Richardson and Repatriation Commission
[2004] AATA 1184
•10 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1092
VETERANS' APPEALS DIVISION ) Re IAN RICHARDSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member McCabe Date10 November 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review. The applicant’s conditions of PTSD, depressive disorder and alcohol abuse or dependence are war-caused. He is entitled to pension at the special rate pursuant to s 24 Veterans’ Entitlements Act 1986 on and from 8 July 1997. ..................[Sgd]..........................
Senior Member B J McCabe
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions and benefits – veteran claims PTSD and alcohol abuse are war-caused – whether hypothesis exists – whether raised facts are consistent with Statements of Principles – whether respondent can disprove a necessary raised fact beyond a reasonable doubt – decision set aside
Veterans’ Entitlements Act 1988
Repatriation Commission v Delidio (1998) 83 FCR 82
Byrnes v Repatriation Commission [1993] HCA 51
Bull v Repatriation Commission [2001] FCA 1832
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
10 November 2004 Senior Member McCabe 1. This matter was originally heard by a three-member Tribunal in Re Richardson and Repatriation Commission [2001] AATA 578. Then the Tribunal’s order was as follows:
(a) Affirms that part of the decision of the Repatriation Commission ("the Respondent") dated 27 November 1996 that determined that the condition of Asthma suffered by Ian Richardson ("the Applicant") is not war-caused; and
(b) Varies that part of the decision of the Respondent dated 27 November 1996 that assessed pension payable to the Applicant at 50 percent of the General Rate by adding the words "and at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 8 July 1997; and
(c) Sets aside the decision of the Veterans' Review Board dated 21 July 1999 and substitutes therefor its decision that the decision of the Respondent dated 5 February 1999 made pursuant to s31(6) of the Veterans’ Entitlements Act 1986 is ultra vires.
2. The Repatriation Commission appealed this decision to the Federal Court. Dowsett J upheld the appeal and decided to remit the matter to the Tribunal: Repatriation Commission v Richardson [2001] FCA 1626. Dowsett J ordered:
I set aside those parts of the decision of the Administrative Appeals Tribunal (Veterans’ Appeals Division) dated 22 June 2001 which:
* varied the decision of the Repatriation Commission dated 27 November 1996 assessing the pension payable to the applicant at 50 per cent of the General Rate by adding the words “and at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 8 July 1997; and
* set aside the decision of the Veterans’ Review Board dated 21 July 1999 and substituted therefore its decision that the decision of the Repatriation Commission dated 5 February 1999 made pursuant to s 31(6) of the Veterans’ Entitlements Act 1986 was ultra vires.
3. The complex background to this claim can be found in the Federal Court decision at par 2-4.
4. The matter was reheard on 23 July 2004, in Cairns. The applicant was represented by Mr Clutterbuck of counsel. The respondent was represented by Ms Ford of counsel. Fifteen documents were tendered in evidence before the Tribunal. They were:
• The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 (the T-documents);
• A photograph of a landing craft;
• A statement of Dr Brian Day (the applicant’s former advocate) dated 2 May 2000;
• A supplementary statement of Dr Brian Day dated 5 May 2004;
• A statement of Dennis Wynne (a former crewmate of the applicant) dated 26 November 1997;
• A statement of Ted James (a former crewmate of the applicant) dated 3 October 2002;
• A map of Qui Nhon;
• A statement of the applicant dated 22 June 2004;
• A report of Dr Wilfred Richards (psychiatrist) dated 7 December 1999;
• A copy of the Chief Officer’s Logbook for the relevant period;
• An extract from the book “Letters from a Vietnam hospital”
• A statement of Anthony Harris (Gunnery Sergeant at the relevant time) dated 31 May 2004;
• A map of eastern Vietnam centring on the Qui Nhon area;
• A map of Vietnam “Depicting ports visited by Army Small Ships in the period 1966 to 1971”;• An extract from the transcript of the previous AAT hearing containing a segment of the Mr Wynne’s cross-examination.
5. The applicant gave oral evidence. So did Mr Brian Day, Mr Ted James, Mr Dennis Wynne, and Mr Anthony Harris.
6. The applicant’s case is that an incident he experienced while on operational service caused his current conditions. He says they are post traumatic stress disorder (PTSD), depressive disorder, and alcohol abuse.
