Ragg and Repatriation Commission
[2003] AATA 917
•18 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 917
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/859
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL RAGG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date18 September 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor finds that the applicant’s post traumatic stress disorder is war-caused, with effect from 26 September 2000. The matter is remitted to the respondent for assessment. ....................(Sgd)..........................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether applicant suffering from war-caused post traumatic stress disorder – diagnosis – whether applicant has suffered a severe stressor
Veterans’ Entitlements Act 1986
Hill v Repatriation Commission [2001] FCA 1775
Stoddart v Repatriation Commission [2003] FCA 334REASONS FOR DECISION
18 September 2003 Mr O Rinaudo, Member Decision under Review
1. Mr Ragg seeks review of the decision of the Repatriation Commission dated 3 October 2000 as varied by the Veteran’s Review Board on 6 July 2001 (which added the diagnosis “post traumatic stress disorder”), that his post traumatic stress disorder is not war-caused.
Evidence
2. This matter was heard by the Tribunal on 16 January 2003. In addition to the applicant, Mrs Wendy Ragg and Drs Buckley, Lichter and Wainwright gave evidence to the Tribunal.
3. The exhibits tendered at the hearing were as follows
1.T documents
2.Statement of the applicant dated 12 November 2001
3.Statement of Mrs Wendy Ragg dated 15 January 2003
4.Report of Dr Lichter dated 4 March 2002
5.Report of Dr Buckley dated 4 December 2002
6.Report of Dr Wainwright dated 7 January 2002
7.Report of Writeway research dated 30 July 2002
4. Mr Ragg gave oral evidence to the Tribunal. He confirmed the matters set out in his written statement.
5. His evidence can be summarised as follows:
§Mr Ragg suffers from irritable bowel syndrome. He suffers attacks every day. He also suffers from diverticulitis.
§Sometimes Mr Ragg will get up in the middle of the night suffering from irritable bowel and from flashbacks. He finds it difficult to go back to sleep. He has “intrusive thoughts” from his days in Vietnam. These thought are particularly about the Tet offensive when Mr Ragg was in Saigon. He says that there were often bodies in the streets and the stench was “horrendous and unforgettable”.
§Mr Ragg was on a training course in Saigon and was not armed.
§The Tet offensive was a large scale north Vietnamese attack on Saigon which to that point had been considered safe from attack.
§Mr Ragg was for a time held up in a building with poor protection and no weapons. He was able to see fighting going on in the streets below. It seemed to him that “everything in Saigon seemed to be on fire”.
§Whilst moving from one area to another bodies were clearly visible. There was substantial gunfire and other action.
§He says “it was quite frightening to be part of a group without means to get out of the building and little form of protection and to be holed up in a building, well known to be housing Allied Forces, that could have been attacked at any time by the NVA”.
§After several days he and fellow troops were moved to Nui Dat.
§On the way to the airport the truck convoy in which he was travelling moved very fast “mowing down anything in our way, even to the extent of running over dead bodies”. Mr Ragg says that he saw a scene of “devastation and carnage”.
§In November 1967 and early 1968, Mr Ragg suffered viral attack and was sent to 1 Field Hospital in Vung Tau. He underwent a lumber puncture, which revealed Gastroenteritis. Mr Ragg says that he was in intensive care for three days until he came out of his “delirium”.
§He says, “While I was in this weakened state, the dust-offs arrived with the wounded, maimed and terribly injured soldiers from action that had just taken place. It had a profound effect on me to see those blokes in the state that they were in, having been brought in for immediate medical attention with limbs blown off and wide open wounds. The operation to save them went on all night. The memory of those sights just doesn’t leave me”.
§Mr Ragg says that during this period he lost four stone and was so thin that his mates did not recognise him. Because he continues to suffer from irritable bowl syndrome and diverticulitis he has never returned to his pre sickness weight. He says that the bowel problem is “entwined” with the memory of what he saw in the field hospital when sick.
§Mr Ragg says, “Quite often in the night, I wake up fully drenched in my own sweat from memories in the night of those times”. Because of this lack of sleep and the irritable bowel syndrome he says he becomes weaker as the day goes on. This limits him in his physical ability to perform work on his farm. However, he says that because of his post traumatic stress disorder the isolation of the farm work suits him. He states that he is “not fond of crowds or people”.
