Rankin and Repatriation Commission
[2006] AATA 341
•10 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 341
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/588
VETERANS' APPEALS DIVISION )
Re BRIAN RANKIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date10 April 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review
...........[Sgd]..........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Air Force – post traumatic stress disorder – no diagnosis of condition – causation considered - application of Statements of Principles – reasonable hypothesis of relevant relationship to service raised – even if diagnosed, condition not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 14, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Woodward v Repatriation Commission (2003) 37 AAR 424
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Ballantyne and Repatriation Commission [2003] AATA 1186
Allan and Repatriation Commission [2005] AATA 526REASONS FOR DECISION
10 April 2006 Mr RG Kenny, Member Background
1. Brian Rankin (the applicant) served in the Royal Australian Air Force from 15 February 1961 to 20 March 1981. His service included periods at Ubon in Thailand and, on 26 November 2001, he lodged a claim for acceptance by the Repatriation Commission (the respondent) of “emotional behaviour” as being related to his service. That claim was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act) and, on 1 August 2002, the respondent determined that, though Mr Rankin suffered from post traumatic stress disorder, this was unrelated to his service. That decision was affirmed by the Veterans’ Review Board on 15 June 2004 and, on 30 July 2004, Mr Rankin sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Rankin was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr M Smith. The hearing commenced on 12 August 2005 when it was adjourned at Mr Clutterbuck’s request in order for further material to be accessed by him. It was completed on 24 March 2006 and the material before the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. It is common ground that Mr Rankin served in the Royal Australian Air Force from 1961 to 1981 and that he completed a period of eligible war service in the form of operational service as those terms are defined in the Act. This was in Ubon, Thailand, from 2 June 1966 until 25 August 1966 and from 20 April 1967 until 15 June 1967. He also completed a period of defence service from 7 December 1972 until his discharge but no contentions were raised in respect of this part of Mr Rankin’s service. The issues for determination are whether Mr Rankin suffers from a psychiatric condition and whether any such condition is related to his operational service in Ubon.
4. The standard of proof for determining diagnostic matters is provided in subsection 120(4) of the Act and this requires that such matters be determined to the Tribunal’s reasonable satisfaction which imports the civil standard of proof: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
5. Subsection 9(1) of the Act provides that a condition will be taken to be war-caused if it resulted from an occurrence that happened when Mr Rankin was rendering operational service or if it arose out of, or was attributable to, any eligible service rendered by him. The standard of proof applicable to that determination is set out in subsection 120(1) of the Act which reads:
“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.”
6. The application of that provision is affected by the terms of subsection 120(3) and section 120A of that Act which require that consideration be given to any relevant Statement of Principles that has been published by the Repatriation Medical Authority (RMA).
Diagnosis
7. In Woodward v Repatriation Commission (2003) 37 AAR 424, the Full Court (at 433) confirmed that the question of whether a person suffers from a particular condition is not affected by a Statement of Principles even where it contains a definition of the condition: see also Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Deledio (1998) 83 FCR 82 at 96-97. On that basis, the question of whether Mr Rankin suffers from post traumatic stress disorder is to be assessed on the available medical evidence.
8. Psychiatric evidence in this matter comprised a report, dated 12 February 2002, from Dr Michael Likely; a report, dated 24 November 2004, and oral evidence from Dr Julian Boulnois, Mr Rankin’s treating psychiatrist; and a report, dated 10 January 2005, and oral evidence from Dr John Wainwright. Dr Boulnois has treated Mr Rankin for 12 to 18 months prior to the hearing at intervals of four to six weeks. Dr Boulnois conceded that there was some danger in a treating psychiatrist providing evidence in matters such as this but said that, as long as the practitioner is aware of this and maintains objectivity, there is no concern. He said that he was confident that he was in that position.
9. Mr Clutterbuck submitted that a diagnosis of post traumatic stress disorder should be made in this matter on the basis of the evidence of Dr Boulnois and Dr Likely. Mr Smith contended that, on the basis of the evidence of Dr Wainwright, Mr Rankin cannot be found to be suffering from post traumatic stress disorder.
