Re Powell and Repatriation Commission

CATCHWORDS – VETERANS' AFFAIRS – disability support pension – whether applicant suffers from lumbar spondylosis or Post Traumatic Stress Disorder ("PTSD") – whether either condition is war-caused – lumbar spondylosis not war-caused as not within template of Statement of Principles – PTSD war-caused – decision varied.

Acts Interpretation Act 1901 - s 50
Veterans Entitlement Act 1986 – ss 5AB, 6, 7, 8, 9, 13, 120, 120A, 196B,

Bushell v Repatriation Commission (1992) 175 CLR 408, (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Cowie and Repatriation Commission – unreported, [1999] AATA 334, 19 May 1999, S A Forgie, Deputy President, Brigadier IRW Brumfield and Dr JB Morley (Members)
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Jackson v Secretary, Department of Health (1987) 75 ALR 561; (1987) 14 ALD 153
Medical Benefits Fund of Australia Ltd v Pullinger (1990) 95 ALR 463
Murray v Griffin (1990) 92 ALR 86
Ogston and Repatriation Commission (unreported, 1April, 1999, NG 773 of 1998)
Re Ablett and Repatriation Commission (1997) 47 ALD 796
Re Ogston and Repatriation Commission (1998) 27 AAR 176
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Keeley (unreported, [2000] FCA 532, 28 April 2000)
Repatriation Commission v McLean (1998) 50 ALD 149; (1998) 27 AAR 144
Slattery and Repatriation Commission (1998) 52 ALD 90

DECISION AND REASONS FOR DECISION [2000] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1997/696
VETERANS' APPEALS DIVISION  )

Re RODNEY NORMAN POWELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 19 May, 2000

Place Brisbane

Decision The Tribunal:

1.sets aside that part of the decision of the Repatriation Commission dated 31 July, 1996 as affirmed by a decision of the Veterans' Review Board dated 29 April, 1997 in so far as it determines that the applicant's post traumatic stress disorder is not war-caused within the meaning of the Veterans' Entitlements Act 1986; and

2.substitutes for that part of the decision a decision that the applicant's post traumatic stress disorder is war-caused within the meaning of the Veterans' Entitlements Act 1986; and

3.adjourns consideration of assessment to a later date; and

4.otherwise affirms the decision under review.

S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Mr Ronald Powell, applied for review of a decision of the Repatriation Commission ("the Commission") dated 31 July, 1996 to refuse his application for disability support pension for post traumatic stress disorder ("PTSD") and lumbar spondylosis. This decision was affirmed by the Veterans' Review Board in a decision dated 29 April, 1997.

At the hearing, Mr O'Gorman of counsel represented Mr Powell and the Commission was represented by its advocate, Mr Dobbie. The documents provided by the respondent in accordance with s. 37 of the Administrative AppealsTribunal Act 1975 ("T documents") were admitted into evidence along with other documents to which I will refer during these reasons. Mr Powell gave evidence in support of his case together with his wife, Mrs Carole Anne Powell, his brother, Mr Alan Powell, Dr Parsons, Mr Creswell and Dr Crompton and Dr May, while Dr Hutchinson, Dr Boys and Dr van der Walt gave evidence in support of the Commission's case.

THE ISSUE

The issue is whether the Repatriation Commission is liable to pay a disability support pension to Mr Powell in accordance with the Veterans' Entitlement Act 1986 ("the VE Act"). This issue requires the determination of two questions: whether Mr Powell suffers from post traumatic stress disorder and lumbar spondylosis; and, if so, whether those conditions are war-caused within the meaning of s. 9 of the VE Act.

BACKGROUND

Mr Powell was born on 1 January, 1944 and married his wife on 14 January, 1967. They have two children; a son born in 1968 and a daughter born in 1970. He joined the Australian Army on 1 October, 1962 (T documents, page 1) and held the rank of Sergeant when he was discharged on 19 October, 1972 (T documents, page 5). Mr Powell had service in Vietnam from 3 December, 1970 (T documents, page 4) until 28 October, 1971 (T documents, page 5). He was a supervisor of Army messes at Nui Dat.

EVIDENCE
Mr Powell's experiences in Vietnam and their effect upon him

Before Vietnam

Mr Powell said that he had no back trouble before he joined the army. He played rugby league, cricket, tennis, was a lifesaver and owned his own boat. During basic training he said he had "no problems whatsoever".

Arriving at Nui-Dat

Mr Powell said that he travelled from Saigon to Nui-Dat by plane. As they were about to land, the pilot told them that the plane was being fired upon. As a consequence the landing was aborted and the plane circled until the place was secure.

Five day leave from Vietnam

In December of 1970 when Mr Powell left for Vietnam, Mrs Powell said, their second child, a daughter, was a few days old. At that time, her husband had been easy going, placid and relaxed. Mrs Powell said that she was staying at her parents' home when her husband returned from Vietnam on leave for a five day period in 1971. At that time, he had been in Vietnam for about six months. She said that she noticed a change in him straight away. She picked him up by herself and drove with him to her parents' house. Her father brought the children outside to greet them and Mr Powell got out of the car and brushed right past her father, who was holding their daughter. Mrs Powell's father said "look, you have got a daughter here" because it was as if Mr Powell had not noticed her. To Mrs Powell that was a very big sign that her husband had changed.

Mrs Powell said that her husband was withdrawn and she could not get close to him. He did not take much notice of his new daughter. Indeed, he did not take much notice of any of the family, including their two and a half year old son, to whom he had always been close. Mrs Powell said that they did not do much in those five days. They mainly stayed at home or went for a drive. She said they could not communicate.
While they were staying at her parents' house, Mrs Powell said, they saw on the news that five soldiers had been killed in Vietnam. She said that a newsreader told the story and general pictures of Vietnam were shown on the television. Mrs Powell understood that the deaths must have been reported on the same day as they occurred. At the time, she was the only person in the room with her husband. She said her husband's reaction was one of shock, disbelief and horror, "to see it; to know it happened". He told her then that he did not want to return to Vietnam because, from one second to the next, his life could be "wiped out".

In his written statement, Mr Powell described his feelings after hearing the news:
"While I was on R & R (Rest and Recuperation Leave) in June 1971, five of my mates were killed in an action at Long Khan. To me this was a devastating feeling as I had known them personally, had worked with them, and actually had a closer association with them. I could not get it out of my mind after and even to this day, I still think of them, the way they died, and what a waste of it was. Hearing this news whilst on R & R, I was left with feelings of shock, fear, anxiety, apprehension and helplessness knowing full well that I had to return to Vietnam to complete my tour of duty. What lay in store for me, was I next? The only pain worse than this was being branded a coward by not returning. I was numb when I arrived back." (Exhibit A, page 3)

In cross-examination, Mr Powell agreed that he saw the news of the deaths of the soldiers on the same day as they had occurred. There were no photos of the bodies as there were no bodies to be found; they had been "blown up". He said that he felt shock, fear, anxiety, apprehension and helplessness. "They worked for me", and were "good friends; mates". He said that more than anything else he felt guilty that he was not there in Vietnam.

Sandbagging the tent

Mr Powell said that he injured his back in 1971 when he was re-sand bagging his tent to protect it from enemy mortar attacks. He described the sandbags as being placed right around the tent and in front of it. They stood three feet high and each was the size of a cement bag. As he shared the tent with a Warrant Officer who did not assist him, Mr Powell said that he had to redo the sandbagging by himself. The job had to be completed within a day. He said that he had done most of the bags and only had another ten or so to finalise the job when he injured his back. Mr Powell said that he experienced severe and intense pain which was down around his belt line a little lower than his waist. He could not straighten his back. It was "excruciating pain" which eased for a fraction when he stood up but was still there. He said he could not continue with the sand bagging.

Mr Powell said he sought treatment from the medical orderly to ease and control the continual aches and pain he suffered at the time. There was "niggling pain" in his back for a week but it did not really restrict his duties because, as a supervisor, he could return to his tent when he needed to rest. Mr Powell said that his back hurt him when he walked and restricted the manner in which he could walk. Mr Powell said that after the week of pain there was still "a little pain" if he twisted or turned too quickly or at the wrong angle. The pain would fade away, depending on what he was doing. Sometimes he would have no pain for a week and then it was back and always at the same point.

In cross-examination, Mr Dobbie asked Mr Powell why he did not go to a Regimental Aid Post ("RAP") on this occasion when he had reported a knee injury during recruit training and a wrist injury as a result of playing football. Mr Powell said that he did not go to a RAP because he did not want to be called a malingerer or put on a show. He said that the knee and wrist injuries had occurred before his service in Vietnam. When asked why he had not reported the back injury to the RAP when he had reported to the RAP for shigella dysentery on 6 May, 1971, "pain on swallowing cold drinks" on 2 September, 1971 and a laceration from a surf board injury on 12 October, 1971, Mr Powell responded that those injuries could be seen whereas his back injury could not be seen. When he suffered from "pain on swallowing cold drinks", there was something to see as his mouth and tongue were ulcerated.

Mr Powell said that the tablets he was given did not control the pain. The pain was not so bad that he was "laid up in bed" but he did have difficulty getting out of bed in the mornings. There was no follow up treatment. He confirmed that he continued to do duties but went back to the tent to "rest up". As he was the supervisor he had less strenuous work. He said that he suffered from the symptoms he had described for at least one week but "put up with the pain".

In response to Mr Dobbie's proposition that there was no evidence that the sandbagging incident had occurred. Mr Powell responded that it had been a "big mistake" not to tell the officials about his back when he was leaving the Army. All he had wanted at the time "was out". Mr Powell said "I do not like being called a liar. I'm no liar. I tell the truth."

Mr David Norman Dudley signed a statutory declaration dated 5 March, 1997 which states:

"During 1971 – approximately February/March whilst serving at Nui Dat during the Vietnam conflict, I observed Mr Rodney Powell re-sandbagging and pegging a military tent. During this process, I recall Mr Powell complaining of pain and injury to his back." (Exhibit D)

The patrol and cache of ammunition

Mr Powell was based with the 1st Australian Logistical Support Group. He said that there, army personnel were free to come and go. Infantry would patrol the wire perimeter and sentries were posted at the gate. No Vietnamese civilians were allowed inside the compound. There was a wire and mine barrier.