§Because of his illness he has reduced earning capacity. He says that he constantly feels tired.
§Under cross-examination Mr Ragg says that he has reduced his alcohol intake. He did not undertake a blood test as requested by Dr Wainwright because his solicitor had told him he did not have to.
§Mr Ragg also stated that when he and his fellow troops left Saigon after the Tet Offensive they were transported in covered trucks and could not see in front of them. He says they could see out the back of the canopy. He said he saw 10-20 bodies. Some were bloated and blew up when the trucks drove over them.
6. Mrs Ragg was also called to give evidence, however after confirming her written statement there were no other questions of her. In her written statement Mrs Ragg says:
§She and Mr Ragg met in 1969 within a few months of his return from South Vietnam. She was then 19 years old. They married in 1974 and have been married for 28 years.
§Mrs Ragg says that there were times, after they were married, that Mr Ragg would “fly off the handle unnecessarily” although most of the time he was “pretty even keeled”.
§Mrs Ragg saw a marked change in Mr Ragg after he attended a Vietnam Veterans’ “Welcome Home” parade in Sydney in 1987. He had always been upset at having returned home in the middle of the night through Darwin so that people would not see them and subsequently being spat on in Sydney by people in the street who saw them in uniform.
§She says that Mr Ragg “is not very keen on social occasions particularly if he does not know who will be attending a function or party”.. She says that he has become withdrawn socially. He prefers to watch television and drink rather than go out.
§Mr Ragg becomes extremely stressed about anything that upsets his routine. They have had to physically isolate their teenage sons by placing them in a bungalow on their property so that they do not upset Mr Ragg. The children prefer to go out rather than stay at home with their father.
§Mrs Ragg says that Mr Ragg appears to have “unresolved anger in relation to the past generally”.
§He has had difficult with employees and prefers to work on his own without the pressure of supervision or working with anyone else.
§He was unable to cope with business and his furniture business “folded in 1985”. Mrs Ragg says, “In 1985 and 1987 our sons were born and to ‘rescue’ Michael we purchased a small farm at Willow Vale with the proceeds of a business which I had built up and we had a little bit of ‘time off’ looking after the babies while I started another business from home”.
§She believed that Mr Ragg was “deteriorating emotionally quite rapidly” and would not be able to perform paid employment. Mrs Ragg employed a babysitter/housekeeper and worked full time.
§Mrs Ragg says that Mr Ragg worked around the farm but this was more the image of “doing a job”. She says, “He needed to have something to keep him busy as he was developing a drinking problem and he needed to be a ‘working role model’ for the children, I thought”.
§At first Mr Ragg enjoyed the work and “worked quite hard” but later his irritable bowel problem caused him to be very tired and he has substantially reduced his workload. The children help but don’t enjoy it. Mrs Ragg says, “We are reluctant to sell up and move to the suburbs because we feel his drinking problems would be difficult to manage and he would not get on with neighbours or confinement of suburban living”..
§Mrs Ragg noted that Mr Ragg is often up all hours of the night and is always very tired and needs a sleep after lunch for a few hours. He can only work for a few hours each day and some days not at all.
§Some of the property has been sold for subdivision to reduce costs. Even so the property does not pay for itself.
§Mrs Ragg says that she has been the primary breadwinner for “all of our married life and the only breadwinner for more than 20 years of it”. She carries out all the chores of shopping, wash, ironing, cooking etc.
§She says of Mr Ragg, “He really lives in a time warp now of the years of the Vietnam War and matters relating to it or friends from it. He is unable to keep up with other friends, neighbours, the children and shows little interest in whatever I do”.
7. Dr Buckley confirmed his report of 4 December 2002. He confirmed that he had treated Mr Ragg over a period of 18 years or so. He stated that Mr Ragg never spoken to him about his experiences in Vietnam for many years. He stated that Mr Ragg and he had played golf but that their friendship had ended because of Mr Ragg’s “anti-social behaviour on the golf course”. He had suggested to Mr Ragg to seek help for this. It was only after some years that he had been told of Mr Ragg’s experiences in Vietnam.
