Petersen and Military Rehabilitation and Compensation Commission
[2008] AATA 1145
•19 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4766
VETERANS' AFFAIRS DIVISION ) Re ANDREW PETERSEN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Dr Kerry Breen, MemberDate19 December 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS AFFAIRS – HIV infection – service disease – acceptance of liability – non-warlike service – East Timor – defence service – original determination – reviewable determination – standard of proof – requirement to refer only to current SoP – rendering defence service – means of transmission of HIV infection – provision of medical assistance – treatment of accident victims – use of protective gloves – infection by sexual activity
Administrative Appeals Tribunal Act 1975 s29, s43
Military Rehabilitation and Compensation Act 2004 ss 6, 23, 27, 118, 340, 341, 345, 352, 355, 335, 337, 338
Military Rehabilitation and Compensation (Consequential and Transitional Provisions)
Act 2004 s 7
Safety, Rehabilitation and Compensation Act 1988
Veterans’ Entitlement Act 1986 s196B,
Statement of Principles
Instrument No 1 of 1996 concerning Human Immunodeficiency VirusByrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
19 December 2008 Mr Egon Fice, Member
Dr Kerry Breen, Member1. Mr Petersen was a member of the Permanent Forces (Regular Army) between 29 May 1994 and 16 October 2005. He was deployed to East Timor as a member of the Defence Cooperation Program East Timor (DCP-EM) between July 2004 and February 2005. Following tests in February 2005, Mr Petersen was diagnosed as having been infected with the human immunodeficiency virus (HIV), which almost certainly occurred during Mr Petersen’s time in East Timor.
2. On 4 March 2005 Mr Petersen lodged a claim with the Department of Veterans’ Affairs for compensation by way of weekly benefits and payment of medical expenses. His claim was rejected by the Military Rehabilitation Compensation Commission (MRCC) on the ground that his HIV infection did not arise out of defence service. Mr Petersen sought review of that decision by the Veterans’ Review Board (VRB). Mr Petersen’s claim was also rejected by the VRB; again on the ground that there was no causal link between his defence service and his being infected with HIV.
3. The issues before us are:
(a)whether Mr Petersen’s disease is a service injury as that expression is defined in the Military Rehabilitation and Compensation Act 2004 (MRC Act); and
(b)if Mr Petersen’s HIV can be described as a service injury, whether he is entitled to compensation.
LEGISLATIVE SCHEME
4. The MRC Act applies to a person’s disease if the disease is contracted on or after the commencement date of the MRC Act, and the disease relates to defence service rendered by the person on or after the commencement date; or before, and on or after, that date (Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (s 7)). The MRC Act commenced on 1 July 2004. Therefore, Mr Petersen’s claim must be dealt with under that Act.
5. Although the terminology used in the MRC Act is different to that used in its more familiar predecessor, the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), it incorporates principles familiar to service personnel under the Veterans’ Entitlement Act 1986 (VE Act). It includes the establishment of a reasonable hypothesis by use of Statements of Principles (SoP), which will be familiar to service advocates. However, unlike the VE Act, acceptance of liability under the MRC Act does not does not automatically generate the payment of a benefit. This might occur where a member of the Permanent Forces is serving at the time of the claim and has not lost income and where his or her medical treatment and rehabilitation needs continue to be met by the defence force.
6. Because some of the terminology maybe unfamiliar, it is worth explaining terms which will be used in the assessment of this claim. The expression member is defined as a member of the Defence Force, a cadet or a declared member. The expression Defence Force means the Permanent Forces and the Reserves. The expression Permanent Forces is defined as the Permanent Navy, the Regular Army and the Permanent Airforce. The expression Permanent Forces member means a member of the Permanent Forces.
7. The kinds of service to which the MRC Act applies is set out in s 6(1):
6Kinds of service to which this Act applies
(1)In this Act:
(a) warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b) non-warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c) peacetime service means any other service with the Defence Force; and
(d) defence service means warlike service, non-warlike service or peacetime service.
Note:The determination may be varied or revoked (see subsection 33(3) of the Acts Interpretation Act 1901).
8. In an Instrument dated 30 June 2004, the then Minister for Employment Services, on behalf of the Minister for Defence, determined that service members engaged in Operation SPIRE, in East Timor and the territorial sea of East Timor commencing 20 May 2004, provided non-warlike service for the purposes of the MRC Act. Mr Petersen’s service in East Timor was non-warlike service for the purposes of the MRC Act. Therefore, for the purposes s 6(1) of the MRC Act, Mr Petersen’s service in East Timor falls within the definition of defence service.
