Saunders and Repatriation Commission
[2005] AATA 1058
•24 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1058
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/546
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER SAMUEL GEORGE SAUNDERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date24 October 2005
PlaceMelbourne
Decision
In application V2004/546 the decision under review in so far as it relates to diagnosis is set aside and in substitution IT IS DECIDED the applicant suffers generalised anxiety disorder. The remainder of the decision is otherwise affirmed.
..............................................
Senior Member
VETERANS’ ENTITLEMENTS – Vietnam veteran – PTSD accepted in 1999 – decision revoked by s 31 review in 2001 – affirmed by VRB but substituted diagnosis – number of events in service alleged – applicant suffers from motor neurone disease – unable to give evidence – statement received as his evidence – finding of generalised anxiety disorder as diagnosis – finding that some events did occur but did not constitute severe psychosocial stressors – finding that generalised anxiety disorder not war-caused
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Mines v Repatriation Commission [2004] FCA 1331
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 49 ALD 193
Fogarty v Repatriation Commission [2002] FCA 1541
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Hancock [2003] FCA 711
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
24 October 2005 Mr John Handley, Senior Member 1. The applicant applied to review a decision made by the Veterans’ Review Board (“VRB”) on 16 April 2004. However this application has a history which commenced many years before the decision then made.
2. Mr Saunders lodged a claim on 12 February 1999 for acceptance of conditions described as “back and neck injuries” and “PTSD” (T‑documents, page 70). On 18 May 1999, the respondent accepted a claim for “cervical spondylosis” and “post-traumatic stress disorder” and granted pension at 40 per cent of the general rate (page 92).
3. Mr Saunders challenged the decision with respect to the assessment of rate of pension. On 13 December 1999 the VRB affirmed that decision (page 96).
4. For reasons which are not apparent from the T‑documents, the respondent later commenced an investigation into the circumstances of the applicant’s service and the events alleged by him as having occurred within service and giving rise to the condition of PTSD. Writeway Research Services (Writeway) were consulted and commissioned to investigate events within service alleged by Mr Saunders. A report was prepared and received by the respondent on 14 November 2001 (page 251). The respondent also arranged for the applicant to be examined by Dr Haik, a consultant psychiatrist, who provided a report dated 8 November 2001 (page 238).
5. On 13 December 2001, the respondent advised Mr Saunders that by reason of the content of the report of Writeway, doubt had been expressed as to the “historical accuracy” of the events alleged to have occurred in service (page 258). Mr Saunders was given the opportunity to respond to that allegation. On 20 August 2002, the respondent made a decision pursuant to s 31 of the Veterans’ Entitlements Act 1986 (“the Act”), to revoke the determination made on 18 May 1999, finding that PTSD was war-caused. The respondent in effect decided to refuse the claim for PTSD “on the ground that [the applicant] does not suffer from that disease but from depressive disorder and personality disorder”. Additionally it was decided that depressive disorder and personality disorder were not war-caused or defence-caused diseases. Further, the respondent decided to reduce the payment of pension from 40 per cent of the general rate, to 30 per cent of the general rate with effect from 5 September 2002.
6. Mr Saunders later obtained legal advice. Proceedings were issued on his behalf in the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”). Those proceedings were later withdrawn when an application was made to the VRB to review the decision made on 20 August 2002. The VRB made its decision on 16 April 2004, affirming the decision of 20 August 2002, and the applicant applies by these proceedings to review that decision.
7. Mr Saunders is presently 70 years of age having been born on 27 October 1934. He was a member of the Royal Australian Air Force (“RAAF”) between 26 November 1959 and 31 January 1980. He was discharged at the rank of Sergeant. He was engaged in operational service at Ubon between 29 July 1964 and 7 April 1965; in Vietnam between 22 April 1970 and 22 April 1971, and was engaged in eligible service between 7 December 1972 and 31 January 1980.
8. Prior to the commencement of the hearing, it was learnt at a Directions Hearing that Mr Saunders was seriously ill and suffered from motor-neurone disease. The Directions hearing was convened to discuss the manner in which the hearing could be conducted after learning that Mr Saunders was unable to verbally communicate. It was anticipated that he would communicate at the hearing by means of a device which produces a synthetic voice.