8. Dr Lichter stated that he was Mr Ragg’s treating doctor. He confirmed his two reports of 6 December 2000 and 4 March 2002. He stated that he had seen Mr Ragg on numerous occasions including monthly for a period. He said that he had seen Mr Ragg on fifteen to twenty occasions. In response to questions about the Statement of Principles, Br Lichter confirmed that in his view Mr Ragg exhibited all of the indicia set out in the relevant sections of the Statement of Principles. Dr Lichter stated that in his opinion Mr Ragg had not just developed post traumatic stress disorder, it had been there all along. He said that in his view it had got worse over the years.
9. In cross-examination Dr Lichter stated that Mr Ragg was a heavy drinker over a long period of time. However now he drinks less. Dr Lichter believed that Mr Ragg had suffered a stressor as he had seen a lot of bodies and body parts. Dr Lichter did not consider that there was another explanation for the irritable bowel syndrome and nightmares when looked at as a whole.
10. Dr Wainwright confirmed his report of 7 January 2002. He stated that he had been treating military patients for 19 years.
11. Dr Wainwright believed that his objective testing was to be accepted over the report of Dr Lichter. He had carried out psychometric testing and conducted a 2½ hour interview during which he had taken a complete history.
12. He was most concerned that Mr Ragg had not undertaken a blood and urine test as requested so that he could rule out any physical problem contributing to the psychological problems. Mr Ragg had completed the test on his own and it was to be used by Dr Wainwright as a supplement to the examination. Dr Wainwright said that he thought that by not undertaking the blood and urine testing Mr Ragg had not wanted him to have any other objective evidence upon which he could base a finding.
13. Dr Wainwright opined that Dr Lichter’s report should be discounted on the basis that it could be seen as a treating doctor advocating for his patient. He was also concerned that Dr Lichter had not carried out any objective testing.
14. Dr Wainwright said that his process was to obtain as much objective testing as he could as well as obtaining information from examination.
15. In this case Dr Wainwright did not believe that Mr Ragg showed any of the effects of post traumatic stress disorder. He said that Mr Ragg did not show any signs of distress even when describing the events to him. He stated that this was not typical.
16. Dr Wainwright said that he believed that Mr Ragg did not meet the criteria in the Statement of Principles and therefore could not be regarded as suffering from war caused post traumatic stress disorder.
17. He noted that Mr Ragg had only applied for the pension when money worries started to appear.
18. Under cross-examination Dr Wainwright would not accept that his view had been coloured by the failure of Mr Ragg to attend for blood and urine testing. Dr Wainwright did not accept that his view had been that Mr Ragg must be hiding something.
19. Dr Wainwright regarded himself as an independent expert witness. He said that he did not form a view on those issues where there was not enough evidence to form a view.
20. Dr Wainwright believed that dreams were subjective in nature. He regarded as objective consideration of those dreams that fact that Mr Ragg had no trouble speaking about them in a 2½ hour interview.
21. Dr Wainwright says that he regarded Dr Buckley may have a bias because he is Mr Ragg’s friend.
22. Dr Wainwright was unable to make any comment about Mr Ragg’s alcohol use.
23. Dr Wainwright did not believe that Mr Ragg was showing signs of isolation simply because he lived on a farm. He did not believe that the farm was that far out away.
24. Dr Wainwright said that the 50’s for people was a time for existential reflection. He thought Mr Ragg may have been angry at being retrenched.
25. In any event Dr Wainwright believed that it was scarcely credible that something that happened in Vietnam caused him to stop working 16 years later. He acknowledged that Mr Ragg’s irritable bowel could effect his mental state.
Issues
26. The issues for determination by the Tribunal in this case are whether Mr Ragg’s is suffering from post traumatic stress disorder and if so is the condition war caused. To determine this that Tribunal must have regard to the relevant legislation contained in the Veterans’ Entitlements Act 1986 (the Act) and the relevant Statement of Principles, which in this case is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999.
Legislation
27. Section 9(1) of the Act provides that:
“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 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…”
28. It is accepted in this case that Mr Ragg had undertaken operational service in Vietnam from 11 May 1967 and 2 March 1968. It is also accepted that for his claim to be successful Mr Ragg must be able to show that he suffered a stressor as required by the Statement of Principles during his time in Vietnam.
29. If it is accepted that Mr Ragg meets the definition in section 9, consideration must then be had to sections 120(1), 120(3) and 120A(3) which read:
“120(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.