9. Section 23 of the MRC Act sets out when the MRCC must accept liability for service injuries and diseases. Insofar as Mr Petersen’s claim is concerned, it provides:
23Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1)The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person’s injury or disease is a service injury or disease under section 27; and
(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b) all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
10. Chapter 4 of the MRC Act deals with compensation for members and former members. Compensation for incapacitated former members is dealt with under s 118 of the MRC Act. In addition to the applicant for compensation being a former member of the Permanent Forces, to qualify for compensation, the MRCC must have accepted liability for a service injury or service disease. The definitions of service injury and service disease are set out in s 27 of the MRC Act. It provides:
27Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note:This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
11. Claims for the acceptance of liability are made under Chapter 7 of the MRC Act. After investigating the claim, the MRCC must determine the claim. That determination is referred to as the original determination (s 345). Most original determinations can be reconsidered and reviewed. A claimant can seek reconsideration of the decision by the MRCC or seek a review by the VRB (see Chapter 8). In this case, Mr Petersen made an application under s 352 of the MRC Act for a review of the original decision by the VRB, which affirmed the original determination.
12. Applications may be made to this Tribunal for a review of a reviewable determination. A reviewable determination is defined in s 345 to include a determination made under Part 4 by the VRB on review of an original determination. That is the course Mr Petersen has adopted and we are satisfied that this Tribunal has jurisdiction to review his claim. Mr Petersen received the VRB decision on 16 September 2007 and he lodged his application with the Tribunal on 1 October 2007. That is within the time limit in s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) as modified by s 355 of the MRC Act.
13. For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision (AAT Act s 43(1)). In other words, for the purposes of reviewing the decision of the MRCC, the Tribunal effectively stands in the place of the original decision maker.
14. The standard of proof for claims relating to warlike or non-warlike service is set out in s 335 of the MRC Act. It provides:
335 Standard of proof for Commission and service chiefs
Standard of proof for claims relating to warlike or non-warlike service
(1)If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person’s injury, disease or death relates to warlike or non-warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, 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, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person’s injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury is a service injury; or
(b)that the disease is a service disease; or
(c)that the death is a service death;
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 while a member.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
Other determinations to be made to its reasonable satisfaction
(3)Except in making a determination to which subsection (1) applies, a service chief or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.
15. Neither the person claiming the compensation nor the MRCC has any onus of proving any matter that is or might be relevant to the determination of the claim (s 337). Section 338 of the MRC Act provides that where a claim has been made for acceptance of liability under s 23(1) which relates to warlike or non-warlike service, for the purposes of s 335(2), a hypothesis will only be reasonable if there is an SoP determined by the Repatriation Medical Authority (RMA) under s 196B(2) or S 196B(11) of the VE Act, or a determination by the MRCC under s 340(2), where the RMA has determined or declared that it does not propose to make or amend an SoP which upholds the hypothesis. Section 338(3) does not apply if the RMA has neither determined an SoP under s 196B(2) of the VE Act nor declared that it does not propose to make such an SoP in respect of the kind of disease contracted, injury sustained or death met by the person. This process of course mirrors that set out in the VE Act which requires the Tribunal to follow the four steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82, save for the fact that the reference in step four to s 120(1) of the VE Act should be replaced by s 335(1) of the MRC Act.
16. Although not an issue in Mr Petersen’s case, there is an important difference between the VE Act and the MRC Act when it comes to determining which SoP should be applied, where the SoPs which were in force at the time the claim was made have subsequently been repealed and replaced by the current SoP. While under the VE Act, the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 recognised rights which may have accrued under repealed SoPs thus resulting in a sequential approach when considering the SoPs, s 341 of the MRC Act mandates that where there exists a current SoP, it is the current SoP which must be applied. Further, s 341(3), inserted for the avoidance of doubt, declares that no rights, privileges, obligations or liabilities are acquired or accrued which would permit the MRC or the Tribunal, when making a decision on reconsideration or review, to apply any SoP that is no longer in force.
DIAGNOSIS
17. There is no dispute about the diagnosis of Mr Petersen’s illness. Serological tests conducted in April 2003 and April 2004 did not detect HIV1/2 antibodies. However, HIV1/2 antibodies were detected in a test conducted on 16 February 2005. A follow-up test conducted on 21 February 2005 confirmed the presence of HIV antibodies.