10. The RMA’s Statements of Principles concerning post traumatic stress disorder is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. It utilises DSM-IV in describing the condition, identifies six criteria and lists them cumulatively in the following way:
“(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 (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, 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, attracting ICD-9-CM code 309.81.”
11. In his report, Dr Likely diagnosed post traumatic stress disorder and, in relation to the first of the diagnostic criteria in paragraph A above, described events which had been recounted to him by Mr Rankin. The first of these was his being a witness on several occasions to aircraft crashes when F4 Phantom aircraft were taking off at Ubon. He also referred to an F4 Phantom aircraft which crashed on take-off on a night mission. This caused Mr Rankin’s tin hut to be pierced by shrapnel at which time all 12 of the hut’s personnel awoke from their sleep and proceeded to their weapons pit with Mr Rankin being fearful that the pit might have sheltered snakes. A third event was Mr Rankin’s witnessing of a Thai guard commander shooting a Thai guard through the head because he was asleep on duty. For criterion B from the definition for post traumatic stress disorder, Dr Likely wrote:
“Since returning from Ubon, Mr Rankin has habitually re-experienced the above events by means of recurrent intrusive thoughts, images and dreams. For many years he experienced a recurrent dream regarding snakes and pointed out that the weapons pits in Ubon were frequently full of snakes.
He continues to experience recurrent dreams, all of which contain a violent theme.”
12. No reliance was placed by Mr Clutterbuck on the first of those matters concerning the witnessing by Mr Rankin of several aircraft crashes and no further detail was provided in respect of these. In the absence of any evidence of these events, I am unable to rely upon them for the purposes of criterion A.
13. Mr Clutterbuck relied on the other events referred to by Dr Likely. However, Mr Rankin has not described the incident which involved the shooting of the Thai guard in the terms used by Dr Likely. His evidence was that he did not see the shooting. He turned and walked away and then heard a shot. For the purposes of determining whether there was a traumatic event, there is a marked distinction between those two versions. The traumatic event relied on by Dr Likely for diagnostic purposes, witnessing a guard being shot through the head, was not an event to which Mr Rankin was exposed.
14. In making a diagnosis and attributing causation, Dr Likely has not distinguished between the events he described. This leaves the evacuation of the tin hut after the F4 Phantom accident as the remaining event of relevance to Mr Rankin. It was this event which Dr Likely said was re-experienced by Mr Rankin in the sense that he had recurrent dreams regarding snakes in the weapons pits. However, it will be seen below (paragraphs 37-40) that I have determined that this event did not occur to Mr Rankin in the manner that he described to Dr Likely. This means that none of the events, as recounted by Dr Likely, actually occurred in the manner that he described them and this means that there was no material before Dr Likely that satisfies criterion A in the Statement of Principles for post traumatic stress disorder.
15. Mr Clutterbuck also relied upon an additional traumatic event but which was not referred to by Dr Likely. In his evidence, Mr Rankin described this as the worst of all the incidents that occurred to him whilst he was in Ubon. In that sense, it is surprising that Dr. Likely was not made aware of it. It related to an occasion towards the end of Mr Rankin’s first period in Ubon when a “red alert” had been signalled during which he was armed with an automatic weapon and was required, along with other maintenance crew, to complete a pre-flight check of two Sabre jet aircraft which had to be kept in a state of constant readiness. After taking his turn in the cockpit of one of these planes to check instruments, he began alighting from it by climbing backwards down a ladder. A Thai guard poked him in the back with his rifle and said: “Stick ‘em up or I’ll shoot you”. Mr Rankin spun around and, with his weapon, struck the guard who fell to the ground before Mr Rankin realized it was meant as a joke.