…
120(3) In applying subsection (1) … 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(3) For the purposes of subsection120(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 196(2) …; …
that upholds the hypothesis.”
Consideration
Diagnosis
30. On 6 April 2001 the Department determined that the applicant’s irritable bowel syndrome be accepted under the relevant Statement of Principles as service related with effect from 26 December 2000. The applicant already had the accepted condition of Bilateral Sensorineural Hearing Loss with Tinnitus.
31. On 6 July 2001, the Veterans’ Review Board determined that, “having regard to Dr Lichter’s report, the Board was reasonably satisfied that the veteran suffers from post traumatic stress disorder and decided to vary the decision under review by including a diagnosis of post traumatic stress disorder”.
32. Dr Wainwright provided his report on 7 January 2002 after the Board had considered and determined that matter. Dr Wainwright says on page 15 of his report, “In my opinion, there is no evidence that Mr Ragg suffers from a psychiatric disorder, and the symptoms he reports are subjective and non-specific”.
33. The Board had relied on the report of Dr Lichter and particularly the following extract from his report of 6 December 2000.
“While in Vietnam Michael was attached to the light aircraft division, looking after spare parts and he flew as a spotter. He describes becoming severely ill with gastroenteritis in November 1967, losing a lot of weight and he became delirious in hospital. In Vung Tau he saw a lot of severely wounded men coming and going and describes this as a horrific experience. He never regained his usual weight and since then has suffered from weakness, bouts of stomach cramps and diarrhoea which affect his sleeping pattern. During the Tet offensive he was trapped in Saigon having gone there to learn some new system of ordinance (sic) and described it as a very scary time being in the city which was on fire with everything blowing up and they had very little in way of arms. He was unable to sleep and on leaving the city he saw a lot of decaying and bloated bodies and describes the smell as horrific.
Michael reports that since his time in Vietnam he has experienced flashbacks and nightmares involving his traumatic experiences, particularly the bloated bodies and s dream involving a body exploding. He would awaken anxious or distressed in a cold sweat and he rarely gets a full night’s sleep. He describes a personality change since returning from the war associated with mood instability. Whereas previously he would be easy going he now tends to be tense and irritable and readily comes into conflict with his wife and children. … He prefers to avoid others and perceives that he has never been able to get close to anyone since his time in Vietnam.”
34. Since then Dr Lichter has provided another report on 4 March 2002. In it he says by way of conclusion:
“During the time that I have been seeing Mr Ragg he has obtained some marginal benefit from the use of anti depressant medication Avanza, this helping to reduce his irritability to some extent but the core symptoms of his post traumatic stress disorder remain unchanged. His condition is chronic and although he may well experience some benefit from ongoing psychotherapy and anti depressant medication his prognosis is poor and no great change in his condition can be expected.
In my opinion Mr Ragg’s alcohol abuse which became much more severe when he was in Vietnam has served to help him cope with symptoms of tension and anxiety and like many Vietnam War Veterans it was intricately associated with his condition. He has continued to use alcohol in an attempt to help him relax and to try and overcome his sleeping difficulties. His alcohol abuse may have contributed to his irritable bowel syndrome as well as his dysfunctional interpersonal relationships.
In summary, I believe Mr Ragg satisfies the DSM IV criteria and the diagnostic criteria of the Statement of Principles for Chronic Post traumatic Stress Disorder and alcohol abuse and that these conditions should be accepted as service related.”
35. Clearly if the Tribunal were to accept the evidence of Dr Wainwright then there would be no need to proceed any further as Dr Wainwright is adamant that Mr Ragg does not suffer from any psychiatric disorder.
36. The relevant Statement of Principles, Instrument No 3 of 1999 as amended by Instrument No 54 of 1999, defines post traumatic stress disorder as a psychiatric condition with the following features (as derived from DSM-IV):
"(a) the person has been exposed to a traumatic event in which:
(i) 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
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g. unable to have loving feelings);
(vii) sense of a foreshortened future (e.g. does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."
37. In so far as paragraph (a) is concerned the two traumatic events described by the applicant which he says involved a response of intense fear, helplessness or horror are the period that the applicant spent in Saigon during the Tet offensive and the period spent in the Vung Tau hospital.