18. In a letter dated 2 March 2006 addressed to the MRCC, Professor ML Grayson, Director of the Infectious Disease Department at Austin Hospital, reported that Mr Petersen had been referred to him by Dr G Mikhail from Simpsons Barracks Medical Centre in Macleod on 22 February 2005. He said that:
Mr Petersen presented with signs and symptoms consistent with primary HIV infection. … his serology and subsequently his serum HIV viral load confirm the presence of HIV infection which almost certainly occurred during his time in East Timor.
19. On the basis of the serological tests and Professor Grayson’s report, we are satisfied Mr Petersen is infected with HIV and that the infection occurred during his period of service in East Timor.
MR PETERSEN’S HYPOTHESIS
20. In East Timor Mr Petersen was stationed in a small town, about one hour’s drive from Dili. He was principally employed as a communications instructor but he said he was also required to provide minor infantry instruction to the East Timor Defence Force. He was dressed in the usual army camouflage uniform which included a long-sleeved top. He did not wear protective gloves while working. He said that his role as infantry instructor required him to be out in the field where he said it was common to suffer from minor cuts and abrasions to his hands.
21. Mr Petersen told the Tribunal that while driving around in East Timor, it was not uncommon to come across road accidents. He said the roads were poor and narrow, particularly in mountainous areas. He said it was part of his duty to assist accident victims and while he was in East Timor, he attended something like 12 or 13 road accidents but could not be more specific. He said that in the course of attending those accidents, he had rendered first aid to the victims of those accidents. He also said that in most cases the victims were bleeding although he did not specify to what extent he came into contact with the blood of any accident victim. He said that while attending accident victims, he did not wear any protective gloves. He did not recall any specific event which resulted in him getting blood on his hands but he said that he did recall it happening.
22. Mr Petersen also said in evidence that he had, on about two occasions, received intravenous fluid after suffering from dehydration. However, he said that when he received fluid by intravenous means, the needle used came from a sealed pack and was administered by another member of the Defence Force. He was satisfied that on each occasion that he received intravenous fluid, the needle used was sterile.
23. Mr Petersen’s evidence was also that he had engaged in sexual intercourse with two females while in East Timor, both American citizens. He said that he had unprotected sexual intercourse with a medical officer who was a member of the US forces in East Timor. He also had protected sex, using a condom, with an American woman who worked for the World Bank. He did not recall on how many occasions he had unprotected sex with the American medical officer but he agreed that it was on more than one occasion. Mr Petersen also said that while in East Timor, he had two periods of leave, in October and in November 2004. He went to Phuket in Thailand for those leave breaks. He said that on both occasions that he was in Thailand he had sexual intercourse with a local woman. He said that on every occasion that he had sexual intercourse with the Thai woman he wore a condom. He could not specify on how many occasions he engaged in sexual intercourse with the Thai woman but it was a number of times. Mr Petersen also said that in addition to sexual intercourse, his sexual activity also involved oral sex with an Asian woman while in East Timor. No condom was used during that activity.
24. Dr Tim Driscoll, an independent consultant in epidemiology, occupational health and public health, gave evidence about the transmission of HIV and the probability of successful transmission by various means. Put simply, transmission of HIV occurs where a HIV negative person comes into contact with bodily fluids of a person who is HIV positive. Transmission is more likely where there are higher concentrations of the viral load and that in itself is dependent upon the volume of the body fluid from an infected person coming into contact and being absorbed by the person that is HIV negative. He agreed that where a HIV positive person who was bleeding came into contact with a HIV negative person who had cuts in the skin, HIV could be transmitted. He also agreed that sharp hollow objects, such as a needle, infected with HIV, if brought into contact with HIV negative person in such a way as to penetrate the skin, created a significant means of transmission of HIV. Of course, as is now commonly understood in the general community, a significant risk of HIV transmission also occurs during homosexual and heterosexual sexual activities. Dr Driscoll also explained that the greater the number of exposures to contact with the body fluids of a HIV positive person, the higher the risk of infection.
25. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. Accordingly, at this stage of the reasoning process, we must not make any findings about the facts presented to us. Having examined all of the material which is before us in evidence, we are satisfied that it does point to a hypothesis connecting Mr Petersen’s HIV infection with the circumstances of his service in East Timor in 2004.