Mr Powell's duties as a mess supervisor included setting tables, undertaking bar attendant duties, managing the stewards who waited on the tables, organising the rosters and ensuring the officers' dining room was adequately set and attended to. Mr Powell said that he had no control over the "other ranks" mess. He worked at "HQ Company" in the main compound. He did not supervise cooks but supervised the stewards and served meals to officers.

Mr Powell said that his duties also included preparing for and performing notified patrol duties, including "ammunition supply, rations, special weapons, radios and delegation of patrol duties" (Exhibit A, page 2). Those patrols were made in the area surrounding Vung Tau. Mr Powell said that he would go on two patrols in a month and then not again for a couple of months. Mr Powell said that he did so as his "blokes" would go out and he wanted to be with them. He could have said "no", but said "yes" because he thought it was his duty to be with them.

Mr Powell stated in his written statement that he also had to participate in patrols of the surrounding area at Vung-Tau. He wrote:
"As patrol commander was the person responsible for the provisions, weapons and ammunition, safety of troops, delegation of patrol duties, radio communications and reporting. This led to great stress for which self administered drugs were taken." (Exhibit A, page 4)

Mr Powell said that when he was a mess supervisor at Vang Tau superior officers ordered him to lead a patrol to scan the area toward Long-Hai Mountains. He had never been in charge of a patrol before and was responsible for five other men. Mr Powell said that he does not know why he was put in charge.

Mr Powell said he had been worried about his life in previous patrols but that was part of the job. He had never come across the enemy but there was always the threat of their being there. He knew he would be told what to do and did not have to make decisions. With this patrol, however, he was in charge and had the responsibility of "bringing them back home safe." The responsibility weighed heavily upon him. He had not been trained to be in charge. All he had done was a three week course at Canungra, which involved rifle shooting, map reading and jungle training.

In cross-examination Mr Powell explained that he had "helped make up numbers" on earlier patrols. This particular patrol had been different from other patrols because senior NCO's had told the rest what to do on the earlier patrols. On this patrol, he was the most senior soldier. He said he "was not supposed to go on patrols".

Mr Powell said that his unit came over a sand dune. He saw the Viet Cong walking along with two boxes of ammunition. He said "take cover." The Viet Cong heard him and "took off into the bush". He told his Corporal to get on to the radio to get back up and inform them that they had contact. Mr Powell asked for "permission to open fire?". Mr Powell said that he could see the Viet Cong in the bush only fifty feet away from him and his patrol. He could see their heads and rifles. He could actually see their faces. Their rifles were pointed at him and his patrol. Mr Powell said that he and the other members of his patrol were lying in the bush with their own guns pointing back at the Viet Cong. After about ten minutes, which Mr Powell said "felt like hours", the order came back not to open fire and to withdraw as there was no one to send as back up. Mr Powell requested a helicopter but his request was refused. In cross-examination, Mr Powell said that he had sought instructions because he was a non-combatant soldier and had to get permission to fire. The patrol pulled out backwards. First, they crawled backwards and then walked backwards for "quite a while." Mr Powell said in his statement that:

"As we backtracked (crawled backwards), it went through my mind once again the life threatening position the patrol was in and the fear and terror I felt, knowing any one of us could be killed at any time. I have no doubt about this at all, not when there are guns pointed at you." (Exhibit A, paragraph 9)

Mr Powell said that he reported the incident to the Company Sergeant Major ("CSM") who told him to do a report. He did one and the CSM read it, screwed it up and threw it into a bin. The CSM said "forget about it; do not worry about it." Mr Powell was "very disgusted" because their lives had been at risk and the CSM was not interested. Mr Powell said "it really sort of hurt me" to treat something so serious as if it was of no consequence.

Mr Powell wrote of his feelings about the CSM's position in his written statement:

"The report on this patrol was scanned by the Company CSM who scoffed at its contents, threw it in the bin and told me to forget it. He thought he was GOD when it came to his troops but this was one failure that he would never accept. His orders like this could not be obeyed. By this I mean that it sounds easy, looks simple, but how does one dismiss from his mind the fear, the anger, the frustration, the betrayal by one's leaders, not to mention the thoughts of how many lives were taken and equipment etc., destroyed using the ammunition because the CSM did not believe in action." (Exhibit A, paragraph 9)

In cross-examination, Mr Powell said that he felt betrayed by his leaders for not being properly prepared or being told what to do.

Collecting supplies at Vung-Tau

Mr Powell's duties as mess supervisor at Vung-Tau included collecting fresh supplies of vegetables, fish, and, more rarely, meat from Vietnamese road stalls and markets. He collected them in a vehicle with three of his men and an interpreter. These trips often involved his being driven down dark alleys from which the only exit was to reverse. Mr Powell said he had concerns about these tasks because, in Vietnam, there was a hidden enemy and he did not know who the enemy was. Mr Powell said that all Vietnamese dressed in black, whether they were Viet Cong or not. He said he did not know if he would be shot or "mined". He said that if Viet Cong came out of the houses in the alleys, he and his men would be "minced meat". In Vietnam Mr Powell said that he was never safe as he did not know who the enemy was. He distinguished the situation in Vietnam from that in Word War II. In the latter, there was a front line and, behind that, a person was safe. In Vietnam a person could be walking down the street and be shot or attacked by grenades from a passing motorbike. In his written statement, Mr Powell said:
" ... Driving up and down their putrid and stinking alleyways was very stressful and nerve racking. I was in constant fear of my life, always looking over my shoulder because no one ever knew who was there." (Exhibit A, page 4)

Mortar attacks at the compound at Nui-Dat

Mr Powell said that the compound at which he was stationed in Vietnam came under mortar attack "every so often" to "keep the Australians honest" by letting them know that the Viet Cong were still there. If the attacks had been on a regular basis, he said, they would have been in the bunkers all the time. In cross-examination, Mr Powell said that he was in the bunker and did not know how far away the mortars landed from him.

The luncheon at Long-Hai Mountains

Mr Powell was ordered to provide a picnic luncheon at the Long-Hai Mountains. His statement explained his duties on that day:

"I was ordered to take a single vehicle (land rover) with trailer and provisions and three other men (stewards, non-combatant) to provide a luncheon for the Brigadier, his Vietnamese girlfriend and other staff officers on the beach at the end of the Long-Hai Mountains. This means that tables, chairs, food etc, be loaded into a vehicle and then this single vehicle was expected to travel through unsecured territory unescorted, set up for and provide the meal, strip away and return to Nui-Dat. The VIPs were choppered in and out and we were continually on guard for expected contact during this time of travel, preparation and completion. The threat of rocket or mortar attack and also mined roads were uppermost in all our minds, especially mine as Senior NCO at this duty. We had to risk our lives for a moment of grandeur for a non-combatant officer." (Exhibit A, page 2)

In his oral evidence, Mr Powell said he felt disgusted by this task as they were in a war zone and were sent out for a picnic. He said they had no cover, and could have been attacked by mortar at any time. He said, "we were sitting ducks". The reason why he was so concerned was because the area was a "stronghold for Viet Cong". His written statement expressed similar emotions:

"While in this position, my feelings were of complete hopelessness seeing that there was no cover anywhere, or time to prepare defensive positions. We were, then, put in this life threatening position for such a meaningless reason. It was not just being on the beach, but having to drive through enemy territory unescorted knowing that we could have been attacked at any time on those roads. What value is put on a soldier's life? The intense fear that I felt, I will never forget and to this day I often find myself in a cold sweat thinking about it." (Exhibit A, page 2)

Mr Powell took six photographs of the picnic which were admitted into evidence. He said that he took them because he did not think that it was "the right thing", and he thought that the picnic was "not on" in a war zone. The photographs show a table and chairs for 19 people set up on a beach; two helicopters arriving at a beach with a soldier walking along the beach; a group of soldiers and a woman having lunch; Mr Powell digging a hole, after the group had left, to bury left over crabs and prawns; and the ruins of a building. Mr Powell said that the building had been bombed by an American B52 bomber. He said that he had taken the last photograph to show the area and to show where the B52 had bombed. That was "as far as that road went". Consequently, apart from the ocean, there was nowhere for his team to go if they were attacked. He said they would "never get off that beach".

In cross-examination, Mr Powell was asked whether he had any resentment for having to arrange the luncheon on that day. He responded that he did not, and did what he had to do. He did not, however, think that it was the "right thing" to do. He later said that he had felt disgusted with his superiors. He did not know how they could do something like that in the middle of a war zone. He reiterated that, while on the beach or travelling to it, he was never attacked nor had any contact with the enemy but said that he was afraid of attack. Mr Powell said that he was on "full alert the whole time" and was waiting for an attack. He had never been trained for action as he had only completed the basic training and that was "nothing like what the infantry soldiers were taught". He said that he did not know if the officers were scared.

After Vietnam

Mr Powell said that he left the army in October 1972. He said that when he returned home, he was called a "baby killer" and was told never to wear his uniform in public. He said that he did not even realise what was going on. The day after he returned from Vietnam, Mr Powell went with his father-in-law to have a drink. He said that "a bloke" went to shake his hand but when he learned that he had just returned from Vietnam, the bloke pulled his hand back and walked away.

Mr Powell said that he could not settle and just wanted to be on his own. He worked at a service station; in a fibreglass factory and at an Endeavour workshop before he found work as a truck driver in 1973. Until 1996 he said, he drove trucks. He did this job because he did not want to talk to anyone. Mr Powell made deliveries to shops but because he could not bring himself to be close to people, he started interstate driving for four years and then did semi-tipper driving for the local council.

Mr Powell said that he drank "quite a bit" when he returned from Vietnam. He would drink six large home brew beers each night and sometimes drink sherry as well. While he was often sick, he would always "front for work" as a truck driver. He said in cross-examination that he considered himself able to safely drive trucks. Also in cross-examination, Mr Powell was asked whether the thought of being out of work aggravated his PTSD. He replied that he did not know, but thought that the PTSD had caused him to be out of work.