7. The respondent concedes that if the incident occurred as related by the applicant, it would be sufficient to give rise to liability for all three conditions under the Veterans’ Entitlements Act 1988. However the respondent contends that the incident did not occur as described by the applicant so the veteran’s conditions (if they exist) are not war-caused within the meaning of s 9 Veterans’ Entitlement Act 1988.
The Factual Background
8. The applicant rendered operational service in Vietnam from 29 January 1968 to 11 March 1968. He was conscripted into the Army at age 20. He was posted to Clive Steele, a small ocean-going vessel and “used as a seaman” (exhibit 8). The Clive Steele was an Army vessel, not a Navy vessel. He had “never been on an ocean-going ship before”. The Clive Steele was equipped with two 50 calibre machine guns and one 40mm Bofor gun. The veteran says he was trained with a couple of other men in the use of the Bofor gun. Evidence from him and other sources (Ted James) indicates they were not trained thoroughly. They thought themselves novices in the usage of the gun (statement of Ted James, annexure to exhibit 6).
9. The applicant’s evidence (exhibit 8) indicates the trip to Vietnam was not without incident. He says on the way the ship “hit a force 7 gale”. He says a tank came loose and was sliding about. He says he risked injury in his attempt to secure the tank. He was also afraid the Clive Steele was about to “tip over completely”.
10. The first Vietnamese port of call was Vung Tau (Ship’s Log, exhibit 10). The applicant recalls a trip from Vung Tau to Qui Nhon – apparently the Clive Steele carried a cargo of ammunition and cement. Qui Nhon is coastal city about half way between the demilitarised zone in the north and Vung Tau in the south. At the relevant time it had a hospital, an airfield and a naval base used by Korean forces.
11. The incident relied on by the applicant allegedly occurred on 17 February 1968, while the Clive Steele was anchored in Qui Nhon. He says that day the crew were told they were to undertake harassment and interdictory fire that night, and would all be on duty.
12. At this point, the applicant’s evidence conflicts with that of the respondent. The applicant says (exhibit 8) the crew began firing after dark. He says he was on “load and fire duty” (he aimed and fired the gun). He recalls that they were supposed to be firing at a target on a hill above a civilian compound. He could see tracer fire and explosions and formed the view they were not on target. He told the corporal in charge, who told him to keep firing. He did. Soon someone called a “check fire” (an order to cease firing). The gun crew was told to re-aim the gun. They were not able to do so, so the Clive Steele was repositioned. The applicant recollects they then fired for hours. An American tank resupplied them with ammunition.
13. At dawn the next day, the applicant recalls that he left the boat, walked down the beach and up behind the Korean naval base. He says he noticed there were a lot of people around. As he got closer he heard screaming and children crying and saw Korean soldiers. After 3-4 minutes the Koreans moved him on.
14. He then returned to the Clive Steele. He told the skipper he thought something “really bad happened last night”. The skipper replied that nothing bad had happened, and he should not talk about it or he would be in trouble.
15. From this the applicant assumed the shots fired in the exercise on 17 February 1968 had fallen onto the civilian compound, causing casualties.
16. When he returned to Vung Tau he was taken to a camp at the back beach. He says he was not under arrest but could not leave the camp. He was told by a commanding officer that he was a “coward and a troublemaker”. He was then sent home to Richmond in a Hercules transport aircraft. He says the aircraft was carrying some 20-30 coffins containing the remains of deceased Australian soldiers, as well as an Iroquois helicopter.
17. On landing in Richmond he says he was singled out, searched and sent to a base at South Head in a paddy-wagon. He was not locked up but was not allowed to leave the base.
The Law
18. This area of law is structured around ss120, 120A Veterans’ Entitlements Act 1988. (As the application for review was lodged after 1 June 1994, s 120A applies). The Federal Court clarified the way those sections are applied in Repatriation Commission v Delidio (1998) 83 FCR 82. The decision-maker must go through four stages in deciding whether an injury or disease is “war-caused” within the meaning of s 9 of the Act.
19. Before the Delidio steps the Tribunal must be satisfied of the correct diagnosis. The standard of proof is that of “reasonable satisfaction”: s 120(4).
Diagnosis
20. There are several medical reports in evidence that go to the question of diagnosis. On 7 December 1999 Dr Richards (exhibit 9) opined that the applicant suffers a personality disorder, alcohol dependence and PTSD (“if one accepts his account of events”).