STATEMENT OF PRINCIPLES (SoP)
26. Having found that the material before us raises a hypothesis, we must determine whether there is in force an SoP determined by the RMA under s 196B(2) or 196B(11) in respect of HIV. There is such an SoP and it is found in Instrument No 1 of 1996. That SoP is current as at the date of making this decision. It therefore satisfies the requirements set out in s 341 of the MRC Act.
IS MR PETERSEN’S HYPOTHESIS A REASONABLE ONE?
27. Mr Petersen’s hypothesis will be reasonable if it is consistent with the template found in the SoP. That is, the hypothesis raised must contain one or more of the factors which the RMA has determined to be the minimum which must exist and be related to the applicant’s service. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting HIV with the circumstances of a person’s relevant services are set out in Clause 5 of the SoP. Mr B Turner, an RSL advocate who appeared on behalf of Mr Petersen, submitted that the only factor relied on by Mr Petersen was Factor 5(c). Factor 5(c) of Instrument No 1 of 1996 provides:
(c)suffering a wound, laceration, or other injury or disease disrupting skin integrity, after 1 January 1975, that may have been contaminated by the body fluids of a person not proven to be negative for human immunodeficiency virus, and within the 15 years immediately before the clinical evidence of infection with human immunodeficiency virus; …
28. We have no doubt that the material before us does satisfy Factor 5(c) in the relevant SoP.
IS MR PETERSEN’S HIV INFECTION A SERVICE DISEASE?
29. It is at this stage of the enquiry that we are required to make findings of fact from the material in evidence before us. We are required to find in favour of Mr Petersen unless satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved either by proof beyond reasonable doubt that a fact, or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact inconsistent with the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 567).
30. As is set out in s 27 of the MRC Act, a disease is a service disease if it resulted from an occurrence that happened while the person was a member rendering defence service or if the disease arose out of or is attributable to any defence service rendered by the person while a member. It should be clear from definitions of service disease set out in s 27 that the MRC Act requires a causal connection between the rendering of defence service and the disease, and not merely that the person was a member of the defence service at the time the disease was contracted. The word rendering is not defined in the MRC Act. Therefore, in accordance with the rules of statutory construction, the word should be given its ordinary meaning. The Shorter Oxford English Dictionary defines rendering as: reproduction, representation, performance. Therefore, Mr Petersen’s HIV must have resulted from an occurrence (or event) which happened while he was performing defence service, which in his case, was non‑warlike service. In our view, that would exclude an event or occurrence which happened while Mr Petersen was in East Timor but which was not in any way related to the service he was required to perform while he was there.
31. Mr Petersen’s evidence about having cuts and abrasions on his hands and coming into contact with contaminated blood from persons not proven to be HIV negative was self-contradictory and, in our opinion wholly unsatisfactory.
32. Mr Petersen said that in the course of his duties in East Timor, he was required to stop when he came across a road accident and render assistance to any victims. He also said this happened on numerous occasions. Brigadier CE Hamilton, who was the Commanding Officer of the DCP-EM between 14 January 2004 and 30 January 2005, said that accidents were a frequent occurrence on the roads in East Timor. There was no dispute about the fact that the rendering of first aid to accident victims by members of the Defence Force in those circumstances were occurrences that happened while those persons were rendering defence service.
33. A significant evidentiary problem was that Mr Petersen, in his evidence-in‑chief, after explaining that he had rendered assistance at some 12 or 13 roadside accidents where blood was present, said that in rendering assistance he did not wear protective gloves. However, according to the transcript, on the first day of the hearing before the VRB on 1 March 2007, Mr Petersen gave the following answers to questions by the VRB:
MS FRISTACKY: Were there any occasions where you may have been exposed to blood, you know, by dealing with someone who was wounded or some other possibility like that?
MR PETERSON[sic]: There certainly was on several occasions we would quite often stop if we were driving around up at the far end of the island or to Dili where frequent vehicle accidents and we were always administering first aid to, it was our duty of care to stop and render any first aid at incidents.
MS FRISTACKY: And did you wear gloves?
MR PETERSON: Beg yours, sorry?
MS FRISTACKY: Did you wear gloves or take precautions?
MR PETERSON: Generally …..yes, I did wear gloves and we always had gloves with us, yes.
MS FRISTACKY: Was there any occasion where you didn’t wear gloves?
… (hearing paused due to an evacuation drill)
MR PETERSON: Not that I can recall, no.