Mr Powell said he pushed his family aside as well. Prior to Vietnam, he had a very good relationship with his wife whom he had know for four years before they married. He also loved having his son around. After Vietnam, however, he "could not sort of be close". He did not even know his daughter was there. He did not want contact with either child and his marriage deteriorated. Mr Powell said that he did not listen to what his wife said, went into a shell, would not talk to her and would just "sit in the corner". At the time, he said, he "had a lot of hate". The reason for his hate was his inability to understand how returned servicemen from Vietnam could just be as "nothing". Mr Powell said that he would get anxious very quickly with his family. He would have panic attacks and "sort of explode" at anything. The panic attacks could happen in the middle of a conversation and happened quite regularly. He said that when he came back on leave in the middle of his service in Vietnam, he was always thinking about "over there". After the conclusion of his service in Vietnam, he was more reserved, as if he were "trying to hide behind a partition somewhere". He did not want to be visible, to see anyone or go anywhere. He would not go outside if he was not drinking. Mr Powell said, even today, that he can not go into crowds of people.

Mr Powell said that his nightmares started within three weeks of his getting home. He said that he has them "quite often". At times, he may have two or three in a week and, at others, only have one a week. The nightmares are almost always about the same thing - mainly "that patrol". That over-ruled everything else. There were also thoughts of the picnic in his mind. Mr Powell said that he "pretty well relived it" with parts and new bits "jumbled up", but "always Vietnam". Mrs Powell used to wake him up at night because he would be screaming out. If she did not wake him, he would wake up absolutely saturated at different points of the dream. Once awake, he would be up for a couple of hours, smoke and look out the window into the darkness. He would go back to sleep only if he had "booze".

Mr Powell said that the nightmares were the reason why he started to drink. Before he had joined the army, he was not allowed to drink as he was not the legal age. Even when he was old enough to drink lawfully, he did not drink much at all. He had an occasional drink to "bond with the boys" but nothing so that he would feel "under the weather." In Vietnam, Mr Powell said, he would have two drinks in a night and then have no more for a week. When he got back, he started drinking half a bottle of beer each night, then one and then more and more as the nightmares worsened. The number of bottles he drank rose to half a dozen and, if that were not enough, he would walk to the hotel and buy a flagon of sherry. If he bought sherry, he would drink almost half of the flagon and sleep on the beach. His wife would find him on the beach the next morning. That would happen about once each week.

In cross-examination, Mr Dobbie asked Mr Powell if he became aggressive when people do not give him what he wants. Mr Powell responded that he is upset about what happened "over there" and that he has nothing against "them" now

Mrs Powell described her husband's employment and behaviour after his return from Vietnam. Her husband secured employment as a truck driver a few months after his discharge from the Army. She said that he worked as a truck driver on and off until 1995. Other employment included work as a bar attendant for a couple of months. Mrs Powell said that her husband had not been a heavy drinker before his service in Vietnam but that, after Vietnam, there was a "slow build up". In the years that followed, his drinking was very heavy. He has since been a heavy drinker on and off all the time. Mrs Powell said that she did not know of him to drink while he was driving.

In her statement, Mrs Powell said:
"Following the completion of his tour of duty and his subsequent return to Australia, major changes in personal habits, his attitude towards his career in the defence forces and to those who used to be dear to him became evident. Rodney was a continually hostile person, withdrawn and sought solace in alcohol abuse, did not want to talk about anything, even to the point of walking out if confronted about his obnoxious behaviour. This almost caused a marriage breakdown but I realised that it would take some time, some T.L.C. and some readjustment by both of us to make things work. Many was the time I would find him drunk on the beach and generally trying to get away from it all.
I always remember when my mother visited us from Victoria, and asked what was wrong with Rodney. I replied that he is always like this now. She said that he should get some help as it was not the Rodney who had married her daughter who was now living there.
The situation continued to deteriorate to the point of suicidal tendency, continual drunkenness, chain smoking and fighting. I feared for our marriage and long friendship (I had known Rodney since I was fifteen (15) years old) but continued to persevere in the hope that Rodney would someday regain that happy, carefree and loving nature he had when I first knew him. Even to this day, he has no interest in his sports, hobbies and day to day activities which once were the focal point of his life. He continually talks of there being no future and believes that he is not long for this world.
It was many, many years before I was able to get Rodney to talk about Vietnam and then he was reticent to tell of situations which distressed him to the point of crying uncontrollably. Even the Welcome Home Parade in Sydney and the unveiling of the War Memorial in Canberra have had little effect on him being able to confront the demons he faces as a result of his service in Vietnam. He does not attend Anzac Day services, unit reunions, watch 'war' movies or even confront situations where he will be reminded of his service life." (Exhibit B)

Mr Alan Powell is Mr Powell's brother. He prepared a written report which was tendered at the hearing:

"Rodney has always been a good brother to me & cared for me young & after, but I have seen him change dramatically. When we were kids he was always on the go with his school mates & always doing things. He was popular with everybody and into sports cricket & football & tennis. He was into surf life saving at M'Dove where he would spend all weekends & spare time. He even had a small sailing boat to sail on the Maroochy River.
He joined the army and I didn't see as much of him but he did write to his mother frequently. And when on leave he would be out partying.
He left for Vietnam when I was working in Sydney. After his stint in Vietnam he did show us photos & souvenirs but this was the only time he talked about that war and that is the only time I saw the photos and nothing has been seen or said since, as though it never happened. He is certainly not the same boy he was, now he doesn't care to go anywhere, always serious, stays at home, doesn't want to visit seems to live in his own world & forget the rest." (Exhibit C)

In his oral evidence, Mr Alan Powell said that they lived in the same house before Mr Powell went to Vietnam. He said that Mr Powell would come back to the house on leave and there was no change. He was his usual "go-getter type of guy". After Vietnam he changed. He was a lot quieter. When he came back from Vietnam he was pleased to be home and showed photos of concerts, parades and scenery shots. He had not seen any photographs of Vietnam since then. He only saw Mr Powell for a day after Mr Powell had returned from Vietnam. Mr Alan Powell wanted to say that the men "sent to this stupid war" should have been "looked after" because they "did their utmost". He also said that their father passed away at 89 and their mother at 83. To Mr Alan Powell's knowledge, there was no other family member suffering from any kind of psychiatric disorder.

Mr Powell's medical and psychiatric treatment

Mr Powell first saw Dr Bentley, a psychiatrist in 1973 because he "wanted of find out why [he] was the way [he] was." He said he was turning into a wreck. The next occasion on which he consulted a psychiatrist occurred in Southport in 1978 or 1979. He did so again in the mid 1980s when, Mr Powell said, his marriage was "going down the drain because of [his] attitude" and because he was "always drunk". The doctor put him on tablets, which he used "by the handful". He was found at the beach and taken to hospital. Mr Powell said that he had attempted suicide because he "wanted to take the problems away from [his] family." In approximately 1989, he saw Dr McLauchlin at the Gold Coast. For a month, he saw Dr McLauchlin every second day.

Mr Powell said that he saw Dr Hutchinson in 1996 at the request of the Department of Veterans' Affairs for the preparation of a report. He also saw Dr May and Dr Crompton in 1996. Since December, 1996, Mr Powell has been seeing Mr Creswell, his consulting psychologist, whom he sees approximately every week. Mr Powell has also had specialist psychiatric care from Dr Crompton since September, 1997, and, for the most part, has seen him on a monthly basis. He also has seen Dr May since October, 1996.

In February and March of 1998 Mr Powell said, he completed a programme for veterans suffering from PTSD. The programme was run by its director, Dr Crompton. Dr Crompton said that the program was accredited with the National Centre for war-related PTSD and was funded by the Department of Veterans' Affairs. The programme concentrated on a number of areas including nightmares, sleep difficulties, anxiety, communication problems, sexual dysfunction, depression and anger management. Dr Crompton conducts the program with regard to nightmares, flash backs, anxiety, panic attacks, agoraphobia and depression. That was the fourteenth group of veterans that the program had managed. Dr Crompton said that he has constant contact with veterans and with the Department of Veterans Affairs.

In approximately May, 1999, Mr Powell said, he attempted suicide again. He was taken to the Base Hospital with an overdose and then transferred to the mental hospital before being finally transferred to the Friendlies Hospital.

Mr Powell said that he is currently taking 600mg per day of Serzone and 3 tablets of Neulactil per day. He also takes Zantac, sleeping tablets and "nightmare pills". Dr May prescribes Serzone, Neulactil and Zantac. Dr Crompton prescribes the others. Mr Powell said that he has been on Serzone since 1997, Neulactil since the first time in hospital in late 1998, Zantac for "a good twelve months", sleeping tablets since February, 1998 and the "nightmare pills" for a couple of months.

Mr Powell said that he has taken panadeine forte and also been given courses of physiotherapy and acupuncture as well as working out in a gym to relieve the pain associated with his lumbar spondylosis. None of these treatments has given him relief. He said that he would be attending a pain clinic the following month "as a final resort".

Medical Evidence
Dr Ti

An x-ray was taken of Mr Powell's spine and a report upon that x-ray by Dr Michael Ti stated:

"LUMBAR SPINE:
Alignment is fairly satisfactory. Lumbar disc spaces are still well maintained at all levels. Some marginal lipping is seen and this is present throughout the lumbar spine. No signs of any compression fracture. Increased indentation of the vertebral end plates at L3 and below is due to the expanding disc spaces.
As compared with last examination in August 1996, no significant changes are found." (Exhibit 4)

Dr Parsons

Dr Parsons prepared a written report dated 24 July, 1998. He referred to the sand-bagging in terms consistent with the description given by Powell. It described the event of the sand-bagging:

"Mr Powell states that he had no back symptoms of any sort until 'early' in 1971 probably in March or April. Up to that time he played rugby league and tennis without any problems relating to his back. In approximately February or March 1971, he was re-sandbagging a tent. This involved shifting 30 to 40 bags of sand each weighing he believes 28lb to 30lbs. Towards the end of this process he developed a 'sharp' pain in the bottom of his back while lifting one bag and thought he had 'torn a muscle'. On trying to lift further bags he found that on bending forward to lift he 'couldn't straighten up'. He stopped lifting bags and 'got the men to finish the job'. That day his back continued to be painful and the following day was still 'stiff and sore'. He asked a friend to give him a couple of Aspirins which helped to some extent. On subsequent days he was involved in mainly administrative that is non manual work and did not have to do any bending or lifting and over a week or more his back pain gradually subsided. …" (Exhibit M, pages 1 and 2)

Dr Parsons noted that Mr Powell had not been involved in any heavy physical activity for the rest of the year. After his return to Australia in October, 1971, he noticed a slight low back pain, particularly when he was engaged in prolonged periods of driving. Shortly after that, he found that he was unable to chop wood because of his back pain. Over the ensuing years, he worked as a truck driver and attended the Gold Coast Hospital on three occasions because of his pain. Treatment was not offered because the cause could not be identified. Mr Powell now suffers from an aching pain in his back and that pain is made worse by movement. Sitting and standing for periods greater than 20 minutes causes him to suffer 'burning' down both his thighs. Walking for distances greater than 100-200 metres also has that effect.