21. In a letter dated 20 August 1996 (f24 T6) Dr Huang says Mr Richardson “presents with all the clinical features of a major depressive illness with anxieties and phobias…he also has features of post traumatic stress disorder”.
22. In a report of 18 November 1996 (f 42 T11) Dr West says he feels Mr Richardson “has a major depression and certainly has the criteria for PTSD”.
23. In a report of 22 April 1997 (ff61-67 T18) Ms Daniels says there is sufficient evidence to suggest Mr Richardson suffers from PTSD.
24. In a report of 6 May 1997 (ff68-69 T19) Dr Somerville (a neurologist, not a psychiatrist) says “he is about as typical a case of post traumatic stress disorder resulting from military service as one would be likely ever to see”.
25. The more recent report of Dr Stephenson (21 March 2003) also support the diagnosis of PTSD and alcohol abuse.
26. I am satisfied from the medical evidence that the applicant suffers PTSD, depressive disorder and alcohol abuse.
The Delidio Steps
27. Having settled on a diagnosis I can now proceed through the Delidio steps. Firstly the Tribunal must assess whether the material before it gives rise to a hypothesis connecting the veteran’s injury with the circumstances of his or her war service. Next the Tribunal must examine whether a Statement of Principles (SoP) exists in relation to the claimed condition. The third step of Delidio requires the Tribunal to assess whether the facts as stated by the applicant “fit” the SoP. The Tribunal does not make ultimate findings of fact at this point. If the applicant’s story is consistent with the SoP, the hypothesis is deemed reasonable. The injury will be considered war-caused unless the respondent can prove a fact inconsistent with the hypothesis, or disprove a necessary fact in the applicant’s story, beyond a reasonable doubt: that is the fourth step in the Delidio process.
28. The respondent conducted its case on the basis that the facts do not raise a hypothesis connecting the psychiatric injuries with the circumstances of Mr Richardson’s service. The cases in this area say the Tribunal must examine all of the evidence before it – without making an ultimate finding of fact – and assess whether the material points to the hypothesis. If the material does not point to the hypothesis, the claim must fail at that point. If the hypothesis is merely left open as a possibility, it is not reasonable and the claim must fail at that point also: Bull v Repatriation Commission [2001] FCA 1832; East v Repatriation Commission (1987) 16 FCR 517. As the Court explained in Bull: “The material must point to the connecting hypothesis”. In Repatriation Commission v Bey [1997] 1347 FCA, the Full Court of the Federal Court said
A reasonable hypothesis…is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities….
29. What is Mr Richardson’s hypothesis? It is that he suffers PTSD, depressive disorder and alcohol abuse as a result of the incident he experienced in Vietnam. In the context of this legislation, the “hypothesis” means the association between injury or disease and the facts which constitute the relevant incidents of the service: Bushell v Repatriation Commission (1992) 175 CLR 408.
30. I have before me several medical opinions – of Drs Stephenson, Huang, Somerville and Ms Daniels – that support the hypothesis that the applicant’s injuries are associated with the circumstances of his service. I note the decision of the High Court in Bushell said at 414-415:
The case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable where it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.
31. While evidence was not led as to the eminence of Mr Richardson’s doctors, on the basis of their evidence I cannot reject the hypothesis that Mr Richardson’s injuries are caused by his service.
32. Therefore the respondent’s submissions in this regard must be rejected. I am satisfied the material before me gives rise to a hypothesis connecting Mr Richardson’s psychiatric disorders with the circumstances of his service. I note there are some factual inconsistencies in his evidence, but as the High Court says “proof of facts are not in issue at this point”: Byrnes v Repatriation Commission [1993] HCA 51. (The High Court in Byrnes was applying the pre-1994 two-stage test. Byrnes nevertheless remains relevant to the first and fourth stages of the Deldio test). The first stage of Delidio is not the place to be disputing evidence. Inconsistencies in the applicant’s evidence, and the presentation of conflicting evidence, will be dealt with in the final stage.
33. The relevant SoPs are:
• Instrument No. 3 of 1999 as amended by Instrument 54 of 1999 concerning
PTSD;
• Instrument No. 58 of 1998 concerning depressive disorder;• Instrument 76 of 1998 concerning alcohol abuse or alcohol dependence.