MR WRAY: Sorry just to explain we were interrupted and there’s a bit of background noise because there’s an emergency drill going on at the moment.
MR PETERSON: Okay.
MS FRISTACKY: ….. me. Sorry, I missed your answer. You wore gloves and I asked you the question and we were just interrupted. Was there any occasion where you didn’t wear gloves when you were exposed to blood?
MR PETERSON: No, I – I’m pretty sure every time. We were – it was ….. that we were required to wear gloves when treating a ….. in Timor so I’ve got to say no.
34. The hearing before the VRB was adjourned on 1 March 2007 and the second day of hearings commenced on 3 September 2007. However, between the two hearing dates Warrant Officer Phillip Sutherland, who served in East Timor between January and about October 2004, provided a statement. In his statement Warrant Officer Sutherland said that after attending his first motor vehicle accident in East Timor he discovered that the Defence Force vehicles, although containing a first aid kit, did not contain protective gloves. He also said that he knew that members of the Defence Force in East Timor, such as Mr Petersen, did attend accidents and provided first aid prior to glove protection being provided. He said that it was after attending his first accident that he ensured that protective gloves were placed in all Defence Force medical kits.
35. On the second day of the hearing before the VRB on 3 September 2007, the following exchange is recorded in the transcript:
MR TURNER: Mr Peterson, have you read the statement by WA2 Phillip [sic] Sutherland?
MR PETERSON: Yes.
MR TURNER: He says here that not every vehicle had the rubber gloves in it and that the rubber gloves that were supplied were not of the tough ones but were of the light ones and that they – they – I don’t know whether he says they ripped or anything but he - - -
MR PETERSON: They were just like a cheap second skin glove, they – I remember quite well the actual gloves that we used. They were just disposable slip on gloves. They weren’t anything special.
MR TURNER: Did you find any problems with them?
MR PETERSON: I can’t honestly say that I can recall finding problems with them but, no, you know, half the time they weren’t used in any case.
MR TURNER: Why was that?
MR PETERSON: Well when you come along an incident like that’s the last thing that goes through your mind, is going through the medical kit to put on the rubber gloves.
MR TURNER: And so from that statement can I assume that you treated East Timorese at road accidents without rubber gloves?
MR PETERSON: I know that when I was sent there because the rubber gloves were not initially in the cars. The rubber gloves were only instigated once Warrant Officer Phillip Sutherland was sent to East Timor.
MR REGAN: Mr Peterson, it’s Rob Regan here. Was there any occasion that you can recall that you treated an East Timorese person without using rubber gloves?
MR PETERSON: Yeah, I can remember incidents that I did; I can’t remember when they were but I can remember of incidents that I did, yes.
MR REGAN: Treating people without using the gloves?
MR PETERSON: Yes.
MR REGAN: But the gloves were available?
MR PETERSON: One incident, no. Rubber gloves, we didn’t have any rubber gloves one incident. Sometimes you’re just out in the field in general we didn’t have rubber gloves on us, we didn’t have a vehicle with us for instance.
MR REGAN: So you think you may have treated someone without using rubber gloves?
MR PETERSON: I certainly know that I have.
MR REGAN: Can you recall the specifics of the incident?
MR PETERSON: There was one time a boy, a soldier, a Timorese soldier had suffered severe lacerations whilst on exercise. When I say severe laceration; it wasn’t severe but there was an amount of blood.
MR REGAN: And why were you treating him?
MR PETERSON: The people that I was with were part of the communications course that we were running. it was a small detachment. Other than me there was nobody else there that could provide first aid.
(Ms Fristacky then drew Mr Peterson’s attention to the evidence given on the first day of the hearing regarding the use of gloves).
MS FRISTACKY: … So that’s what you said last time before the board and I’m just wondering if you said that last time you now say that you did attend an accident where you wouldn’t have used gloves. So can you explain?
MR PETERSON: I can recall an incident – sorry, excuse me.
MR WRAY: Yes, sorry, your turn now.
MR PETERSON: I can certainly recall incidents where I attended accidents where I didn’t have gloves. Vehicle accidents; I can’t recall to be honest, I don’t know but I know that like in training in the field there was times when I treated soldiers and what not without gloves.
36. Although Mr Petersen’s evidence is somewhat confusing, it is clear that he had changed his mind about the evidence he gave on the first day of the hearing. Although he said he could recall occasions when he attended accidents where he didn’t have gloves, in the very next sentence he said he couldn’t recall the vehicle accident.