Dr Parson's clinical examination of Mr Powell did not reveal any low back discomfort while he was sitting. He had difficulty bending to remove his shoes and trousers but his gait was within normal limits. Mr Powell stood with a slightly increased lumbar lordosis. His lateral flexion was significantly limited particularly to the right but less so to the left. He had only some 15° of extension possible and all of these movements produced mid lumbar pain. Forward flexion brought his fingertips to within 30cm of floor but recovery from the flexed position produced mid lumbar pain. There was no evidence of muscle wasting in his lower limbs.

After reviewing the x-rays, CT scan and MRI of the lumbar spine, Dr Parsons concluded:
"Mr Powell's symptoms clearly from his description commenced with recurrent heavy loading of his lumbar spine while shifting up to 40 28lb sand bags in March or April 1971. At that stage it is probable that he either stressed the L5 spondylosis or more probably produced an annular split involving the L4-5 disc. The symptoms deriving from this event have been intermittent but progressive over the years, culminating, I believe, in his current symptom complex and impairment.
…
I believe his condition is essentially 'lumbar spondylosis' which is service related. It fulfils the criteria of the Statement of Principles concerning Lumbar Spondylosis – Factor 5 (g)." (Exhibit M, page 4)
Dr Parsons gave oral evidence by telephone that Mr Powell's injuries were consistent with factor 5(g) of SoP 27 of 1999 which requires "ligamentous instability preceding clinical onset of lumbar spondylosis." The x-rays show spondylosis which is a defect on the ring of the fifth lumbar vertebra. This occurs in four to five percent of the population. The depressed vertebrae leads to subtle instability. Loading of the spine then leads to pain. He said that Mr Powell's symptoms were probably induced by heavy loading of the spine when he shifted the sand bags in 1970. That incident amounted to trauma to a vulnerable and slightly weak lumbar spine. Dr Parsons was asked whether his opinion would be altered by an x-ray which was taken on 12 July, 1999 and which did not show any spondylosis. He replied that it is often an "incidental finding". It is not uncommon for radiologists not to refer to it.

In cross-examination, Dr Parsons said that he did not have Dr Boys' report when he gave his opinion. He did agree with its ultimate conclusion that Mr Powell suffers from lumbar spondylosis. Dr Parsons disagreed with Dr Boys' opinion that Mr Powell's history would not suggest structural derangement of the spine. The split in the disc is not really in the cartilage. Each vertebra is a block of bone and the disc lives between two blocks, like a wheel on its side. The split is in the disc itself and is not visible on x-ray. It is a split to the soft tissue, which the x-ray does not detect. Magnetic Resonance Imaging (MRI) would probably not pick it up either. It could be detected by a discgram with an injection of dye.

Dr Parsons agreed that the upper part of Mr Powell's spine is "normal" for a man of his age and occupation. Dr Parsons was asked by Mr Dobbie whether the damage in L3-L4 and L4-L5 was caused by a trauma. Dr Parsons said that it was, and that he did not believe that the symptoms experienced could be there without structural derangement. He reached that opinion because Mr Powell's pain lasted for seven days; he undertook only light or semi-sedentary duties; and when Mr Powell was spending long periods sitting while he was driving, he had recurrence of the symptoms.

Dr Parsons said that Mr Powell had a "slightly vulnerable spine" but that his back had never been "normal" since that incident. The trauma had caused Mr Powell's spine to change. Dr Parsons did agree that it is "not at all uncommon" for labourers or truck drivers to suffer from this kind of injury. Dr Parsons said that Mr Powell's pain levels at the time were "incapacitating" because he could not straighten up properly. They were "low levels of symptoms" but were within the range expected. Dr Parsons said that as Mr Powell was moving forty bags of thirty pounds, that kind of repetition does constitute trauma sufficient to amount to a back problem.

In re-examination, Dr Parsons said that truck driving often produces symptoms in a pre-existing problem. In this case, heavy loading prior to truck driving caused the problem. He was asked whether repeated heavy loading from a truck would cause the same damage. Dr Parsons replied, "not to a normal spine". Bad seats and roads could lead to the symptoms becoming apparent. Mr Powell was quite young when he did the sandbagging.

Dr van der Walt

Dr Izak David van der Walt is an orthopaedic surgeon who prepared a written report dated 6 October, 1997. It relevantly stated:
"He told me that he had injured his lower back while in Vietnam. He was re-sand bagging a tent, when he got sudden severe pain in his lower back on lifting.
Examination presented a slightly overweight gentleman who moved about comfortably and confidently when walking.
On standing he had normal spinal posture. On forward flexion his finger tips reached the floor. Coming erect was fluid. He had twenty percent reduction in extension and when this movement was forced complained of back pain.
Latro flexion and rotation was limited by a third expected range of movement. He had no paravertebral muscle spasm, but was tender over the lower three lumbar vertebral processes.
The straight leg raise was normal, and neurologically his lower limbs were normal.
X-rays taken of his lumbar spine recently were reviewed, and these showed moderate arthritic signs over multiple segments. A CT scan showed bulging of the lower three lumbar discs, but with no frank herniation or neural tissue compression.
…
I expressed the opinion to him that I did not believe that a single injury incident during war service could be the cause of his present predicament.
Following this he had some difficulty in extending his back. He did not report this incident of back trouble.
Following this incident of back pain he suffered recurring bouts of severe back pain. After his discharge from the Armed Forces he attended Southport Hospital for treatment. X-rays were taken of his back there, but no abnormality was specifically diagnosed.
Over the years he told me his back pain became worse, and about two years ago he could no longer continue to work as a truck driver because of pain.
…
I believe that Mr. Rodney William Powell has chronic non specific back pain, which is not amenable to surgical treatment. I believe that he is an entrenched low back invalid, and that there is scant chance that he would benefit from any rehabilitative program." (Exhibit 5, pages 1 – 4)

Dr van der Walt also gave telephone evidence at the hearing. He conducted a full physical examination of Mr Powell and had seen x-rays of Mr Powell's spine. He said that driving a truck for twenty years could affect a person's back. The highest incident of back problems in America is in truck drivers. The vibration of the vehicles is the cause. Dr van der Walt said that most of those of similar age and occupational history as Mr Powell do not suffer the severe pain that Mr Powell suffers, and most would not have those changes present.

Dr van der Walt agreed that the injury would not be detected on x-rays because the injury is not to the bony part of the vertebrae. He said that he could not divine the cause of the injury but that if Mr Powell had suffered the injury during the sand-bagging incident, it would probably only have produced changes at one level. As Mr Powell has changes in three levels of his spine, Dr van der Walt did not believe that a single incident was the cause. Dr van der Walt said that he was unable to make an accurate diagnosis. It is difficult to make sure diagnoses in cases of severe pain. That is why he concluded that Mr Powell suffered from "chronic non specific back pain".

In cross-examination, Dr van der Walt said that he had access only to the x-rays at the time he prepared his report. Dr van der Walt confirmed that Mr Powell had volunteered the information to him when he was interviewed. He conceded it was "possible" that Mr Powell had suffered a split of the annulus when he was lifting the forty sand bags but added that he would expect that to occur in only one place in his vertebrae. The multi-level nature of the injury made the hypothesis "unlikely" to his mind. Dr van der Walt said that, if there were a certain degree of movement, it would be possible to make a diagnosis of permanent ligamentous instability absolutely. On the basis of the x-rays, however, such a diagnosis was "presumptive". That is why he concluded that the injury was "non specific". For similar reasons, Dr van der Walt said that he could not make a diagnosis on the basis of Dr Parsons' observations.

In re-examination, Dr van der Walt said that the x-rays showed bulging in three lower discs. This meant that tension was not normal and instability would result. Dr van der Walt illustrated his view by reference to the tyres of a motor vehicle pumped high with no distortion. In that state, the tyres are similar to young discs. As a disc ages, it loses tension. That leads to the ligaments slackening and not properly supporting the discs. In turn that leads to instability. He confirmed that, as Mr Powell's injury is not localised to any one level, it is "much more likely" to be disc damage. He reiterated that the incident mentioned by Mr Powell could "possibly" cause three discs to be damaged, but that was "unlikely".

Dr Boys

In his report dated 5 August, 1999, Dr Boys set out the history he had obtained from Mr Powell in relation to the sandbagging incident. He related the incident in terms consistent with Mr Powell's evidence relating to it. Dr Boys said that Mr Powell did not seek medical advice but self medicated with Aspirin. He said that Mr Powell was able to continue with his normal duties. Mr Powell related to him a history of low back pain and associated muscle stiffness for a period of 5-6 days. Dr Boys' history of Mr Powell's subsequent back pain and restriction of activities is consistent with that given by Dr Parsons.

After finding some restriction of his spinal movements and reviewing the x-rays, CT scan and MRI, Dr boys concluded:
OPINION
It is my opinion that Mr Powell experiences mechanical low back pain secondary to degenerative lumbar disc disease (lumbar spondylosis).
I note the Statement of Principles concerning lumbar spondylosis. I note your questions in this regard. With regard to factor 5 (h) I note Mr Powell's contention that his degenerative spinal condition is related to the sandbagging incident of February of 1971.
This man's history would not suggest structural derangement of the spine (fracture, discal derangement or a significant soft tissue injury resulting in instability) at this point. His history is consistent with a musculo-ligamentous strain of the lower back. It would be my opinion that this was a temporary phenomenon resolving within days of the incident described. I do not believe that this incident gave rise to any permanent effect on spinal functions.
I note your question as to whether this man's spondylosis can be related to service through any other factor in the Statement of Principles. I do not believe that Mr Powell can satisfy any of these principles." (Exhibit 2, pages 3-4)

Dr Boys in giving oral evidence said that Mr Powell had a generalised degenerative condition which was not caused by an isolated injury. Mr Powell is obese, smokes and has experienced transmitted vibrations of the spine from his years as a truck driver. These things led to his degenerative condition. Dr Boys said that it is "possible" that he received a discal injury from the sand bagging, but given the symptoms at the time it is "unlikely" that he did. He was asked if Mr Powell could have suffered an annular split due to the sand bagging. Dr Boys said that would depend on the symptoms. Mr Powell had low back pain for five to six days. Pain which resolves in that period of time is not consistent with an annular split. What could be consistent is the strain from truck driving which could lead to generalised lumbar spondylosis.