16. Dr Boulnois, in his report, said that he had read the reasons for decision published by the Veterans’ Review Board in this matter and he noted that it had accepted the existence of post traumatic stress disorder. In reliance on that, Dr Boulnois concluded that the matter of diagnosis was not in issue. Nevertheless, he said that he had read the report of Dr Likely and agreed with the diagnosis provided by him. He wrote that all six of the diagnostic criteria for post traumatic stress were met in Mr Rankin’s case. Dr Boulnois did not detail any incidents that occurred to Mr Rankin in Ubon. As noted above, none of the events recounted by Dr Likely occurred to Mr Rankin in the manner described. However, the additional matter relied on by Mr Clutterbuck was included in the reasons published by the Veterans’ Review Board which were read by Dr Boulnois. Accordingly, although he did not make a specific reference to it, Dr Boulnois must have been aware of this additional incident.
17. Dr Wainwright saw Mr Rankin on one occasion for the purposes of producing his report, dated 10 January 2005. That report details three events as noted above: the evacuation of the tin hut after the explosion of an F4 Phantom aircraft on take-off and subsequently taking shelter in a weapons pit; the shooting of a guard who was asleep on duty, though Dr Wainwright recorded that he did not actually see the shooting and noted that he walked away when he realised that the guard commander was going to shoot the guard; and being placed on a red alert during which he was confronted by the guard who put the rifle in his back. Dr Wainwright formed the opinion that Mr Rankin had not been exposed to a traumatic event as required by the diagnostic criterion A for post traumatic stress disorder. It will be seen below (paragraphs 44, 45) that I have determined that the third of these incidents does not constitute a severe stressor for the purposes of the Statement of Principles on post traumatic stress disorder and I am also reasonably satisfied that it does not constitute a traumatic event as required by the diagnostic criterion A for post traumatic stress disorder.
18. In relation to criterion B for the definition of post traumatic stress disorder, Dr Boulnois wrote:
“Brian Rankin continues to experience poverty of sleep, disturbing dreams and nightmares, and the events of such may relate to his defence force service.”
That description is similar to the one provided by Dr. Likely. In his evidence, Mr Rankin said he has had frequent dreams which he described as “funny dreams”. In describing these dreams, Mr Rankin said:
“I couldn’t see his face, but he was of Asian appearance. He had a bloody big automatic rifle, and he was chasing me around and was going to shoot me.
…….
I’ve had it quite a few times of late, people running, trying to shoot you, and all that sort of thing. He had a big rifle, and I had a little, tiny revolver.
…….
I’ve had dreams about snakes. I don’t get them as often now but I had an awful lot of dreams about snakes. There were so many snakes around, I … couldn’t go anywhere without standing on them and, you know, I was absolutely terrified of them.”
19. Mr Rankin said that he had seen one snake at Ubon. This was a krait and it was at the bottom of the latrine pit. He said that he did not see any snakes in the weapons pits in Ubon although he said that he had plenty of experience in being in the presence of snakes when he was a “kid”. In cross examination of Dr Boulnois by Mr. Smith, the following exchange about Mr Rankin’s dreams occurred:
“Mr Smith: But these don’t actually refer to things which happened on service, as such, do they?
Dr Boulnois: No, they don’t.
Mr Smith: No, right?
Dr Boulnois: They – they are shadow dreams. They – they are nightmarish in quality, but they don’t necessarily specifically relate to a war-time service. No, I fully agree with that.
Mr Smith: And they don’t relate to the instance that he’s treating as the trigger of his claim?—
Dr Boulnois: The section 1 of the description. No, that’s perfectly true. You’re quite accurate.
……………
Mr Smith: He doesn’t have flashbacks, does he?
Dr Boulnois: He doesn’t specifically have flashbacks, no.”
20. Dr Boulnois is treating Mr Rankin for post traumatic stress disorder. However, in order for that condition to be a service-related one for the purposes of the Act, the requirements of the Statement of Principles must be met. That includes those requirements which comprise the diagnostic criteria. I am reasonably satisfied that none of the incidents relied upon in this matter constitute a traumatic event as required by criterion A.