37. Brigadier Hamilton said in his evidence that he recalled rewriting a Standing Order in June 2004 requiring each Defence Force vehicle to be equipped with two boxes of latex gloves. He was of the view that at least from that date, and possibly earlier, vehicles were equipped with boxes of latex gloves. Warrant Officer Sutherland, on the other hand, said in oral evidence that he was of the view that all of the vehicles in East Timor were equipped with boxes of latex gloves by about August 2004. However, in his written statement, he said that it was after attending his first motor vehicle accident that he ensured protective gloves were placed in vehicle medical kits. Given that Warrant Officer Sutherland arrived in East Timor in January 2004, and that he said motor vehicle accidents were a frequent occurrence, we did not understand him to be saying that he did not attend his first motor vehicle accident until August 2004, almost at the end of his tour.
38. Also in evidence was a series of emails between the MRCC and Dr Andrew Gaczol, from the Department of Defence and an Acting Director East Timor Team. According to Dr Gaczol, gloves were a part of each vehicles medical kit in East Timor at least from 1 July 2004 to February 2005.
39. In our view, the weight of evidence points to the fact that latex gloves were available in all Defence Force vehicles in East Timor between July 2004 and January 2005. That was Mr Petersen’s evidence on the first day of the VRB hearing, it accords with Brigadier Hamilton’s evidence and it sits comfortably with the written statement provided by Warrant Officer Sutherland on 20 August 2007. Although Warrant Officer Sutherland did not identify the date on which he attended his first motor vehicle accident, given that motor vehicle accidents were a frequent occurrence on the roads in East Timor, it is not unreasonable to draw the inference from Warrant Officer Sutherland’s statement that he attended his first motor vehicle accident fairly shortly after arriving there in January 2004. Although Warrant Officer Sutherland said that all vehicles certainly had gloves in them from August 2004 onwards, that is not to say the vehicles were not equipped with gloves before that date. In fact the evidence strongly suggests they were.
40. We are also satisfied, and we accordingly find, that when attending motor vehicle accidents, Mr Petersen did wear gloves on every occasion while he was in East Timor. That was his very clear evidence on the first day of the VRB hearing. However, after reading Warrant Officer Sutherland’s statement on 20 August 2007, Mr Petersen changed his evidence in light of that statement. His evidence then was that rubber gloves where only provided after Warrant Officer Sutherland was sent to East Timor. The problem with that statement is that Warrant Officer Sutherland first arrived in East Timor in January 2004. Mr Petersen arrived some six months later. Then, in addition to the motor vehicle accident cases, Mr Petersen unexpectedly raised the incident where he said he treated a Timorese soldier in the field for lacerations. This did not form any part of his evidence on the first day of the hearing. The explanation Mr Petersen gave as to why he was the person treating the East Timorese soldier was vague and unsatisfactory.
41. We should mention one other piece of evidence. On the first day of the VRB hearing, Mr Petersen was asked whether he ever remembered having a laceration or wound when attending a vehicle accident. His answer was: Not that I can recall. I don’t know. It may have happened but not that I can recall. Of course this evidence changed on the second day of the VRB hearing. The reason for this is abundantly clear to us. When this matter was first brought before the VRB, Mr Petersen’s case was that he contracted HIV as a consequence of having unprotected sexual intercourse with an American woman who worked for the World Bank. In opening Mr Petersen’s case, Mr Turner explained his instructions were that Mr Petersen met the woman at a running club and that was the only time he participated in sexual intercourse while he was in Thailand. When he was asked if he meant Timor, Mr Turner said yes, he meant Timor. In light of Mr Petersen’s evidence about his sexual activities in Thailand, we are concerned that Mr Turner was aware of those activities when the matter was before the VRB but he failed to tell that to the VRB.