In cross-examination, Dr Boys said that Mr Powell did not satisfy factor 5(g) of SoP 27 of 1999 because there was no injury that led to permanent instability. Dr Boys did not agree that lifting the sand bags was sufficient injury to sustain ligamentous instability. It was more likely to be a musculo-ligamentous strain. He said that it was "very uncommon" to injure a lot of discs in a single incident. On the basis of the history of stiffness and pain for five to six days (the period of time that Mr Powell told him he experienced pain for), Dr Boys said that Dr Parsons' diagnosis was "inconsistent" with the history, and he would not adhere to it because there would have had to have been "considerable pain". Dr Parsons was saying protrusion or spasm, but that takes four to six weeks for the discomfort to resolve. Traditional treatment for spasms at that time was two weeks in bed. Mr O'Gorman asked whether that time was for the pain to decrease to a manageable level or to completely go away. Dr Boys said that either would suffice. On the balance of probabilities, the symptoms that Mr Powell described were symptoms of a simple muscular pain.

Mr Creswell

Mark Creswell gave evidence at the hearing. He is a practising psychologist who generally sees Mr Powell on a weekly basis. Mr Creswell has written two reports.

In his first report dated 15 April, 1997, Mr Creswell itemised the "particular issues which relate to the development" of PTSD in Mr Powell's case. He listed these as the death of five men while Mr Powell was on leave; the cache of ammunition incident; sleeping through an alarm warning of an attack and the picnic incident. The assessment by Dr Hutchinson has exacerbated Mr Powell's anger and aggression including dreams when he assaults the psychiatrist. (Exhibit K, page 1)

Mr Creswell said that Mr Powell had slept through warning tones when the compound at Nui-Dat had been under mortar attack. He later had woken up during the actual mortar attack. It is true, he said, that Mr Powell was some distance from the place where the mortars were landing but, he continued, the military experience is such that, when live rounds are falling, no one knows where they are going to land. Mr Creswell agreed that Mr Powell perceived danger.

Mr Creswell said that Mr Powell "experienced the impact" of the death of his five friends when he watched the news on television. He used as an example a golfer's wife watching a televised picture of her husband's plane as it crashed. In that scenario, she "experienced the impact" as she saw it. Mr Creswell said that there might be a difference in impact for some people between watching live events and seeing them on television but, in this age of multi-media, television experience is "real". A further example would be the sight of your spouse killed in a car accident shown on television. It can be just as devastating as being involved in the action. Mr Creswell said that the psychiatrists who said that there was a distinction were "entitled to that view".

Mr Creswell said that experiencing fear when facing weapons was "a normal reaction to an abnormal situation". Mr Creswell said that he was aware that no shots were fired, Mr Powell's unit was ordered to back off and not to escalate the action and that there were weapons aimed directly at "Rod's patrol". Mr Creswell said that automatic weapons are effective up to three kilometres, and "if one is pointed at you, you're in imminent danger". Mr Creswell also said that the only reason people develop PTSD is because of the way they react to threats. "If you perceive danger, it is dangerous". He gave the example of two people in a bank robbery and only one develops PTSD, after they have both experienced the same event.

Mr Creswell said in cross-examination that the officers were not under much threat because "they had helicopters". That is a "typical dust off method" in Vietnam. Only the officers would have got out. Mr Creswell considered from his experience with veterans that the Long-Hai Mountains were enemy territory. This was supported by the American bombings to dislodge a "hot bed" of Viet Cong territory. It was likely therefore that there were enemy in Long-Hai.

Mr Creswell listed Dr Hutchinson's session as one of five experiences that Mr Powell had which might have led to PTSD. Mr Creswell said that Mr Powell had a reaction to that session and that reaction might have manifested itself in certain ways. If the visit brought up memories he had tried to delete from his life then that might exacerbate his PTSD symptoms. The fact that those symptoms were exacerbated led to a suicide attempt and to his subsequent hospitalisation. The session, therefore, was a threat to himself. Mr Creswell asked if one is exposed to something which symbolises an event or causes flashbacks, does it matter whether the person is in Vietnam or merely thinks that he or she is? Mr Creswell said that Part A1 of DSM-IV and the SoP are basically the same.

In a report dated 28 October, 1997, Mr Creswell stated:

"I reiterate here that I have no doubt that Mr Powell was subjected to significant and intense psychological disturbance while in Vietnam and that this has contributed directly and wholly to his development of Post Traumatic Stress Disorder." (Exhibit L)

Dr May

Dr Marsh May, who is the Clinical Director of the Wide Bay Mental Health Service, completed three written reports relating to Mr Powell. He has seen "quite a few" veterans who are suffering from PTSD and other disabilities. In his first written report dated 8 November, 1996 Dr May set out a history consistent with the evidence given by Mr Powell. Dr May concluded that:

"This ex-member suffers from Post Traumatic Stress Disorder combat related. I rate this as severe and complicated by major Dysthymic reactions and perhaps even border (sic) on major depression. I would see these as emanating however from his Post Traumatic Stress Disorder. He has been treated with Aurorix which has reduced his aggression but he remains depressed and at risk. I would rate his incapacity as severe." (Exhibit E, page 3)

At the time of his first report, Dr May had seen Mr Powell on two occasions. Dr May then continued to see Mr Powell every two to three months. He had counselled Mr Powell and prescribed the "judicious use of medication": (Exhibit G, page 1).

Dr May completed a second report dated 5 February, 1997 to elaborate further on some aspects of his earlier report. He stated:

"… It is my contention that the patient does indeed suffer from a combat-related post traumatic stress disorder. To satisfy this diagnosis the person must have been exposed to a traumatic event in which he or she experienced, witnessed, or was confronted with an event or events which involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and that the persons (sic) response involved intense fear helpleness (sic) or horror. There were two such threats to this ex-member. One was when five of his mates were killed in an attack upon an APC whilst Mr Powell was on R & R. This was a threat to others that severely affected him. Indeed he felt never the same after that event feeling sorely for his deceased colleagues. Another such threat was when he took one patrol out in South Vietnam and it discovered caches of amunition (sic). He was told at the time there was no back-up and leave them where they were. He felt at that time particularly that his patrol was under threat. The fact that no back-up was available to him he felt double the threat to his men and he was extremely worried about them being exposed to unnecessary risk and without any hope of military support. It is my contention that these events satisfy the criterion of threat to self or others." (Exhibit F, page 1)

Dr May also commented upon the major dysthymic reactions from which he found Mr Powell suffers. While his PTSD is:

"… severe and complicated by major dysthymic reactions which have resulted in self destructive behaviour. Some of these reactions may in fact have been episodes of major depression but I was not present at the time of treatment of those illnesses to comment upon this. No matter what origins the dysthymia have, they were no doubt related to his post traumatic stress disorder." (Exhibit F, page 2)

Dr May's report dated 8 October, 1997 stated in part:

"As you are aware it is my contention that this man suffers from Post-traumatic Stress Disorder that I believe has been occasioned by involvement in hostile and threatening situations in South Vietnam whilst on active military service. …
Collateral history from his wife Carol has revealed to me that there was a clear change in Mr Powells (sic) personality following the service in Vietnam. He changed from being a happy go lucky placid person to a morose, uncommunicative depressed individual who turned frequently to alcohol and cigarettes." (Exhibit G, page 1)

In his oral evidence, Dr May was asked to comment on the televised news of the death of the five soldiers. He said that Mr Powell felt guilt and sadness that his mates had been killed in action while he was on leave. Dr May said that there is a much higher risk of developing PTSD if a person has "experienced" combat rather than seen it on the television. However, it is not unknown for PTSD to develop from training or from viewing items on the television. In re-examination, Dr May agreed that DSM-IV was applicable. There was a lot of "camaraderie and close bonding" in the active service units. The experience of watching the news item could have been "very traumatic"', particularly because he was going back to Vietnam. Mr Powell's being in Australia would not have lessened the impact on Mr Powell, as a soldier, which would have been "immense".

Dr May was asked whether a person would experience fear when guns were pointed at him or her. He responded that fear was a "universal reaction." Recent research involving combat soldiers has shown changes in heartbeat and, in some cases, intense fear leading to urinating in their uniforms. Indeed, Dr May said that he had "never come across people who do not manifest fear" in such a situation. People who do not manifest fear are thought to represent fewer than two percent of combat soldiers.

In cross-examination, Dr May said that Mr Powell had been deeply concerned by the cache of ammunition incident. This was due to the threat from the enemy in the vicinity and the threat to the rest of the military forces because the cache was left in enemy hands, unchallenged. There was also a threat because there were no back-up forces. Mr Powell was in "immediate danger" and experienced a "sense of stress". Mr Dobbie asked whether the main reaction was annoyance at superiors. Dr May said that there was anxiety and fear for his patrol. Mr Powell was also angry with superiors for not stabilising the area and making it safe. Mr Powell felt more anger than bitterness and resentment, as the latter emotions take some time to "filter in".

Dr May did agree that Mr Powell's reaction was to his perception of fear. Although Mr Powell did not experience "hand to hand fighting" there was a "military risk" in the situation. To Dr May's knowledge, Mr Powell was never fired on but was present during mortar attacks and also drove trucks and went on patrols. The ammunition could have been "booby trapped". Mr Powell's perception of fear in those circumstances would be "fairly accurate". He commented that he "would not like to take a patrol to the cache without back-up".