9. One or two days immediately before the hearing was scheduled to commence it was learnt that Mr Saunders had been admitted to hospital and would not ever be able to attend a hearing. Indeed, the applicant’s representative advised that on the basis of Mr Saunders’ rapidly deteriorating ill health, life expectancy was limited. The hearing therefore proceeded in his absence.
10. At the outset the obvious should be stated; the events alleged by the applicant occurred more than 30 years ago and the memories of the applicant – and of the witnesses of both parties – must be regarded as imperfect. Recollections will be imprecise. Indeed the possibility exists that some events or details surrounding them may not have been recorded.
11. The allegations made by the applicant and the interpretations of them by others have exposed him to the risk of a perception that he is lacking in credit. This would be unwarranted and unfair. I am not satisfied that he has intended to deceive and I regret that he was unable to give evidence in these proceedings.
12. Mr Larkin of Counsel appeared on behalf of Mr Saunders and Ms McDonnell of Counsel appeared on behalf of the respondent. Mr Larkin confirmed that application (V2004/588) issued by Mr Saunders seeking payment of special rate pension will be withdrawn and accordingly the review proceeded only to seek a restoration of the finding that PTSD was war-caused and to have a finding also made as to the rate of pension that should be paid. It was acknowledged by Mr Larkin that the quantum of general rate pension upon a finding that PTSD was war-caused would be modest.
13. A number of documents were received into evidence and will be referred to in these reasons. Evidence was heard from Mr Sounness and Dr Epstein, a consultant psychiatrist. The respondent called Doctors Walton, Haik and McCarron, consultant psychiatrists and Dr Stanley who treated.
14. Mr Saunders instructed his solicitor to prepare a statement on 5 January 2005. That statement was received into evidence as Exhibit D. The statement in large part responds to findings that were made by the respondent’s delegate when the decision of 20 August 2002 was made. Those findings are found at page 264 of the T‑documents in the following terms:
· Mr Saunders served in 1 Operational Support Unit, Vung Tau, as a Communications Operator;
· Mr Saunders’ duties involved the reformatting of messages for transmission by electronic means; and receipt of messages and conversion into readable text for distribution;
· That Mr Saunders did not fly as a gunner on helicopters or ride shotgun on vehicles;
· That Mr Saunders was not required to type reports including photographs of tortured children;
· That Vung Tau did not contain six or seven clinics where Mr Saunders could have witnessed wounded children in cots;
· That there is no record of any airman dying of burns in the circumstances described by Mr Saunders, during his time in Vietnam;
15. The statement of Mr Saunders is reproduced in its entirety as follows:
I was born on 27 October 1934.
I served in the RAAF from 26 November 1959 to 31 January 1980. During that period I had operational war service as follows:
29 July 1964 to 7 April 1965- Thailand
22 April 1970 to 22 April 1971- Vietnam.
I note that the Repatriation Commission revoked its prior acceptance of PTSD as war caused in part of the report the Department of Veterans’ Affairs received from Writeway Research Service. That report refers to a number of stressors. Dealing with the stressors in the order referred to in the report by Writeway Research Service dated 9 November 2001, I say:
(1)I did ride shotgun on land vehicles during a period of about 3 months in mid to late 1970. I was based at Vung Tau at the time. To the best of my recollection I took part in about 5 or 6 such journeys and on each occasion I travelled in the back of a land rover and was armed with twin M60s. On each of the occasions I was travelling in a convoy of approximately 5 vehicles. One of these journeys was between Vung Tau and Saigon and the others were between Vung Tau and Nui Dat.
I was only fired at on one occasion whist travelling in the land rover in the aforementioned journeys. On that occasion I heard the gunfire but could not see where it came from. The convey in which I was travelling accelerated and to the best of my knowledge our vehicle was not struck by any fire. It is my recollection that Corporal Colin Smith was travelling with me at the time but I cannot recall the names of any other person.
During some of the aforementioned convoys I did witness the bodies of Viet Cong on the side of the road.
On one occasion only I flew in a helicopter and acted as a gunner. We were fired upon and I believe that the helicopter was struck. I only became aware of the fact that we had been fired upon after we landed.