38. As to the former the applicant says that when the Tet offensive commenced he was on a training course and was unarmed. Prior to this Saigon had been regarded as safe from attack. The applicant was subsequently armed and prepared for an attack. It was clear that a major offensive was underway and the applicant says that he saw many dead bodies. He says he was very frightened.
39. The second traumatic event is said to have taken place in the hospital in Vung Tau, where the applicant was being treated for gastroenteritis. He says that while he was there he experienced horrific sights and sounds of wounded solders being brought in for treatment. These soldiers arrived, “wounded, maimed and terribly injured … with limbs blown off and wide open wounds”. Mr Ragg states that these soldiers were operated on all through the night.
40. As to paragraphs (b), (c), (d), (e) and (f), in addition to the applicant’s evidence, the Tribunal has had regard to the evidence of both Dr Lichter and Dr Wainwright. Dr Lichter was able to confirm that the applicant experienced enough of the above matters to satisfy a diagnosis of post traumatic stress disorder under the Statement of Principles. Dr Wainwright on the other hand gave evidence that in his view the applicant did not meet sufficient of the matters to satisfy the Statement of Principles at all.
41. On all the material before it, the Tribunal is satisfied that Mr Ragg does suffer from post traumatic stress disorder. In coming to that conclusion the Tribunal has had regard to the following:
§Dr Lichter is the applicant’s treating doctor and has seen him on numerous occasions.
§Dr Buckley diagnosed symptoms and sent Mr Ragg for treatment by Dr Lichter. Dr Buckley has treated the applicant as his general practitioner.
§Dr Wainwright appears to have formed a negative view of the applicant because he refused to attend alcohol and blood testing which Dr Wainwright sought and also refused to undergo psychometric testing.
§Dr Wainwright appears to have placed undue weight on the applicant’s refusal to have the pathology tests and undertake the psychometric test believing that Mr Ragg was hiding something.
§The Tribunal does not accept that Dr Lichter’s report and evidence should be discounted simply because he is the treating doctor and therefore is likely to advocate for his patient.
§The Tribunal accepts that a treating doctor is likely to advocate for a patient. However the issue is whether that doctor is likely to overstep the bounds of ethical responsibility and say something which is not true or embellished for the sake of achieving a particular outcome such that it would be unsafe to rely on such evidence. There is no evidence of that in the case of Dr Lichter.
§The Tribunal finds that the evidence of Dr Lichter, as Mr Ragg’s treating doctor with substantial experience and knowledge of the applicant, is to be accepted.
The Statement of Principles
42. Having determined that the applicant is suffering from post traumatic stress disorder, the Tribunal must now consider whether the applicant satisfies the relevant Statement of Principles.
43. In respect of the correct approach to be adopted in addressing this issue consideration must be had to the comments of von Doussa J in the case of Hill v Repatriation Commission [2001] FCA 1775 where considering the interpretation to be given to section 120(1) and (3) his Honour said:
“The Tribunal discussed the interpretation given to s 120(1) and (3) by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210, and the introduction thereafter of s 120A. The Tribunal noted that the interrelationship of s 120(3) with the provisions of a Statement of Principle (SoP) had been considered in this Court by Heerey J at first instance in Deledio v Repatriation Commission (1998) 47 ALD 261 and on appeal by a Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In its judgment, the Full Court (Beaumont, Hill and O'Connor JJ) said at 97 - 98:
‘... we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to an 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) [of the 1986 Act]. If no such SoP is in force, the hypothesis will be taken not 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 s 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 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’..”
44. Following this approach in the present case, it seems clear, having regard to all the material, that a hypothesis connecting the applicant’s post traumatic stress disorder with his operational service in Vietnam exists.
45. Having found that the material does raise a hypothesis, the Tribunal must consider whether the hypothesis is a reasonable one. As stated above, the parties agree that the relevant Statement of Principles in this matter is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. Factor 5 of the Statement of Principles requires that the factors that must:
“…as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or…”
The phrase “experiencing a severe stressor” is defined to mean:
“…the person experienced, witnessed, or was confronted with an event or events, that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veteran’s Entitlement 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;…”
46. The meaning of the term “experiencing a severe stressor” has been considered in a number of Federal Court and Tribunal decisions. Recently, in Stoddart v Repatriation Commission [2003] FCA 334 Mansfield J considered whether the threat of serious injury or death was to be judged objectively or subjectively. His Honour said:
“41. In my view, it is at that point the Tribunal has fallen into error. It has required a ‘threat’ to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with the threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity. I think it has thereby imported into the concept of a ‘threat’ in the SoPs more than is demanded by their wording and by their purpose.