42. The VRB transcript discloses that Mr Turner said he was relying on s 27B(4) of the MRC Act. He then went on to describe what that section provided. There is clearly an error in the transcript because the section Mr Turner was referring to is s 27(c)(iv), which refers to changes in the person’s environment consequent upon his or her having rendered defence service while a member. Mr Turner went on to say that the environment included his social environment and because Mr Petersen was away from the support of his family, he experienced a change of his environment. Were it not for the fact that he was in a changed environment, he would never have had casual sex with the American women. As that was unprotected sex, Mr Turner submitted that this event was the most likely cause of Mr Petersen’s infection. However, by the time of the second day of the hearing before the VRB, Mr Petersen’s claim shifted from one based on infection by sexual activity to infection resulting from the provision of medical assistance; we believe, because Mr Turner realised that his argument in support of s 27(c)(iv) was unsustainable. It is obvious that Mr Petersen then changed his evidence to suit the change in argument which he was making before the VRB on the second day of that hearing. That changed approach then continued through to the hearing before us. In fact, Mr Petersen’s evidence had changed from initially stating that he not only had protective gloves and used them on all the occasions that he attended motor vehicle accidents, to saying that not only were gloves not initially available to him, but that he did not wear them. Quite clearly, the evidence here has been tailored to suit the argument. It was wholly unsatisfactory.
43. To further illustrate the unreliability of Mr Petersen’s evidence, we should also compare the evidence of sexual encounters which he gave to the VRB with that he gave to this Tribunal. Before the VRB, Mr Petersen’s evidence was that he had only engaged in sexual activity in East Timor with one American woman who worked for the World Bank. He said that sexual activity consisted only of unprotected sexual intercourse. However, in his evidence before us, Mr Petersen completely changed his evidence about his sexual activity. First, he said that the only unprotected sexual intercourse he had in Timor was with a female American medical officer and it may have been on one or two occasions. He said that he had protected sexual intercourse with an American woman who worked for the World Bank on about four occasions. He also said that he had oral sex performed on him when he was not wearing a condom. He said that sex act was performed by what he described as an Asian woman. He denied that she was East Timorese.
44. In addition, in cross examination, Mr Petersen agreed that while based in East Timor, he had two periods of leave during which he travelled to Phuket in Thailand. He agreed that he had sexual intercourse in Thailand with a Thai woman but he denied that she was a prostitute. He said that on every occasion he had sexual intercourse in Thailand, he wore a condom.
45. Dr Driscoll provided a written statement in which, after an examination of extensive literature regarding prevalence HIV in various populations, he estimated the risk of contracting HIV in East Timor through heterosexual sexual activity. The statistics applied to insertive penile/vaginal intercourse with a HIV positive woman. He noted that the use of a condom would modify the probability of being infected with HIV by decreasing the probability to 1/20th of the risk of sexual activity without a condom. Where this form of unprotected sexual activity is engaged in between a HIV negative male and a HIV positive female, the chance of contracting HIV in a single sexual encounter is in the order one in two thousand. If there are five such encounters, the chance increases to about one in four hundred. These probability factors will alter depending upon the prevalence of HIV positivity in the country where the female resides. The prevalence of HIV in the East Timorese community in 2005 and 2006 was very low. According to Dr Driscoll, it was probably around 0.03 percent or less of the population. However, the prevalence of HIV in Thailand was significantly higher. Furthermore, HIV infection in Thailand is more prevalent in the female population than in the male population. Although unable to give an accurate estimate, Dr Driscoll was of the view that it would probably exceed one percent of women in Thailand. Dr Driscoll also indicated that although the risk of HIV infection from oral sex was low, it nevertheless existed.
46. Dr Driscoll was asked to rank the various means by which HIV infection can occur. He said that the most common cause of transmission was through homosexual sex, followed by heterosexual sexual activity. The third highest common cause was the use of intravenous injection. The least common means of infection was through providing medical care. Given the evidence before us regarding Mr Petersen’s sexual activity in the period immediately prior to being diagnosed with HIV, we are satisfied that the most likely cause of his infection was sexual activity. We are also satisfied beyond reasonable doubt that Mr Petersen’s infection with HIV did not occur through the provision of medical care by coming into contact with the blood of an infected person.
CONCLUSION
47. Given our findings of fact, we are satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Petersen’s HIV infection is a service disease as that term is defined in the MRC Act. It did not result from an occurrence that happened while Mr Petersen was a member of the Defence Force rendering defence service in East Timor. Therefore the MRCC and the VRB, on review, were correct when they decided that the MRCC should not accept liability for Mr Petersen’s HIV disease. The decision of the VRB made on 3 September 2007 was correct and must be affirmed.
I certify that the forty-seven [47] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member and Dr Kerry Breen, MemberSigned: Dianne Eva
ClerkDates of Hearing 1 & 2 December 2008
Date of Decision 19 December 2008
Advocate for the Applicant Mr Bruce Turner, RSL State Branch
Solicitor for the Respondent Mr B Dube, Sparke Helmore
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