Dr Crompton

Dr Crompton, who is a consultant psychiatrist, saw Mr Powell in October, 1997. He set out in his written report dated 7 October, 1997 Mr Powell's history. That history is consistent with the history Mr Powell has given in his evidence. Dr Crompton concluded that:

"In summary I would perceive Mr. Powell is suffering from chronic post traumatic stress disorder. He evidences the co-morbid disorders of dysthymia, social anxiety and alcohol abuse. His problems have also impacted upon his relations.
In terms of management I have arranged for him to be seen on a number of occasions, I would recommend he continue to see the Vietnam Veterans Counselling Service and that it may be helpful for his dose of Serzone to be increased. It is important that he continue to work on management of his alcohol and that while he continues to drink he should be taking a minimum of 200 mgs of Vitamin B1 per day. It may be helpful for him to participate in a Day Therapy Program for the management of his PTSD but I will need to discuss this with him a little further. I would agree with Dr. Marsh May that this man has problems in a variety of areas and that his difficulties fall in the significant range. Like Dr. May I would perceive at times he borders on having episodes of major depression." (Exhibit I, page 3)

Dr Crompton referred to a number of incidents in his report dated 1 December, 1998. He outlined the pilot's "practical joke" on the first day in Vietnam, the mortar attacks at the compound, purchasing fresh food, the Long Hai "luncheon" and the cache of ammunition incident in terms consistent with those used by Mr Powell. Dr Crompton then expressed the view:

"I would believe these situations would fulfil the criteria as outlined in both the Statement of Principles and the DSM-IV in that he felt his life was under threat and that he witnessed situations which were traumatic to him and induced a sense of horror and fear". (Exhibit J, page 3)

Dr Crompton dealt with each of these incidents. Taking his arrival at Nui-Dat, it was Mr Powell's belief or perception that he was under threat. He subsequently learnt that the pilot's comments were a way of "introducing soldiers to warfare" but Mr Powell had reacted as if he were under fire. Dr Crompton's report of 1 December, 1998 stated:
"The problems which he encountered in Vietnam started almost from the first day. He reported that during the flight into the area where they were to be based, the pilot on the way in to land advised the soldiers on board they were under enemy attack and circled away to avoid the attack. He reported becoming frightened at this experience, perceiving his life was under threat. Subsequently he learnt that this was that pilot's way of introducing new soldiers into the rigours of warfare, in other words it was a practical joke, although in other ways it would be described as a form of bastardisation. He did not learn that in fact they were never under fire until some 6 months after being in Vietnam." (Exhibit J, page 2)

With respect to collecting supplies at Vung-Tau, Dr Crompton said that Mr Powell had a perception that if he went down dark alleys, which he had to do to collect fresh supplies as part of his job, he could have been killed. No traumatic event actually occurred, but because he knew that it did happen, he perceived this activity as a threat to his personal integrity.

Dr Crompton's reports also noted that Mr Powell had been:

"placed in situations where there were threats that he would come under fire. He described feeling anxious during these periods and often felt frightened. … While in Vietnam he came under mortar fire when the mortars landed in the compound." (Exhibit I, page 2)
"Mr Powell described even while in the compound he felt a sense of insecurity. He wondered what might come into the compound and indicated he used to be 'shit scared during mortar attacks'. He indicated mortar attacks occurred at least on 6 occasions that he can recall." (Exhibit J, page 2)

Dr Crompton said that Mr Powell experienced shame and guilt for not being there with the men who were killed. Dr Crompton said that Mr Powell experienced a stressor when he learnt about the death of close associates, in accordance with DSM-IV.

Dr Crompton said that to experience fear when enemy rifles are aimed at a person is "not an unexpected reaction." Dr Crompton said that Mr Powell feels considerable guilt about the cache of ammunition incident because he did not take any action. He said that Mr Powell found the cache and was aware that there were enemy present and he could see their gun barrels. Dr Crompton said that the stressor was finding the ammunition with the enemy present while the guilt was a response to not taking any action. The life threat in that situation was the potential of being shot at, it was Mr Powell's perception of what might happen. Dr Crompton also referred to this incident in his written report where he stated:

"In relation to the issue of exposure, he has focused on an event for which he feels considerable guilt, ie. the discovery of a cache of ammunition and of not engaging with the enemy he saw at that time." (Exhibit J, page 2)

Dr Crompton disagreed with the opinions expressed by Dr Hutchinson. In his view, Mr Powell meets the criteria set out in DSM-IV for the diagnosis of PTSD. Dr Crompton said that he has had the advantage of seeing Mr Powell over a long period of time and has been able to gather information from Mrs Powell and from the psychiatrist in Bundaberg who had treated Mr Powell earlier. Dr Crompton acknowledged that Mr Powell had reported new events from time to time but said that he did so as he remembered them. Overall, he felt that Mr Powell's history has been consistent with the history he gave Dr May and Mark Creswell. The diagnosis of PTSD is also confirmed by the psychiatrist who assessed him for suitability for participation in the Veterans' PTSD program.

In cross examination, Dr Crompton said that veterans with PTSD are not always totally consistent in giving their history. It is a process of re-construction. Often there are veterans in the same treatment group who participated in the same event who see things differently as some participated from the ground and some from the air. Each blames themselves. Memory is not an accurate process. The effect on the credibility is that if the stories are always inaccurate, or they "chop and change" then one must question the credibility. Minor expansions are acceptable. DSM-IV recognises that acute stress reactions can sometimes lead to "new memories".

Dr Crompton was also asked if there was "a big difference" between experiencing an event and watching the retelling of it on television. Dr Crompton said that there could be a distinction between hearing it and witnessing it. The war-zone is a "priming process". A veteran can experience a number of stressors and then one "breaks it" for them. Guilt and shame are common emotions. An example is that veterans do not manifest acute symptoms at the time of the stressor but it can still act as a stressor.

Dr Crompton also commented on Mr Powell's suicide attempts. He said that they were not entirely attributable to PTSD, but Mr Powell's ability to cope is decreased. When things go awry he looks for "a way out".

Dr Crompton also said that Mr Powell saw some dead bodies while travelling to Vung Tau. While there was no immediate threat to his personal integrity, Mr Powell thought "could this be me?" and that satisfied DSM-IV as it was a threat to himself or others. Seeing the mutilated bodies amounted to a stressor.

Dr Hutchinson

Mr Powell said that he saw Dr Hutchinson once in 1996 at the request of the Department of Veterans' Affairs. He said that the appointment lasted for 40 to 45 minutes and that, when he first entered the room for the session, Dr Hutchinson asked him, "did you kill anybody?". It was Mr Powell's view that, as soon as he replied "no", Dr Hutchinson had made up his mind that he was not suffering from PTSD. He said that he thought the interview was "absolutely disgusting". In cross-examination, Mr Powell said that he did not agree with the way that Dr Hutchinson conducted the session. He said that he would not see Dr Hutchinson again, because he "would not be accountable for what he would do."

In his report dated 24 June, 1996, Dr Hutchinson described Mr Powell's experiences in Vietnam. He noted that Mr Powell was a supervisor of Army messes and did not see any action. While Mr Powell went on some patrols, he did not have any contact with the enemy. Dr Hutchinson mentioned Mr Powell's coming across the cache of ammunition but said that his patrol had been told to leave it and there was no shooting involved. Mr Powell had also been upset when men he knew had been killed in Vietnam while he was on leave.

Dr Hutchinson said that Mr Powell had repeated several times how things had changed since he left Vietnam. He woke up every night in a sweat and suffered nightmares but could not remember what they were about. Mr Powell told him that he was unable to socialise and just wanted to sit in the house and avoid people. He recalled being attacked on his return from Vietnam. Every week, he felt depressed for two to seven days. In 1973 and 1985, he attempted suicide and often thought about suicide.

Dr Hutchinson concluded:

CLINICAL PRESENTATION – He presents as a plump, greying man with frontal baldness, glasses, casually dressed. He was rather garrulous and tended to talk about his problems in superlatives and I felt that he exaggerated the difficulties. All his difficulties, he claimed, started in Vietnam. Before that he said he was a remarkably fit man and always happy and full of jokes.
Despite the complaints about his back, he sat and stood without any problems, walked quite fluidly with no apparent difficulties in his back. He then remembered that he gets a rash occasionally. I did not find at interview that he was suffering from any psychiatric disorder.
OPINION – I found no evidence that this man was suffering from Post Traumatic Stress Disorder. He complains of a lumbar spondylosis but from his description of what the x-rays showed, it is difficult to accept this and he certainly did not seem to have any great problems with his back at interview." (T documents, page 32)

In his report of 1 June, 1999, Dr Hutchinson reported that he had read the reports of Mr Cresswell, Dr May and Dr Crompton and the statements of Mr and Mrs Powell. He had "… also spent several hours considering the case". Dr Hutchinson then reported:

The first conclusion that comes to mind is that Mr Powell was a very reluctant soldier and despite the fact that he enlisted in the Army, it was quite apparent that if there was a war going on, he didn't want to be there. Apparently nearly everything that he experienced in Vietnam, he found frightening, even going down dark alleys. He did not like taking orders from officers and according to him, he was shocked to find that the enemy might actually point their weapons in his direction. It seems a sad reflection on the Australian military.
The fact remains that he was never a front line trooper. He was part of the Army backup and he worked as a driver. He never came under fire, he was never under any immediate threat of death of injury and he never even came close to suffering any injury himself." (Exhibit 3, page 1)

Dr Hutchinson does not accept that Mr Powell suffered any intense fear, helplessness or horror when he heard of his friends' deaths in Vietnam. There is a big difference, he said, between reading reports in newspapers or seeing reports on television about such matters and being in the danger zone when such injuries are immediate and frightening. Dr Hutchinson concluded:

"Quite a bit has been made of Mr Powell's difference between him before the war and after the war. For example, it was stated how he was very fit and the life and soul of the party before the war and afterwards, a different person. The history of the change of being a fit and happy person before Vietnam and of being a different man after his experience in Vietnam is pure hearsay. Before the war he was largely under the control of his parents and he was also of an age when people start to drink and he did drink excessively, although there is no reason, apart from opportunity to drink, as to why he should drink heavily. There is no reason to suspect that his experiences in Vietnam led him to drink excessively. Nor, as he became a driver for most of the period apparently between 1972 and 1989, that he was a hopeless drinker, as that does not fit in with a career of driving. When he gave up his career of driving last year, the reason had nothing to do with his experiences in Vietnam. According to Mr Powell, it was due to a bad back.
Despite stories of attempted suicide, Mr Powell has never really required any psychiatric input or a continued treatment for any psychiatric disability that might have been brought on by his service in Vietnam. He complains of being depressed at times, but only part time and his wife can apparently get him out of this mood. He has never required any medication. Not only that, but I have never met a genuine case of Post Traumatic Stress Disorder who can even stand to watch a Vietnam war film. I think on the balance of probabilities, that this man is trying to earn himself a comfortable retirement, but I do not think that the diagnosis of Post Traumatic Stress Disorder is at all tenable." (Exhibit 3, page 2)

Mr Powell took exception to Dr Hutchinson's comment that he had been a "reluctant soldier". He said that he knew that anything could happen when he went to Vietnam, but did everything he was told to do and was discharged with a clear record. To Mr Powell, "reluctant" equals "coward". He said that he was not a coward and that he did not say to Dr Hutchinson that he did not want to be there. He accepted that he was required to go to Vietnam and was not reluctant to go. In 1962 he had joined the army as a volunteer.