34. The respondent conceded that if the applicant’s story was accepted it would satisfy factor 5(a) of the PTSD SoP. Factor 5(c) of the depressive disorder SoP is “having a clinically significant psychiatric disorder within the two years immediately before clinical onset”. PTSD is a clinically significant psychiatric disorder. Factor 5(b) of the alcohol abuse or dependence SoP is identical to factor 5(a) of the PTSD SoP. The effect of this is that the facts raised by the applicant are consistent with all the relevant SoPs.
Delidio step 4
35. The respondent argued I should not accept the applicant’s story. It led evidence that conflicted with the applicant’s version of the incident. This raises s 120(3) of the Act, which says:
(3) In applying subsection (1) or (2) 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.
36. The High Court explained the test in Bushell:
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making (the) determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.
37. Can the respondent disprove a raised fact, or prove an inconsistent one, beyond a reasonable doubt? I am satisfied they cannot.
38. The applicant was the principal source of evidence in support of his own case. There is a weight of objective evidence that calls into question some of the details of his claim.
39. The applicant called Ted James to give evidence. Mr James manned the Bofors gun with the applicant at the relevant time. He provided a statement to Mr Rodney Nott (who conducted research into the applicant’s claim). The statement is annexed to Mr Nott’s statement (exhibit 6). Mr James said:
We thought [the firing exercise] was for real…the Corporal supervisor told us that we were firing at a suspected Viet Cong underground hiding place on a hill that over-looked Qui Nhon… Aside from the yells of command, noise and smoke of the gun, I cannot remember anything more of that live firing exercise.
I do seem to recall that Ian Richardson did mention after this exercise that we could have hit anything. We didn’t know for sure what we were aiming at and we couldn’t see the exact target… I cannot recall that we ‘hit’ any personnel compounds because I couldn’t see what we hit…Additionally I am not aware of any subsequent investigation that would inevitably follow such an incidence.
40. His evidence is consistent with that of the applicant – up to a point. He does not confirm the applicant’s account of civilian casualties, although I note the applicant said he made the discovery on his own.
41. Mr Harris gave oral evidence, and also provided a statement (exhibit 12). Mr Harris was the Gunnery Sergeant on board the Clive Steele. He writes:
I specifically recall that on or around 17 February 1968 there was firing of rounds from the Clive Steele. I was involved in that firing from the forward turret of the boat in my position as Gunnery Sergeant…I was in a position to see where the rounds were going. Even though it was dark, we were using incendiaries, high explosives and also a tracer. During this firing session we were not firing on a village and we never fired on a village…
To my knowledge we never had a dispute with anyone as to whether we were firing on the wrong target and we were never accused of firing at the wrong target…
At no time was I informed that there had been killing of innocent civilians…had there been any dramas about killing innocent civilians I am certain I would have heard about it.
42. In oral evidence Mr Harris indicated that the Bofor gun was aimed by him at dusk when the ravine was visible with the naked eye. He said the gun was so accurate that when looking down the barrel “what you see is exactly what you hit”. This does not discredit or support the applicant’s version of events, because he says the gun was aimed incorrectly until the “check fire”. I note there was a suggestion from the applicant that the movement of the tides may have caused the gun’s trajectory to change in the time between the aiming and when firing commenced.
43. The firing practice is recorded in the Chief Officer’s Log Book on 17 February 1968 (exhibit 10). The entry records
18[00 hours] Gun crew “Stood To” Firing practices commences.
19[00 hours] 195 rounds expended completed 0100 hrs.
44. This does not discredit or support the applicant’s story. (He says there was a cover-up).
45. The respondent tendered an extract from the book “Letters from a Viet-nam Hospital” (exhibit 11). That book was written by Dr P Smith. It consists of excerpts of letters written by Dr Smith, the leader of a New Zealand medical team that was serving in Qui Nhon at the time of the Tet Offensive, and afterwards. I accept the letters represent a detailed account of what was happening in Qui Nhon at the time, with a particular emphasis on the operations of the hospital. Dr Smith wrote letters on 10, 17, 18 and 23 February 1968. He makes no mention of any action occurring in Qui Nhon on 17 February 1968 in any of the letters. I note he did write about a bus-crash. Considering the magnitude of the alleged incident, and the important medical role Dr Smith and his team occupied, it is surprising that he would have been unaware of the incident or forgotten to write about it.