42. The definition of ‘experiencing a severe stressor’ relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity. One can posit various circumstances in which an event or events may present differing degrees of probability or possibility that they may present the threat of death or serious injury. It clearly is a threat to be confronted with a person holding a loaded cocked gun and who is threatening to shoot. But what if, unknown to the person experiencing the circumstances, the gun is unloaded? or is a replica only? or the distance is such that the person threatening to shoot is unlikely to hit the identified target, or is only remotely likely to do so? In all but the first illustration, with the full knowledge of the circumstances, the external observer could conclude that there was no actual risk of the gun being discharged and causing death or serious injury. In the sort of circumstances addressed by the Tribunal, is there a ‘threat’ where battle stations were sounded when an attack on a vessel was anticipated, but the attack never eventuated? or the anticipated attack resulted from an error on the part of a crew member about the nature of the information received, or from misinterpretation of such information?”
In conclusion his Honour said
“54. Consequently, I consider the Tribunal erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances, to the applicant's (or another person's) physical integrity before the minimum factors in each SoP could be met.
55. In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
47. Accordingly, the Tribunal must consider whether the stressful events recounted by the applicant, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey the risk of death or serious injury or to physical integrity.
48. The applicant contends that his experiences during the Tet offensive and his experiences at the hospital amount to severe stressors.
49. In relation to his experiences in Saigon the applicant stated that when the Tet offensive commenced he was on a training course and was unarmed. Prior to the Tet offensive Saigon had been regarded as safe from attack. The applicant was subsequently armed and prepared for an attack. A major offensive was underway and the applicant saw many dead bodies. He says he was very frightened.
50. There is some doubt as to whether the applicant saw bodies in the streets in Saigon or not. Certainly the evidence was that when leaving Saigon the troops were conveyed in closed top trucks. However the Tribunal is satisfied that the troops would have seen bodies in the street. In this regard the following passage from Hill (supra) is illustrative of the approached to be adopted. In that case the applicant was a sailor on an Australian aircraft carrier who described experiencing helplessness on seeing an aviator drown when a cable snapped and a landing aircraft crashed into the sea. The sailor said that he saw an airman caught in the cockpit and drown. There was evidence that the cockpit roof had been blown clear and so the airman could not have been trapped inside.
“36. I turn now to the Tribunal's conclusion reached at its consideration of the fourth stage of the Deledio approach. Experience in the courts demonstrates that accounts given by eyewitnesses to dramatic events may vary widely. Even with simple two car accidents, courts frequently hear widely divergent accounts from different witnesses. That one person perceives events in a way that differs substantially from the perceptions of another or other witnesses does not mean that the event did not happen. In the present case there is very little evidence about the features of the Sea Venom plane. The Tribunal expresses itself as satisfied beyond reasonable doubt about certain features of the plane but beyond those features the evidence is silent. The evidence does not describe how the ejection seats worked, what equipment was ejected from the plane with them, whether the ejection seats worked in tandem or separately, what debris and other paraphernalia might land in the water with a pilot who ejected at low level, how the canopy should detach, where it might land, and so on. It is impossible to tell from the evidence what may have been in the water which may have led the applicant to gain the impression, which he did about what happened if, indeed, his present recollection of events is erroneous. The brief description of the incident in Sea Fury, Firefly and Sea Venom, is inadequate. It implies that the crew ejected whilst the aircraft was airborne. This is contrary to the description of the incident from the Naval History Directorate, which says that the aircraft had crashed over the side of the ship, and ejection occurred at sea level. The Naval History Directorate does not indicate the source of this account. It does not rule out that the best eyewitness to what happened in the water was the applicant. On the applicant's account of what happened, it is not difficult to contemplate ways in which the ejection process may not have cleared one of the occupants from the plane. The evidence does not disclose any other explanation for the loss of the observer. The respondent under s 120(1) carried the burden of establishing that the relevant fact did not occur. The relevant fact in this case would be that the veteran had experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury, or that the veteran's response involved intense fear, helplessness or horror. In my opinion a finding beyond reasonable doubt that there could not have been any person trapped under the canopy of the plane as described by the applicant does not disprove these facts. The finding would do no more than indicate that the applicant's perception of what happened was on a matter of detail wrong. The finding does not deny that the applicant witnessed the plane crash, which involved actual death. The finding says nothing about the emotional feelings experienced at the time by the applicant. It would be a strangely insensitive person who witnessed a person being drowned who did not experience intense helplessness. The Tribunal's finding does not justify a rejection of the hypothesis at the Deledio fourth stage.”