21. I am also reasonably satisfied that there has not been a persistent re-experiencing of any events which occurred to Mr Rankin as required by criterion B. Dr Likely referred to dreams of Mr Rankin seeing the Thai guard being shot and seeing krait snakes in weapons pits. Dr Likely did not give evidence but the descriptions of criterion B matters which he gave in his report were also described by Dr Boulnois. In his oral evidence, unlike in his report, Dr Boulnois said that the dreams which Mr Rankin had did not reflect the traumatic events alleged by him. That was also the evidence of Dr Wainwright and I am reasonably satisfied that they correctly characterized the dreams described by Mr Rankin. Dr Wainwright was aware that Mr Rankin had been treated for “minor neurosis” in the 1970s but expressed the opinion that he no longer suffers from any psychiatric condition.
22. Two essential elements of the diagnostic criteria for post traumatic stress disorder are not met in Mr Rankin’s case. On that basis, I find that, on the balance of probabilities and for the purposes of the Act, the diagnosis of post traumatic stress disorder can not be made. Even if it were the case that the condition were present in Mr Rankin, I would also be satisfied beyond reasonable doubt that the condition was not war-caused for the reasons set out below.
Principles of Causation: The Deledio Steps
23. The Federal Court in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92, set out a four-step procedure for determining issues of causation where operational service has been rendered. The first of these steps requires that there be material which points to an hypothesis connecting the claimed condition with service. In that regard, Mr Clutterbuck advanced three contentions as noted above. These were:
(i)Mr Rankin’s hut was struck by shrapnel from an exploding F4 Phantom aircraft requiring the hut’s occupants to take to the weapons pit;
(ii)Mr Rankin was present when a Thai guard was shot by a guard commander for being asleep on duty;
(iii)Mr Rankin, during a red alert, was made aware that the Ubon base may be abandoned and he would be required to travel overland some 300 miles to Bangkok and, in that context while assisting in the pre-flight preparation of a Sabre jet aircraft, he was accosted by a Thai guard whom he struck with his weapon.
24. In the event that Mr Rankin suffers from post traumatic stress disorder, I accept that each of these would constitute a separate hypothesis and that each must be considered separately.
25. The second of the four Deledio steps requires identification of the relevant Statement of Principles. This has been identified above for post traumatic stress disorder.
26. The third Deledio step requires a consideration of whether any of the hypotheses raised is a reasonable one and this requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. For post traumatic stress disorder, these read:
“:5. (a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
‘experiencing a severe stressor’ means 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;”
27. If any of the hypotheses for the condition under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Deledio Step 3: Material relating to each Hypothesis
first hypothesis: the exploding F4 Phantom
28. Mr Rankin described Ubon as the base of the Royal Thai Air Force where there were also many hundreds of aircraft from the United States Air Force. These included F4 Phantom aircraft which operated 24 hours per day, taking off in pairs about every twenty minutes. There was also a squadron of eight RAAF Sabre jet aircraft. Mr Rankin’s mustering in Ubon was as an electrical fitter. His duties included the repair of electrical equipment and the conduct of pre and post-flight checks of such equipment on the Sabres. He described the flight line for the Sabres as being on the other side of the air strip from his accommodation.
29. Mr Rankin said that the exploding F4 Phantom incident occurred at about 3am when he was awoken in his sleep by the sound of the explosion. He said there were then two further explosions and he thought the base may have been under attack from mortar fire. He described his living quarters as a hut constructed of tin sheeting and as being the last in a line of similar buildings and closest to a fuel dump. He said he was frightened when he was awakened by the explosion and he and other airmen left the hut and went to their weapons pit. He said he had always been fearful of snakes and had been told that they were often in weapons pits. However, he said that he had never seen one there and, indeed, had only ever seen one snake in the time that he was in Ubon. He said that the men stayed in the pit for some 15 to 20 minutes and were able to leave when advised that an “all clear” applied. He said he did not get much sleep that night. He also said that, thereafter, he consumed increased levels of alcohol.
