DECISION AND REASONS FOR DECISION [2000] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/205
VETERANS' APPEALS DIVISION )
Re DANIEL MULVANY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr P A Staer, Member
Date30 June 2000
PlacePerth
Decision The decision under review is affirmed.
..........(sgd S D Hotop)..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Australian Army from 1968 to 1970 – applicant rendered operational service in Vietnam in 1969 – applicant subsequently diagnosed as suffering from post traumatic stress disorder ("PTSD") and Irritable Bowel Syndrome – whether PTSD and Irritable Bowel Syndrome war-caused – whether reasonable hypothesis connecting each condition with applicant's operational service – whether Statements of Principles satisfied – whether applicant experienced a stressor prior to clinical onset of PTSD – interpretation of phrase "experiencing a stressor" – whether applicant suffering from "post traumatic stress disorder , ICD code 309.81" within 6 months immediately before clinical onset of Irritable Bowel Syndrome.
Veterans' Entitlements Act 1986 ss9, 120, 120A, 196A
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 15 of 1994, as amended by Instrument No 225 of 1995)
Statement of Principles concerning Irritable Bowel Syndrome (Instrument No 103 of 1996)
Re Budworth and Repatriation Commission [2000] AATA 127
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
30 June 2000 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr P A Staer, Member
This is an application by Daniel Mulvany ("the applicant") for review of a decision made by a delegate of the Repatriation Commission ("the respondent") on 21 April 1998, as affirmed by the Veterans' Review Board ("VRB") on 17 May 1999, that the applicant's conditions of Post Traumatic Stress Disorder ("PTSD") and Irritable Bowel Syndrome are not war-caused injuries or war-caused diseases within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing the applicant was represented by Mr M Clarke, solicitor, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents') lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the parties:
Statement of Evidence of the applicant, dated 11 August 1999 (A1)
Statement of Agreed Facts, lodged on 24 March 2000 (A2).
The applicant gave oral evidence. There were no other witnesses.
The Facts
The Statement of Agreed Facts tendered in evidence (Exhibit A2) reads as follows:
"1. The Applicant was born on 25 October 1947.
2.The Applicant served in the Australian Army from 1968 to 1970 and rendered operational service in Vietnam from 16 April 1969 to 19 December 1969.
3.On enlistment, the Applicant's mental capacity and emotional stability were considered normal and he was assessed…
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- Re Mulvany and Repatriation Commission [2000] AATA 535
- Case
- [2000] AATA 535
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal centred on the interpretation of "experiencing a stressor" as it pertains to PTSD under the Veterans' Entitlements Act 1986, and whether the applicant's conditions met the criteria set out in the Statements of Principles. The Tribunal was required to consider whether the applicant's PTSD and Irritable Bowel Syndrome were connected to his service and if they fell within the ambit of the SoP concerning these conditions. The applicant's evidence and medical reports suggested a clear connection between his PTSD and a specific incident during his service, while the Irritable Bowel Syndrome claim required scrutiny to determine its war-causation.
The Tribunal found that the applicant's PTSD was reasonably connected to his operational service, specifically an incident involving rats, as his subjective response involved intense fear. However, the Tribunal did not accept that the rats incident constituted an objective threat to the applicant's physical integrity, which is required by the SoP. Regarding the Irritable Bowel Syndrome, the Tribunal determined that it did not meet the criteria for a war-caused condition as it was not established that the condition was within six months of the clinical onset of PTSD. Consequently, the Tribunal upheld the Commission's decision to deny the disability pension for the Irritable Bowel Syndrome and affirmed the decision in relation to the PTSD.
The final orders of the Tribunal were to affirm the decision of the Repatriation Commission, finding that the applicant's Irritable Bowel Syndrome was not a war-caused injury or disease, and that the PTSD did not meet the criteria for a reasonable hypothesis connecting the condition with the applicant's operational service. The Tribunal's interpretation of "experiencing a stressor" emphasised the need for an objective threat rather than the applicant's subjective fear, aligning with the submissions made by counsel for the respondent.
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
Ratio Decidendi
Legal Principle Established
Mr Ponnuthurai (for the respondent) submitted that para (a) of the definition of the phrase "experiencing a stressor" was to be interpreted as referring to events involving threatened death or serious injury in a purely objective sense – that is, where the threat of death or serious injury was real, and not merely subjectively perceived or imagined. He submitted that only para (b) of that definition referred to the person's subjective reaction to the relevant event in terms of "intense fear, helplessness or horror". He referred to dictionary definitions of the words "threat" and "threatened" and cited various authorities, in particular, Re Budworth and Repatriation Commission [2000] AATA 127.Consideration of Submissions and Issues PTSD As regards the PTSD issue, the Tribunal notes that both Dr Risbey and Dr Burvill diagnosed the applicant as suffering from PTSD as a direct result of the rats incident and the Tribunal is satisfied that that medical evidence (which was uncontradicted), together with the applicant's evidence, points to a hypothesis connecting that condition (as diagnosed) with the circumstances of the applicant's operational service. The question then arises whether that hypothesis is a reasonable one. That depends on whether the hypothesis fits the "template" in the SoP concerning PTSD – that is, whether it contains at least one of the factors that, according to that SoP, "must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting" PTSD with the circumstances of the applicant's operational service. The relevant minimum factor in the present case is that referred to in para (a) of cl 1 of the SoP, namely:"experiencing a stressor prior to the clinical onset of post traumatic stress disorder." The Tribunal finds, on the basis of the applicant's evidence, that his subjective response to the rats incident involved "intense fear" on his part in that his immediate belief was that he was about to be killed or seriously injured by the enemy. Paragraph (b) of the abovementioned definition is, therefore, satisfied. Did the rats incident, however, constitute "an event that involved actual or threatened death or serious injury, or a threat to the [applicant's] physical integrity", within the meaning of para (a) of the abovementioned definition? The Tribunal accepts Mr Ponnuthurai's submissions regarding the appropriate interpretation of para (a) of the definition of the phrase "experiencing a stressor" – that is, the Tribunal accepts that para (a) refers exclusively to objective considerations, namely, events which in fact involve actual or threatened death or serious injury or a threat to one's physical integrity, whereas para (b) refers exclusively to subjective considerations, namely, the particular person's own subjective response to the relevant event. In the Tribunal's opinion the following definitions in The Macquarie Dictionary are apposite:"threat … 2. an indication of probable evil to come; something that gives indication of causing evil or harm.""threaten … 2. to be a menace or source of danger to … 4. to give an ominous indication of … 6. to indicate impending evil or mischief.""physical … 1. pertaining to the body; bodily … "."integrity … 2. the state of being whole, entire, or undiminished … 3. Sound, unimpaired, or perfect condition …".