1B stressor, that is “viewing corpses or critically injured casualties as an eye witness”. The decapitated bodies incident therefore also matches the current SoP relating to PTSD.
38. Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the SoP in effect at the time of the Commission’s decision), includes factor 5(a) “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”. “Experiencing a severe stressor” is defined in the amending SoP, Instrument No 54 of 1999, as meaning:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
The Tribunal is satisfied that the material before it in relation to the riot incident satisfies the definition of “experiencing a severe stressor”. The riot posed a threat of serious injury to Mr Dignon and the occupants of his vehicle. The decapitated bodies incident also satisfies the definition of “experiencing a severe stressor” which refers to witnessing casualties or participation in, or observation of, casualty clearance, atrocities or abusive violence. The Tribunal is of the view that encountering decapitated bodies in the process of being cleared by the police, satisfies this definition.
39. The Tribunal notes that both Instruments No 5 of 2008 and No 3 of 1999 include in the diagnoses of PTSD the requirement that a person is exposed to a traumatic event in which 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 and that the person’s response involved intense fear, helplessness or horror. The Tribunal is satisfied that the material before it, including Mr Dignon’s statements of feeling fear and horror, when considered in relation to both the riot incident and the decapitated bodies incident, satisfies this requirement.
40. The Tribunal has consequently found that the material before it matches the templates described in relation to PTSD in Instruments No 5 of 2008 and No 3 of 1999, as amended by No 54 of 1999.
41. In considering alcohol dependence, the Tribunal notes the content of Instrument No 1 of 2009. This SoP includes factors 6(b) and (c). These factors read as follows:
“6The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;”
Category 1A and 1B stressors have the same definition as that contained and described in the PTSD SoP No 5 of 2008, and for the same reasons therefore the Tribunal is satisfied that the material before it, particularly Mr Dignon’s evidence in relation to both the riot incident and the decapitated bodies incident, matches that SoP.
42. The Tribunal also considers that the material before it matches the alcohol dependence SoP in effect at the time of the Commission’s decision, that is Instrument No 76 of 1998. Factor 5(b) describes “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. “Experiencing a severe stressor” is defined in this SoP as meaning:
“… 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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence”.
The Tribunal is satisfied that the material before it, particularly the evidence of Mr Dignon, together with the medical opinion evidence of Drs Ewer and McFarlane, match the template for “experiencing a severe stressor” before the clinical onset of alcohol dependence or alcohol abuse. In particular the Tribunal considers that the riot incident involved actual or threat of death or serious injury or a threat to the person or another person’s physical integrity, which event or events might evoke intense fear, helplessness or horror. Mr Dignon has described his fear and horror. The other witnesses who were in Mr Dignon’s vehicle at the time also described feelings of fear, although their feelings were described in different ways. The Tribunal also considers that the material before it includes evidence of Mr Dignon witnessing the clearance of casualties and atrocities. His evidence in relation to the decapitated bodies incident matches this SoP. Step 3 of Deledio is satisfied.
43. The Tribunal now turns to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before it, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the incapacity in question was war-caused. If the Tribunal is not so satisfied, Mr Dignon’s claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, the Tribunal notes that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). The Tribunal also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.2, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
44. The features necessary to satisfy Instrument No 5 of 2008 relating to PTSD and the riot incident have been discussed. The Commission argued that the riot incident was not of a nature which would satisfy the SoP, however the Tribunal has not accepted this submission. The Commission pointed to a number of inconsistencies between Mr Dignon’s evidence and that of the other witnesses. The Tribunal has also noted that the evidence of the other witnesses was not, in every respect, consistent with each other. One point of difference in Mr Dignon’s evidence was that he said that the crowd struck or scratched his vehicle with various weapons and that at one point they shook the vehicle while Mr Dignon and the others were inside. Mr Nash said that he held the crowd at bay approximately 20 metres from the vehicle and that the crowd did not come any closer. Ms Laurence said that the crowd was close enough for her to reach out and touch, and Mr Harvey also said that the crowd was very close to the vehicle. The evidence of other witnesses does not satisfy this Tribunal, beyond reasonable doubt, that the crowd did not in fact touch the vehicle, but in any event, even if the Tribunal were satisfied, beyond reasonable doubt, that the crowd did not touch the vehicle, nevertheless the Tribunal considers that being confronted with an angry crowd brandishing weapons such as machetes, axes, picks and shovels, satisfies the SoP concerning PTSD.