second hypothesis: shooting of a guard
30. Mr Rankin said that there was an obligation to prepare two Sabre jets for flight each morning and that, before dawn, pre-flight checks had to be made on them. There was only room for one attendant at a time in the cockpit and a range of airmen with differing musterings were required to complete their particular functions in turn. On one occasion, while he was waiting his turn to carry out the tests, he walked along the flight line where he noted a Thai guard was asleep on the ground. Shortly afterwards, he was approached by another guard who, because he had epaulettes, he believed to be a guard commander. This man asked Mr Rankin if he had seen the guard and he pointed him out. He said that the guard commander spoke to him and asked him if he knew that being asleep on guard duty was punishable by death. At that stage, Mr Rankin became frightened and he turned away and left as quickly as he could. He heard a shot and assumed that the guard commander had shot the guard. He said that he did not tell anyone about the incident and he blocked it out. He said that no-one else was there and it was dark at the time.
third hypothesis: abandonment of Ubon and assault by guard
31. Mr Rankin said that, one night at about 11 pm, he was awakened by service police and advised that there was a “red alert” which required him to assist in preparing the Sabres for take-off. He said that he and his fellow airmen were taken by truck to the aircraft lines where all of them were given weapons. He was the corporal in charge of his section and he was given an Owen gun while the others were given rifles and ammunition. Because he was given no ammunition, Mr Rankin said that he had to go to the pilot’s crew room which was nearby and where he knew the 9mm ammunition for the Owen gun was available. This was because it was the same calibre round as used by pilots for their pistols. He said that, when he entered the crew room, he became aware that there was a briefing of some description taking place and he overheard the comment that there was only enough fuel for one strafing run before the planes headed back to Butterworth. He enquired what was to happen to the ground crew and the response was that he could go to the kitchen and get a week’s supply of rations and walk to Bangkok as it was only 300 miles.
32. Mr Rankin said that he believed at the time that the weapon he was given was an Owen gun although he now thinks it might have been an F1. However, he said it was described as an Owen gun and he had been trained on an Owen gun before going to Ubon. Mr Rankin said that in the flight room he filled several magazines with 9mm bullets for use in the weapon and then went to the aircraft lines and carried out his pre-flight inspection. Mr Rankin said that he was required to take a screwdriver and a pair of pliers into the cockpit of the Sabre. When he was descending the ladder from the cockpit, a Thai guard uttered what he believed at the time to be a threat. He was carrying his weapon and immediately swung it at the guard who fell to the ground. He said that he pointed it at the person but realised it was a Thai guard.
Deledio Step 3: Reasonableness of Hypotheses
33. An analysis of the experiencing of a severe stressor involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30-31 and Woodward at 131-142. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case:
“The definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partially subjective connotation.”
34. The evidence before the Tribunal in relation to the first and second hypotheses points to circumstances which satisfy the template of experiencing a severe stressor in the Statement of Principles. That is not the case in relation to the third hypothesis which relates to Mr Rankin’s being confronted by the Thai guard on alighting from the cockpit of the Sabre, given the context of a “red alert” at the time. To the extent that being advised that Ubon might be abandoned with the ground crew having to fend for themselves by getting supplies and walking 300 miles to Bangkok was relied upon as a separate stressful event, I do not accept that it raises a reasonable hypothesis. This is because, judged objectively from the point of view of a reasonable person, in the position of, and with the knowledge of the applicant, overhearing such a suggestion is not capable of conveying a risk of death or serious injury or risk to physical integrity. It does not meet the template of the Statement of Principles in respect of threat of serious injury or death, engagement with the enemy or witnessing of casualties. That is also the case with the incident involving the guard when Mr Rankin was descending from the cockpit of the Sabre. Such an incident would point to a level of apprehension of fleeting duration being replaced, almost immediately, by the reality that the situation was not one involving danger: see Ballantyne and Repatriation Commission [2003] AATA 1186 and Allan and Repatriation Commission [2005] AATA 526. When judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant, it is not capable of conveying a risk of death or serious injury or risk to physical integrity. Nonetheless, for the sake of completeness, I have made further reference to this alleged stressor below in applying the final step of the causation analysis.