46. In his statement of 27 November 1997 (exhibit 4) Mr Wynne recalls the memorable parts of serving on the Clive Steele at the relevant time. He mentions the firing of the Bofors gun. He says the Clive Steele had taken over the nightly harassment fire from a US Army tank. He also recalls the “check fire”. He does not mention anything odd about the incident, only that the stern of the Clive Steele was swung at one point to give the gun a better sighting.
47. The respondent also pointed out some inconsistencies in the applicant’s evidence. In oral evidence he said the Americans were simultaneously firing at the same target. Other evidence (statement of Mr Wynne) reveals the Americans were not firing that night.
48. Furthermore the applicant says following the incident he was detained, both in Vung Tau and in South Head in Australia. The respondent adduced his service record which indicates this did not happen – although the applicant says he was never formally detained, which explains the absence of an entry in his service record.
49. Some minor inconsistencies arose in oral evidence. The applicant said the Bofors gun could be swivelled around and pointed directly at the conning tower. Mr Wynne said it that could not be done. Mr Harris also said there was a safety rail built into the back of the turret, so it could not be aimed at the conning tower. Mr James said he was not aware of anything that could prevent the gun from firing at the conning tower.
50. The respondent suggested the Korean naval base did not exist. The applicant was quite definite as to its existence. That was largely supported by other witnesses. Mr Day said there was “a full naval base”. He said there were Korean warehouses, military police, soldiers, naval personnel and dependent villages. Mr Wynne said he could not remember whether there was a Korean naval base, but knew there was a Korean military unit in Qui Nhon. Mr Harris said it was a Korean rest and convalescence centre.
51. The applicant said Mr Harris heard a “check fire” from the bridge, after which he ordered the gun cease firing. Mr James (who was on the gun crew) said he remembered stopping firing for a short period a number of times. He cannot remember the ship being moved around at all. Mr Wynne says he heard a check fire from the American forward observers. He relayed that to the gun captain (Mr Harris) from the turret. This did not accord with his evidence given in earlier proceedings that the check fire came from the gun position.
52. Mr James gave confused evidence as to whether the Bofors gun moved when it fired. He said he tried to hold the gun steady, but it jolted out of position when it fired. On the other hand Mr Harris said the gun did not move when it was fired. He said “it’s all spring loaded and air assisted” and firing it did not affect its aim. Firing it did cause it to “rock a bit” but that did not materially affect its aim (as it was firing single shots).
Conclusion
53. The applicant’s account of the events in question was flawed. I was also referred to evidence given by the applicant in earlier proceedings in relation to the passage of special forces troops that the applicant now concedes were a dream. His recollection of the events has clearly been affected by his psychiatric conditions, his alcoholism and the passage of time. A simple example is his recall of the involvement of the American tank in the barrage: I am satisfied after hearing all of the evidence that the tank did not participate in the barrage, despite the applicant’s insistence that it did. I am satisfied the applicant’s evidence in relation to the events of 17-18 February 1968 (and subsequent events) must be approached with caution.
54. While the respondent was able to dispute some of the details of the applicant’s account I am satisfied the central part of it has not been disproved beyond a reasonable doubt. The gun may have been misaimed, and shells may have fallen on non-combatants in or near a Korean facility, which the applicant may have seen when he got off the boat. To use the language of the High Court in Bushell, the respondent is unable to be “satisfied beyond a reasonable doubt that it cannot accept the raised facts, or so many of them as are necessary to support the hypothesis”.
55. The decision under review must be set aside. The applicant’s PTSD, depressive disorder and alcohol abuse or dependence are war-caused. I note the respondent did not lead evidence on the rate of pension payable but conceded that if the Tribunal found the injuries were war-caused the applicant would be entitled to pension at the special rate. I think that concession is appropriate. The applicant is therefore entitled to pension at the special rate pursuant to s 24 Veterans’ Entitlements Act 1986. The date of effect is 8 July 1997.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: .....................................................................................
Associate: Thomas RitchieDate/s of Hearing: 23 July 2004
Date of Decision: 10 November 2004
The applicant was represented by Mr Clutterbuck of counsel.
The respondent was represented by Ms Ford of counsel.
0
9
0