51. This approach can be said to apply both to the events in Saigon and at the hospital in Vung Tau.
52. The Tribunal is satisfied that the applicant’s experiences during the Tet offensive amount to a severe stressor under the Statement of Principles. The Tribunal finds that the applicant experienced events in Saigon that were capable of and did in fact convey the risk of death or serious injury or a threat to his physical integrity. The Tribunal is satisfied that a reasonable person with the knowledge and position of the applicant would have objectively considered the events during the Tet offensive to present a threat to their life or physical wellbeing. The Tribunal is satisfied that the applicant reacted to these events with intense fear, helplessness and horror.
53. A severe stressor can also arise under the definition in the Statement of Principles where the applicant witnessed casualties or participated in or observed casualty clearance, atrocities or abusive violence. The applicant contends that his experiences at the hospital fall within the definition of a severe stressor as he witnessed and observed casualties arriving at the hospital. Given the Tribunal’s findings that the applicant experienced a severe stressor during the Tet offensive, it is unnecessary to consider whether these incidents amount to severe stressors under the Statement of Principles.
Has the Hypothesis been Disproved Beyond Reasonable Doubt
54. Given the Tribunal has found that a reasonable hypothesis exists in this case connecting the applicant’s post traumatic stress disorder with his war service, it is necessary to consider whether the respondent has proved, beyond reasonable doubt, that the applicant’s post traumatic stress disorder is not war-caused.
55. Clearly at this point if the Tribunal was to accept the evidence of Dr Wainwright over Dr Lichter then the Tribunal must be satisfied that the hypothesis is disproved beyond reasonable doubt. For the reasons stated above, however, the Tribunal in this case is not prepared to accept the evidence and findings of Dr Wainwright. The evidence of the treating doctor Dr Lichter is to be preferred.
56. In its findings the Veterans’ Review Board noted:
“There was scant information in the material before the Board as to the veteran’s experiences in Vietnam, other than that contained in the reports of Drs Boulnois and Lichter. Having regard to the available evidence, the Board was of the opinion that the incidents referred to did not meet the definition of ‘experiencing a severe stressor’ contained in the SoP. For this reason, the Board was of the view that a reasonable hypothesis had not been raised by the material available to it to connect the veteran’s post traumatic stress disorder with his operational service.”
57. Since then the respondent has commissioned a report from Write-Way Research dated 30 July 2002 (Exhibit 7). The report (which only deals the Tet offensive) concludes:
“It is clear that the veteran was in Saigon during the 1968 TET Offensive and that he had been in the Canberra BEQ during the first night when arms had to be issued for the defence of the building. He then spent the remainder of the period in the free World Forces’ building where the Australians were concentrated. During that time he would have been rostered for security duties including patrolling outside the perimeter. On his return to NUI DAT by air from Saigon, he may have seen bodies in the streets, although that would have been unlikely.”
58. Certainly nothing in this report would of itself satisfy the Tribunal beyond reasonable doubt that the hypothesis was not reasonable. It places the applicant in Saigon at the time he says and confirms that the events described by the applicant took place.
59. The Tribunal is satisfied that a reasonable hypothesis exists which “could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful”. Therefore the Tribunal is not satisfied beyond reasonable doubt that the incapacity was not war-caused.
Decision
60. Having regard to the facts of this case the Tribunal cannot be satisfied beyond reasonable doubt that the hypothesis raised by the applicant should not be accepted. In those circumstances the applicant’s claim must succeed, effective from 26 September 2000.
61. The Tribunal therefore remits the matter to the department for an appropriate assessment.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 16 January 2003
Date of Decision 18 September 2003
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr M Smith, Departmental Advocate
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