35. As the material in the first and second hypotheses points to the criteria in the factor and definition for experiencing a severe stressor in the Statement of Principles, reasonable hypotheses are raised in relation to them. This means that, applying step 4 of the procedure in Deledio, any diagnosable post traumatic stress disorder would be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence in relation to either of those hypotheses.
Deledio Step 4: Are the Conditions War-caused?
36. Writeway Research Service is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. With Mr Rankin, a report, dated 23 June 2002, was completed by John Owens who served in the RAAF for 33 years and retired in 1989 with the rank of Air Commodore. As part of his investigations, Mr Owens consulted unit history sheets and spoke to former RAAF colleagues who had served at Ubon. In addition, he conducted research in the National Library and the Australian War Memorial. Also in evidence were similar reports prepared for matters relating to other veterans including one, dated 11 November 2001, completed by John Tilbrook. Those reports contain statements made by Cedric Thompson and Hans Roser who were called to give evidence. Mr Thomas served in the RAAF from 1942 until 1979. As a Group Captain, he was the commanding officer of the RAAF contingent at Ubon in 1966 when Mr Rankin was there on the first occasion. Mr Roser served with the RAAF from 1959 until 1990. As a Squadron Leader at the time, he was the commanding officer of 79 Squadron at Ubon from April 1967 until November 1967 and, therefore, during the second period of Mr Rankin’s service there. The report by Mr. Tilbrook also contains statements made by Sir Neville Mc Namara who was commanding officer of the RAAF contingent at Ubon in 1967 during Mr Rankin’s second period of service.
F4 Phantom crash
37. Mr Roser confirmed that F 4 Phantom aircraft crashed on 27 April 1967 and 5 May 1967. As a result, debris was strewn over parts of the base. He said that the officers’ quarters, where he lived, were further up the runway than was the maintenance area and the airmen’s huts where Mr Rankin was lodged. He described the first of those accidents as occurring towards the end of the runway closer to the officers’ quarters and said that some of the debris struck his hut but that no such debris landed in the maintenance work area or in the area where the airmen’s huts were located. He said that the other accident occurred further down the runway with damage being caused to the maintenance area but he also believed that there had been no damage to the airmen’s huts on that occasion.
38. Mr Tilbrook consulted unit history sheets from 79 Squadron where the following descriptions of the two aircraft accidents is recorded in his report, dated 11 November 2001:
“27 April 67. Abridged. At 0230 hours local time an F4 aborted its takeoff roll. The pilots evacuated because of fire. Four minutes later the base was shaken by three tremendous explosions. Nothing much left of the F4. An 11 ft x 19 ft x 4 ft hole was left in the runway. The Aussie camp was showered with debris. No casualties, but some had lucky escapes.
5 May 1967. At about 230 hrs a USAF F4C crashed on takeoff, rendering the field unsuitable until about 0800 hrs on 6 May 67.”
39. In the same report, Sir Neville Mc Namara referred to a claim that debris was showered over the camp at frequent intervals. He said that the only incident during his time which caused damage to some of the buildings was that which occurred on 27 April 1967. He described extensive damage to a few buildings such as the carpenter’s hut but he said that the airmen’s quarters were further away and did not suffer any damage. He also said that he knew of no other occasion where aircraft incidents might have caused debris to fall within the camp.
40. In his evidence, Mr Rankin described the initial explosion and two subsequent explosions and that is consistent with the description above of the incident on 27 April 1967. I find that it was on this occasion that the first stressor relied upon by Mr Rankin occurred. I also accept as correct the version of events described by Mr Roser and Sir Neville Mc Namara and do not accept the evidence of Mr Rankin that his hut was damaged on the occasion of that explosion. His evidence was that he and the other occupants went to their weapons pit. After the initial explosions, there were no further explosions and there were no snakes, which seemed to be Mr Rankin’s main concern. This was in the context of his having seen only one snake in Thailand at the bottom of the latrine pit. He had not seen any snakes in a weapons pit. On the evidence before me, I am satisfied beyond reasonable doubt that this situation was not one where Mr Rankin was confronted with an event that involved actual or threat of death or serious injury or threat to his or another person’s physical integrity.