Dr Hutchinson reported that Mr Powell found everything frightening. Mr Powell said that it was a frightening experience, and you did not know when your time was up. He said that he had not told Dr Hutchinson that he worked as a driver and was only "back up" in Vietnam. He also said that he had not told Dr Hutchinson that he had never come under fire, as he had been present during a mortar attack.

Dr Hutchinson gave telephone evidence at the hearing and was subjected to lengthy cross examination. He remained firm in his view that Mr Powell had not suffered any injury in Vietnam.

LEGISLATIVE FRAMEWORK

Pursuant to ss. 13(1) of the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if the veteran has become incapacitated from a war-caused injury or a war-caused disease. The amount of that pension and the terms under which it is payable are determined by the VE Act.

A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in s. 9. In so far as this case is concerned, paragraphs 9(1)(a) and (b) are relevant. An injury suffered or a disease contracted by a veteran shall be taken to have been war-caused if:
"(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;"

As Mr Powell contends that both lumbar spondylosis and PTSD are a war-caused injury and disease respectively, the issue is whether each condition either "resulted from an occurrence that happened while the veteran was rendering operational service" or "arose out of, or was attributable to, any eligible war service" rendered by Mr Powell.

The expression "eligible war service" is defined in s. of the VE Act. For the purposes of this case, it is sufficient to note that paragraph 7(1)(a) provides that a person who has rendered operational service is taken to have rendered eligible war service while he or she was rendering operational service. There is no question in this case that, as a member of Australia's Defence Force, Mr Powell rendered operational service, and so eligible war service, while he rendered continuous full-time service outside Australia during World War II. That is the effect of s. 6A of the VE Act.

In deciding whether an injury or disease resulted from an occurrence that happened while he was rendering operational service or arose out of, or was attributable to, the eligible war service he had rendered, we must have regard to s. 120 of the VE Act. Ss. 120(1) provides:

"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."

Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:

"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."

Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:

"For the purposes of subsection 120(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 196B(2) ...;
(b)...
that upholds the hypothesis." (ss. 120A(3))

Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a Statement of Principle ("SoP") under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.

The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:

"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." (ss. 196B(2))

Ss. 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, paragraphs 196B(14)(a) and (b) are relevant. They provide that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to that service;"

"Sound medical evidence" has the meaning given in s. 5AB(2) (s. 5AB(1)):

"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

(a)the information:

(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."

The manner in which the provisions of s. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:

"The position may be summarised as follows:
(1)First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.

(2)If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied The claim will succeed unless:

(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 215)

In relation to the first step, their Honours had earlier said:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)

The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio, (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission 1992 CLR 408 and Byrnes v Repatriation Commission, his Honour concluded:

"Therefore when s196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)since (1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)

In its judgement on appeal, the Full Court of the Federal Court summarised the course which must be followed in a cases involving a SoP. It said:

"… we would restate the course which the Tribunal is to take in a case, such as the present, (ie 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 a 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." (pages 159-160)

The Statements of Principle

Since the Commission made its decision, the SoPs for both lumbar spondylosis and PTSD have been varied. There has been some question in the past as to the SoP that should be followed in such cases. The question was raised in Repatriation Commission v McLean (1998) 50 ALD 149 but Davies J, who noted that there was conflicting authority, declined to answer it (page 155). The then President of the Tribunal, Mathews J, considered SoPs in Re Ogston and Repatriation Commission (1998) 27 AAR 176. Her Honour decided that a SoP must be applied even though it did not come into force until after Mrs Ogston had lodged her claim. An appeal against that decision was dismissed (Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998). In late November, 1999, the High Court refused an application for special leave from that decision.

The Full Court of the Federal Court has recently decided that the correct SoP to be applied is the SoP which was used by the Repatriation Commission at first instance when it considered the application for pension. In Repatriation Commission v Keeley (unreported, [2000] FCR 532, 28 April, 2000), Lee, Cooper and Kiefel JJ concluded that the common law rule against retrospectivity and embodied in s.50 of the Acts Interpretation Act 1901 ("AIA") applied to the SoPs issued by the RMA under the VE Act. This is because the SoPs substantively affect the way in which a claim for pension is decided. SoPs are not procedural or merely relating to the way in which evidence is adduced or interpreted. There was no contrary intention in the VE Act to override the application of the common law rule or s.50 of the AIA. Lee and Cooper JJ concluded:
"With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision hade been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood. (see: Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440-441)." (paragraph 46)

Kiefel J came to the same conclusion by adopting different reasons. Her Honour asked whether a right had accrued prior to the repeal or amendment of the first SoP. The SoPs are akin to a bar or threshold which "operates on the right to a pension itself because the Statements of Principles determine the connexion between the death and service as a minimum, in each case." (paragraph 76) . Therefore, the SoPs are determinative of rights, and as there was no contrary intention disclosed in the VE Act, the application was to be determined in accordance with the SoP which the Repatriation Commission had applied at first instance.

Lumbar Spondylosis

The SoP in effect at the time of the Commission's original decision was SoP 165 of 1996 ("SoP 165"). The definition of lumbar spondylosis in SoP 165 reads:
"For the purposes of this Statement of Principles, 'lumbar spondylosis' means degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-CM code 721.3, 721.42 or 722.52."

Among the factors listed in SoP 165 as those which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person's relevant service is the person's:

"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;" (paragraph 5(g))

"[T]rauma to the lumbar spine" is defined as:

"an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;" (paragraph 7)

Post Traumatic Stress Disorder

The SoP in effect at the time of the respondent's decision was SoP 15 of 1994 ("SoP 15"). The expression "post traumatic stress disorder" means:
"... a psychiatric condition meeting the following description (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 (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." (paragraph 4)

SoP 15 sets out the factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a veteran's service, including:
" ... 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 that service are:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; ..."

For the purposes of SoP 15, "experiencing a stressor" means the following:
"(derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;"

CONSIDERATION

Lumbar spondylosis

The first issue to consider is whether Mr Powell suffers from lumbar spondylosis. On the basis of the evidence of Dr Parsons and Dr Boys, I am satisfied that he does. That brings me to the hypotheses which have been put forward in the course of this case. Although the first was abandoned by Mr O'Gorman, I will deal with it for the sake of completeness. That hypothesis is based on paragraph 5(g) of SoP 165. It is that Mr Powell suffered an injury to his lumbar spine while he was sandbagging his tent in Vietnam, that he immediately sustained acute symptoms and signs of pain, tenderness and altered mobility and that those acute symptoms persisted for a week after the injury.

Mr Powell's own evidence points to his having moved a considerable number of sandbags around his tent. His evidence also points to his suffering severe and intense pain when he had nearly completed the job and to his being unable to straighten up. It does not, however, point to his suffering from "acute symptoms" as required by paragraph 5(g) of SoP 165. The word "acute", when used in a medical context, means "… brief and severe, as disease (opposed to chronic)…" (The Macquarie Dictionary, 2nd edition, 1991) or "… Of a disease, symptoms of a disease: of short duration (usu. severe). CP. CHRONIC a. …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993). The meaning of the expression "acute symptoms" has been considered by the Tribunal in the context of SoPs relating to rotator cuff syndrome and osteoarthritis. It did so in Re Ablett and Repatriation Commission (1997) 47 ALD 796 when Senior Member Handley considered three cases in the Federal Court in which the expression "acute care" were considered: Murray v Griffin (1990) 92 ALR 86, Jackson v Secretary, Department of Health (1987) 75 ALR 561, Medical Benefits Fund of Australia Ltd v Pullinger (1990) 95 ALR 463. Senior Member Handley concluded that "'Acute symptoms' for the purposes of this part of the SoP must mean symptoms which were acute and the word 'acute' therefore qualifies or describes the symptoms." (page 799) Having regard to these authorities, the ordinary meaning of the word "acute" in a medical context and the context in which the word is used in SoP 165 and SoP 27, I have concluded that "acute symptoms" must be those which are severe although, in order to distinguish them from chronic symptoms, of short duration.

Mr Powell's own evidence points to his suffering from a "niggling pain" and to his suffering "a little pain" and to its coming and going over the following week but not to his suffering pain of the severity sufficient to enable it to be described as "acute". Although his evidence does point to his having to walk in a restricted manner, the absence of evidence pointing to his suffering from acute pain in the week following his sandbagging the tent it does not point to his having sustained acute symptoms of pain, tenderness and altered mobility or range of movement for a period of at least one week after the sandbagging incident. Therefore, it does not point to his having suffered a trauma within the meaning of SoP 165. That means that the hypothesis put forward to relate his lumbar spondylosis to the circumstances of his service is inconsistent with paragraph 5(g) of SoP 165. That means that the hypothesis is not reasonable.

The second hypothesis I have considered is that he suffered from permanent ligamentous instability of his lumbar spine before the clinical onset of his lumbar spondylosis and that his permanent ligamentous instability resulted from Mr Powell's rendering operational service or arose out of, or was attributable to, that service. This hypothesis is not consistent with SoP 165 for paragraph 5(f) required that a person has suffered "… a trauma to his or her lumbar spine resulting in permanent ligamentous instability before the clinical onset of lumbar spondylosis". For the reasons I have given, the material does not point to Mr Powell's having suffered such a trauma.

