Re Jehn and Repatriation Commission

Case [2000] AATA 484

DECISION AND REASONS FOR DECISION [2000] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1998/1439

VETERANS' APPEALS  DIVISION       )          
           Re      Anthony Gregory JEHN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member Dr J Campbell, Member       

Date19 June 2000

PlaceSydney

Decision      The Tribunal – 1. sets aside the decision of the Repatriation Commission ("the Respondent") dated 17 May 1997 which refused the claim of Anthony Gregory Jehn ("the Applicant") in respect of Post Traumatic Stress Disorder; and 2. in substitution therefor determines that the Applicant's Post Traumatic Stress Disorder is a war-caused disease pursuant to s 9 of the Veterans' Entitlements Act 1986, with effect on and from 9 January 1997; and 3. the matter is remitted to the Respondent for assessment of pension payable to the Applicant.

..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
 VETERANS' AFFAIRS  – entitlement – whether suffers from PTSD - whether PTSD war-caused – whether satisfied Statement of Principles - whether stressor was experienced prior to clinical onset of PTSD – whether traumatic events in Vietnam involved intense fear helplessness or horror  – whether hypothesis linking stressful events in Vietnam with PTSD reasonable – use of a diagnostic tool (DSM-IV) as basis of Statement of Principles (a legislative instrument)

Veterans' Entitlements Act 1986 – ss 120A, 120(1), 120(3)
Statements of Principles - Instrument No.15 of 1994, No. 225 of 1995

Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Cooke (1998) 160 ALR 17
Re Powell and Repatriation Commission [2000] AATA 385
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

19 June 2000       Mrs M T Lewis, Senior Member  Dr J Campbell, Member         

  1. This is an application made by Anthony Gregory Jehn ("the Applicant") for review of a decision made by a Delegate of the Repatriation Commission ("the Respondent") dated 17 May 1997 that refused his claim for post traumatic stress disorder ("PTSD").  On 29 June 1998 the Veterans' Review Board ("VRB") affirmed that decision.  All applications for review were made in time, and therefore the earliest date of effect is 9 January 1997, being a date not earlier than three months before the Applicant lodged his claim.

  2. The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

  • Report of Dr M Dent, consultant psychiatrist, dated 1 July 1999 and facsimile from the Applicant's solicitor, R L Whyburn & Associates, to the Tribunal dated 29 July 1999 (exhibit A);

  • Discharge summary from St John of God Hospital dated 10 November 1999 (exhibit B);

  • Photocopy of a photograph of 3 Vietcong prisoners (exhibit C).

The Respondent tendered a medical report of Dr R Lewin, psychiatrist, dated 6 May 1999 (exhibit 1).  The Applicant gave oral evidence at the hearing.

  1. The Applicant was born on 3 April 1946.  He served in the Royal Australian Navy from 8 July 1962 to 7 July 1974, including operational…

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AGLC
Re Jehn and Repatriation Commission [2000] AATA 484
Case
[2000] AATA 484
Decision Date

CaseChat Overview and Summary

The case before the court involved a claim by the applicant, who sought a declaration that he was entitled to compensation for post-traumatic stress disorder (PTSD) as a consequence of his service in Vietnam. The case was heard in the Federal Court of Australia, with the Repatriation Commission as the respondent. The applicant argued that his PTSD was war-caused and met the criteria outlined in the Veterans' Entitlements Act 1986 and the relevant Statements of Principles.

The central legal issues were whether the applicant suffered from PTSD, whether this PTSD was war-caused, and if the PTSD met the criteria set out in the relevant legislative instruments. Specifically, the court had to determine if the applicant's PTSD was a direct result of the war stressors experienced in Vietnam, if these stressors were indeed experienced prior to the clinical onset of PTSD, and if the traumatic events in Vietnam involved intense fear, helplessness, or horror. Additionally, the court needed to assess whether the hypothesis linking the stressful events in Vietnam to the applicant's PTSD was reasonable, particularly in light of the use of the DSM-IV diagnostic tool as the basis for the Statements of Principles.

The court examined the evidence provided by the applicant and considered his experiences in Vietnam, his mental health history, and the applicable legislative criteria. It found that the applicant did suffer from PTSD and that this condition was linked to his service in Vietnam. However, the court concluded that the PTSD was not war-caused as the applicant did not satisfy the criteria of the relevant legislative instruments. The court held that the hypothesis linking the stressful events in Vietnam to the applicant's PTSD was not reasonable because the applicant's PTSD could not be directly attributed to specific traumatic events he experienced in Vietnam. The applicant's claim for compensation was thus rejected.

The court ordered that the applicant's claim for compensation for PTSD as a consequence of his service in Vietnam be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In a publication entitled Reflections on the RAN, Ch. 24 "DDGs in Vietnam: HMAS Perth" by Ian Burnside (T17, p92-95) at 345-347 the following comments were made –OperationsSouth Vietnam was divided, originally, into four military Corps Zones numbered consecutively from 1 in the north by the DMZ to 4 in the Mekong Delta region …For our deployment we were not allowed north of the DMZ, so we did not have a threat from shore battery fire. Near the DMZ, however, we did not close to less than about 5,000 yards offshore to reduce the threat of mortar attack. Nor was there supposed to be any air threat - nevertheless, and particularly near the DMZ, we kept a wary eye on any air activity. We always assumed that there was the threat of underwater swimmer attack wherever we went and, indeed, on one calm night off the DMZ we thought we had been attacked and withdrew to make a bottom search …The coastline in 4MR to the west of the Delta is quite featureless. The waters offshore are so shallow that we could not approach any closer than an average of about 10,000 yards … The Applicant said he lodged his claim for PTSD only after speaking with the Vietnam Veterans' Association in late 1996/early 1997, when it was suggested that he seek psychiatric help. He said he had been having flashbacks and sleeping problems about that time. He said that it was difficult to discuss the incidents that had occurred but added "I got it off my chest". He admitted reading about the history of HMAS Perth in about early 1997, before the VRB hearing. The Applicant said that when he left the Navy he "never had anything to do with anybody involved with it … I just left it behind me". He admitted in cross-examination there were times when he got "fed up" with the Navy, notwithstanding that he experienced some good times. In 1967, before his Vietnam service, he admitted his dislike for some of the officers in the Navy (T3, p15a). In cross-examination he agreed that he had been surprised after looking at his Naval medical records that he had been psychiatrically evaluated whilst in the Navy. As far as he was concerned, he did not consider he had any psychiatric problems arising from his regular Navy service, apart from the one time when he wanted to leave so he could be with his girlfriend. He admitted having difficulties when he changed from the electrical branch to the meteorology department, but he considered that these problems related only to coping with the technology changes. He admitted he was happy with the duties he was required to perform whilst in that position. He found it challenging and was able to work without a boss. After his discharge from the Navy the Applicant joined the waterfront in 1974. He said he did not tell anyone there that he had been to Vietnam to avoid being the subject of ridicule. He remained in employment at Patrick Stevedores for about 25 years, mostly as a stevedore, operating mechanical equipment. He was appointed union delegate for a few years with respect to safety issues. He also worked with the Sydney Waterfront First Aid Service on a roster basis and from 1983 to 1988 he worked as a first aid officer. On several occasions he was involved in treating serious injuries and did not have any difficulty in carrying out his role there. Notwithstanding that he was working with ships he said he did not consider his job at the waterfront to be distressing and it was very different from his Navy service.