45. If necessary, the Tribunal would also find that it has not been satisfied, beyond reasonable doubt, that circumstances necessary to satisfy factor 5(a) of Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, that is “experiencing a severe stressor prior to the claimed onset of post traumatic stress disorder”, did not occur.
46. The Tribunal is however satisfied, in relation to the decapitated bodies incident, that it is so unlikely that such an incident, if it occurred, would not have been discussed amongst other members of Mr Dignon’s foot patrol or that those other members, if they had not seen the decapitated bodies personally, would not have inquired of Mr Dignon as to what had been in the centre of the road. Similarly, it is extremely unlikely that such an event would not have been recorded in UN reports or otherwise documented. The Tribunal is satisfied, beyond reasonable doubt, that such an event did not occur. This finding raises concerns in relation to Mr Dignon’s credibility. The Tribunal had an opportunity of observing Mr Dignon provide his evidence. The evidence of the psychiatrists and the Tribunal’s observations of Mr Dignon, are consistent with a very troubled man who has experienced a number of nightmares relating to his experience in East Timor. An explanation for his suggestion of an event concerning decapacitated bodies may be found in his clinical presentation.
47. In relation to alcohol dependence, the Tribunal has found that Instrument No 1 of 2009 is matched by the material before it in relation to both the riot incident and the decapitated bodies incident. If necessary, the Tribunal would also be satisfied that the material before it satisfies the SoP which was in effect at the time of the Commission’s decision, that is, Instrument No 76 of 1998.
48. The Commission argued that the riot incident should not be considered sufficiently grave in its nature as to satisfy Instrument No 1 of 2009. However, the Tribunal has found that the material relating to the riot incident does match Instrument No 1 of 2009, and the Tribunal is not satisfied, beyond reasonable doubt, that any element necessary to support such a finding does not exist.
49. If called upon to consider Instrument No 76 of 1998 in relation to the riot incident and alcohol dependence, the Tribunal would not be satisfied that any necessary element was disproved or was inconsistent with another fact found to be true in the material which would leave the Tribunal satisfied, beyond reasonable doubt, that such a necessary element did not exist.
50. In respect of Mr Dignon’s account of encountering decapitated bodies, in the absence of any official reports of such an incident the Tribunal is satisfied, beyond reasonable doubt, that such an event did not occur.
51. The Tribunal has also noted, that in relation to alcohol dependence, Instrument No 1 of 2009 also includes having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse. In the light of the abovementioned discussion, it is unnecessary to consider this factor. However, the Tribunal would not be satisfied, beyond reasonable doubt, that Mr Dignon’s PTSD did not pre-date his alcohol dependence and consequently the Tribunal would not be satisfied, beyond reasonable doubt, that factor 6(a) of Instrument No 1 of 2009 was also satisfied.
decision
52. The Tribunal has reached the view that Mr Dignon suffers from both PTSD and from alcohol dependence and that those conditions are war-caused. The Tribunal consequently determines that these conditions should be accepted as war-caused with effect from 17 March 2005. The Tribunal, at the request of the applicant, will remit the matter to the Commission for re-assessment of the applicant’s entitlement to pension in the light of these reasons.
I certify that the 52 preceding paragraphs are
a true copy of the reasons for the decision
herein of Mr J G Short (Member) and
Professor P L Reilly AO (Member)Signed: .....................................................................................
J Coulthard AssociateDates of Hearing 4-6 February 2009
Date of Decision 15 April 2009
Counsel for the applicant Mr S Ower
Solicitor for the applicant Tindall Gask BentleyAdvocate for the Respondent Mr K Herman
Department of Veterans’ Affairs
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16
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