Unlike the situation in Keeley's case, the SoP which has replaced SoP 165 and which is now in force, might be thought to be more beneficial. Although Keeley would seem to make it clear that SoP 165 is the appropriate SoP to apply, I have considered SoP 27 of 1999 ("SoP 27"). Mr O'Gorman relied upon paragraph 5(g) of SoP 27 which requires that a person was "suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis". "Permanent ligamentous instability" is defined in SoP 27 as:
"continuing or recurring abnormal mobility and instability of the lumbar spine which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine;" (paragraph 8)

The medical evidence of Dr Parsons points to Mr Powell's suffering from instability of his lumbar spine and bases his view on the x-ray evidence of a defect on the ring of the fifth lumbar vertebra. His evidence also points to Mr Powell's suffering a trauma to his spine. The evidence of Dr van der Walt and Dr Boys is contrary to Dr Parson's evidence but it is not appropriate to consider whose evidence is to be preferred at this stage. What is appropriate to consider is whether the material points to Mr Powell's having suffered regular recurrence of episodes of pain and/or tenderness affecting his lumbar spine. Mr Powell's own evidence points to his having suffered such pain and/or tenderness after his return from Vietnam.

It follows that the hypothesis is consistent with paragraph 5(g) of SoP 27 but that is not a sufficient basis upon which to find that the hypothesis is reasonable. The material must also point to Mr Powell's permanent ligamentous instability of his lumbar spine having resulted from his rendering operational service or having arisen out of, or being attributable to, that service. Again there is material in the evidence of Dr Parsons pointing to Mr Powell's symptoms of recurrent episodes of pain having resulted from his having moved the sandbags around his tent in Vietnam. His evidence also points to Mr Powell's continuing or recurring abnormal mobility and instability of his lumbar spine having resulted from or having arisen out of, or being attributable to, his operational service.

The hypothesis is not contrary to proved or known scientific facts and it is not obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous. As it is not inconsistent with paragraph 5(g) of SoP 27, I find that it is a reasonable hypothesis.

Based on the evidence of all of the medical practitioner, however, I am satisfied that Mr Powell's lumbar spondylosis is present at multiple levels throughout his spine. The instability to which Dr Parsons has referred is present at only one level; the L5 level. Dr van der Walt expressed the view that it was possible, but unlikely, that the one incident of sandbagging would have damaged three discs. Dr Boys expressed the view that it was very uncommon to injure a lot of discs in a single incident. This medical evidence must be considered in light of the severity of the symptoms suffered after he had sandbagged the tent. They were minor symptoms which were short lived and which caused him only some "niggling pain". It is also relevant to consider Mr Powell's subsequent employment as a truck driver. Dr Boys said that, among other factors, vibrations as a truck driver led to Mr Powell's suffering lumbar spondylosis. Dr Parsons also acknowledged that repeated loading of a heavy truck could cause some damage if a person's spine were not normal. Mr Powell did such work. Taking all of the evidence into account, I am satisfied beyond reasonable doubt that Mr Powell did not suffer multiple disc damage or mechanical derangement at any level of his spine as a result of the sandbagging incident. Consequently, I am satisfied beyond reasonable doubt that he did not suffer from any abnormal mobility and instability as a result of that incident.

It follows that I have concluded that Mr Powell's lumbar spondylosis is not war-caused within the meaning of the Act. That is so regardless of whether SoP 165 or SoP 27 is the appropriate SoP to apply. Consequently the decision of the Commission dated 31 July, 1996 is affirmed in that regard.

Post traumatic stress disorder

Much of the evidence in this case was given on the basis of the diagnostic criteria in the fourth edition of the American Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"). This is not appropriate for, in considering whether an hypothesis is reasonable, I am required to consider whether it is not inconsistent with the relevant SoP. I am not required, and nor is it appropriate, to ignore the SoP and consider whether it is not inconsistent with DSM-IV.

As to whether Mr Powell suffers from PTSD, only Dr Hutchinson expressed the opinion that he does not. Dr Crompton, Dr May and Mr Cresswell expressed the opinion that he does. Dr May and Mr Cresswell are both engaged in Mr Powell's ongoing treatment. As has Dr Hutchinson, Dr Crompton has seen Mr Powell on only one occasion. In the circumstances of this case (and putting aside the particular circumstances which arose in Slattery and Repatriation Commission (1998), 52 ALD 90, S A Forgie (Deputy President, Brigadier IRW, Brumfield, Mr I R Way (Members), the question whether or not Mr Powell suffers from PTSD depends upon whether or not he comes within the psychiatric condition as defined in either SoP 15 or SoP 3. For the reasons that were given in Cowie and Repatriation Commission (unreported, [1999] AATA 334, 19 May 1999, S A Forgie (Deputy President) Brigadier I R W Brumfield and Dr J B Morley (Members)), that question must be determined on the balance of probabilities.

If Mr Powell is to be found to suffer PTSD for the purposes of either SoP, I must be satisfied that he meets the description of the condition by meeting each of the five criteria specified in those SoPs. In considering this, I have had regard to the evidence given by Mr Powell and that given by the medical practitioners whom he has seen over the years. I am satisfied that the evidence he gave at the hearing is broadly consistent with the histories he gave the medical practitioners and that the histories he gave are consistent with each other. I am also satisfied that Mr Powell is a witness of truth.

The first criteria that he must meet is that he was exposed to a traumatic event meeting criteria (a). Mr Powell put forward several events but I am satisfied that only one can be described as an event that "involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and one in which Mr Powell's "response involved intense fear, helplessness, or horror". That is the event in which he led a patrol for the first and last time and faced, over a cache of ammunition, six Viet Cong who pointed their guns at him and his patrol. That is an event in which, when viewed objectively, there was a threat to his physical integrity and that of others if not a situation in which he was confronted with threatened death or serious injury. It matters not that he and his patrol were subsequently able to withdraw from the situation and were unharmed. As I am satisfied that Mr Powell's response was one of intense fear during the confrontation, I am also satisfied that the traumatic event as defined in the SoPs occurred.

I am not satisfied that the other events recounted by Mr Powell meet criteria (a). While I accept that Mr Powell was fearful on other occasions (such as the picnic on the beach and when collecting vegetables), there is no evidence that, when viewed objectively, he was confronted with an event that involved any threat to his personal integrity. He perceived such a threat but criteria (a) requires that, on an objective basis, there be such a threat. I have reached the same conclusion in relation to the mortar incident. Without further evidence, I am not satisfied that Mr Powell was in a position in which his physical integrity was threatened.

On the basis of Mr Powell's evidence, I accept that he suffers recurrent and distressing dreams about the patrol and has done so for many years. Other nightmares about Vietnam also intrude upon his dreams but criteria (b) does not require that a person dream about one event only provided the dreams about the event are recurrent and distressing.

In relation to criteria (c), I am satisfied that Mr Powell has suffered a markedly diminished interest or participation in any activities in his life (significant or otherwise), a feeling of detachment or estrangement from his family and friends and a restricted range of affect. Since returning from Vietnam, I find that Mr Powell has conscientiously sought a solitary lifestyle by choosing driving jobs where he had limited contact with people. He has detached himself from his family and his daily activities over the ensuing years. I have made these findings on the basis of Mr Powell's evidence which is supported by that of his wife and brother.

In relation to criteria (d), I find that, since his return from Vietnam, Mr Powell has suffered difficulty in staying asleep. He is awoken by his nightmares. He has also suffered outbursts of anger. Again these findings are based upon Mr Powell's evidence supported as it is by that of his wife and brother and consistent as it is with the histories given to his medical practitioners. On the basis of the evidence of Dr Crompton, I find that Mr Powell also suffers from poor concentration and an exaggerated startle response.

The final criteria is found in paragraph (f). Having regard to all of the evidence, I am satisfied that Mr Powell satisfies this criteria also. He has withdrawn from his family life as well as from social life generally so that he does not function as part of either his family or the community. That finding is supported by his evidence and that of Mrs Powell. I am satisfied that his PTSD has meant that he is unable to carry on work as a truck driver provided that it brings him into only occasional and limited contact with other people. Criteria (f) does not require that Mr Powell be impaired in all aspects of his life but only in important areas of his functioning. His family and social lives are important areas of functioning and he has suffered clinically significant distress or impairment in those areas.

It follows that I am satisfied that Mr Powell suffers, on the balance of probabilities, from PTSD. The next issue is whether there is a reasonable hypothesis linking his PTSD with the circumstances of his service as required by the Act. The hypothesis put forward on behalf of Mr Powell is that the events he experienced in Vietnam and outlined in his evidence, led to his developing PTSD. Given the basis on which I have found that he is suffering from PTSD, there is material pointing to the hypothesis. It is not contrary to any proved or known scientific fact and is not obviously fanciful and is not too remote or too tenuous.

Is it consistent with SoP 15? That depends upon whether Mr Powell suffered "a stressor" within the meaning of SoP 15. Having regard to Mr Powell's evidence, there is material pointing to the event with which he was confronted while he was on patrol as involving a threat to his personal integrity and that of his colleagues. It points to Mr Powell and his colleagues facing drawn guns of six Viet Cong. I consider that the material points to the event's having involved a threat to their personal integrity when considered on an objective basis. I also accept that it was Mr Powell's perception of the situation that he and his colleagues faced a threat to their personal integrity.

It follows that the hypothesis is not only consistent with the SoP but is reasonable. As I am not satisfied that any of the facts necessary to support it has been disproved beyond reasonable doubt and as the truth of a fact inconsistent with the hypothesis has not been proved beyond reasonable doubt, I find that Mr Powell's PTSD is war-caused within the meaning of the Act.

For the reasons I have given, I:

1.set aside that part of the decision of the Repatriation Commission dated 31 July, 1996 as affirmed by a decision of the Veterans' Review Board dated 29 April, 1997 in so far as it determines that the applicant's post traumatic stress disorder is not war-caused within the meaning of the Veterans' Entitlements Act 1986; and

2.substitute for that part of the decision a decision that the applicant's post traumatic stress disorder is war-caused within the meaning of the Veterans' Entitlements Act 1986; and

3. adjourn consideration of assessment to a later date; and
4. otherwise affirm the decision under review.

I certify that the one hundred and fifty one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: .....................................…
M Martinez Associate

Dates of Hearing  3, 4, 5 November, 1999
Date of Decision       19 May, 2000
Counsel for the Applicant                  Mr D O'Gorman
Solicitor for the Applicant                Gilshenan & Luton
Advocate for the Respondent           Mr J Dobbie

[2000] AATA 385

19 May 2000