Shooting of Thai guard
41. Mr. Thomas said that he was unaware of any event concerning the shooting of a Thai guard for being asleep on duty. Further, he said that, if such an event had occurred, he would certainly expect to have learned of it. He said that, when an airman was required on the flight line, he would be in the company of a crew of men with a senior NCO. He also said that, if a shot was fired, it would be virtually impossible for other members of the crew not to hear it or to investigate it.
42. Mr Roser said that he had heard a story about a Thai guard being shot for falling asleep on duty. He could not recall where he had heard it but said that there was no official RAAF record of this though he conceded that he had not consulted the records of the United States Air Force or the Thai Air Force who co-occupied the base. Mr Roser said that he treated it as one of the anecdotes which circled the base. Mr Roser confirmed that it was necessary for a crew of maintenance workers to conduct pre-flight inspections on two Sabres which were required to remain in a state of constant readiness. However, he said that the accommodation for the air crew was only 50 metres from where the planes sat on the runway and he considered it to be totally unbelievable that the firing of a shot would not be heard by them with an immediate response activated. Further, he said that there was no shadow of a doubt that any such event would have been reported and recorded.
43. I do not accept the evidence of Mr Rankin concerning the shooting of the guard. At no stage in his evidence has he indicated that he saw the shooting actually take place. He said that he turned and walked in another direction but heard a shot. There is no evidence that the guard was killed. However, he said it occurred in the early hours of the morning in the open runway on the flight line which was some 50 metres from the premises in which the flight crew were sleeping. The proximity of the flight to the accommodation of the air crew and the fact that Mr Rankin was a member of a maintenance crew leave me satisfied beyond reasonable doubt that any shot fired in the open space of the runway in the early hours of the morning would have been noted by other RAAF personnel, reported and recorded. I am satisfied beyond reasonable doubt that Mr Rankin did not witness the shooting in the manner that he described.
Red alert and assault by Thai guard
44. In Mr Tilbrook’s report, Mr. Thomas is reported as advising that a red alert had been ordered at Ubon at 10pm on 24 July 1966 with the base being placed on full alert and with arms and ammunition being issued to all RAAF personnel. It lasted until the next day. He confirmed that ground crew were given weapons. He said that there was no record and no memory amongst his former colleagues of any occasion when there was likely to be an emergency departure from Ubon to Butterworth and that there were well-developed procedures for ground crew in the event of emergencies. Mr Owens said that the RAAF did not use Owen guns by the time Mr Rankin was in Ubon and that, even if Owen guns still had been in RAAF service, it was most unusual for an electrical fitter to be issued with one. He said there was an F1 weapon which had similarities to the Owen gun and which used 9mm ammunition but he said that it was most unlikely that a ground crew member would be issued with one. Mr Owens also said that, if the Sabres were being prepared for a departure, there would have been a full ground crew and that, in the event that Mr Rankin struck a guard with his weapon it is unlikely to have been unnoticed by others.
45. Mr Rankin’s description of the incident with the Thai guard was one which lasted momentarily. His described reaction was immediate and effective and brought the matter to an end. His realization that it was a joke was immediate. I am satisfied beyond reasonable doubt that this was not an event which satisfies the definition of experiencing a severe stressor as set out in the Statement of Principles.
46. Accordingly, even if Mr Rankin can be diagnosed as suffering from post traumatic stress disorder, I am satisfied beyond reasonable doubt that any such condition would not be war-caused.
Decision
47. The Tribunal affirms decision under review
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Robert Hayes
Legal Research OfficerDates of Hearing 12 August 2005, 24 March 2006
Date of Decision 10 April 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
For the Respondent Mr M Smith, Departmental advocate
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