(2) I did see photographs of tortured/mutilated children whilst typing reports for Intelligence Officers. I was a Communication Officer and one of my duties was to type such reports and I was given these duties particularly because I was a fast typist. I disagree with the assertion in the report by Writeway Research Service that it was not part of my normal duties to type reports. The fact is that I did type the reports frequently and it is to be noted that my muster included telecommunication operations. The Writeway Research Service report refers to statements taken from Commanding Officers. The fact is that the Commanding Officers did not directly supervise my duties or the typing which I performed. My duties were allocated to me by the Radio Officers. To the best of my recollection the name of one of the Officers during the period was Squadron Leader Williams and he would have a much better idea than the Commanding Officers of the duties which I performed. I do recall photographs which depicted objects/sticks which had been inserted into the ears of children and this horrified me.
(3) I did attend medical facilities at Saigon in company with a civilian from the US Peace Corps. I visited approximately 6 or 7 clinics/orphanages at Saigon. The author of the Writeway Research Service report incorrectly has assumed that the clinics which I visited were at Vung Tau.
During the aforementioned visits to the clinics/orphanages I did witness children who had been badly injured. They were predominantly suffering head injures. I was told during the visits that the children were being given placebos because there was no available treatment for them.
(4)One of the soldiers whom I knew did die as a result of bums suffered whilst he was refuelling an aircraft. The incident occurred at Vung Tau. I cannot now recall the name of the person. At the time I was in the Communications Centre and his name came up requesting permission to transport him to Manila. I transmitted the message requesting permission for transfer on several occasions but with no response and the man died without getting a transfer. I found the experience to be very upsetting and I felt helpless.
The author of the Writeway Research Service report has provided a number of names of potential personnel who might have met the description of the person whom I was referring. The report puts forward the most likely candidate as being a Mr. McNair. The name McNair is not familiar to me and nor are any of the other names referred to in the Writeway Research Service report.
(5) Another incident which I witnessed (and which is not referred to in the Writeway Research Service report) was one where I was swimming off a beach on the South China Sea at Vung Tau. A fishing boat strafed the beach. To the best of my knowledge no one was struck by the fire. I was swimming at the time and feared that I might be shot. The beach was subsequently closed as a consequence of the incident. There were only a few people at the beach at the time.
(6) Also, whilst in Saigon, I was grabbed by 2 US Military Police Officers who pushed me into a car. They told me that they had rescued me from a mugging which was about to occur and pointed to 2 men on a motorcycle who were by then departing the scene with haste.
As a result of all of the above incidents I believe that I developed my psychiatric condition. Following each of the incidents I did suffer intense fear, helplessness or horror.
I was married with children prior to my tour of Vietnam. I certainly experienced martial difficulties with my wife and we went through periods of conflict and unhappiness. In summary, I believe that it was an unhappy marriage. Nonetheless, I do not believe that I was unduly unhappy before my tour of Vietnam and I believe that I was not suffering any psychiatric illness before my tour of Vietnam.
Ever since my tour of Vietnam I have suffered anxiety, depression, flashbacks and nightmares. I also suffered anger attacks. The flashbacks and nightmares relate to bodies on the side of the road, children in orphanages and mutilated children.
From 1975 until 1988 I lived at Darwin. My treating general practitioner in Darwin was Dr. G. Thompson. I recall that he was the first doctor who expressed concern about my nervous condition although I never directly sought medical treatment for the condition from him. It is my recollection that he referred me to a physician in Adelaide (whose name I cannot recall). The physician conducted tests on my heart and advised me to rest for a week. To the best of my recollection this referral was some time in about the mid 1 980s.
In about the mid 1990s my then treating general practitioner (Dr. A. Ellacott of Thirroul, New South Wales) also became concerned about my emotional health. She advised me to seek assistance at the Vietnam Veteran’s Counseling Service. She also subsequently referred me to Dr. 0. Stanley (psychiatrist) in MacQuarrie Street, Sydney.
My current treating family doctor is Dr. D. De Villiers of Clarendon Medical Centre, Maryborough. I am currently being treated by Dr. J. King (neurologist) for motor neurone disease. This condition was diagnosed on 8 December 2004 and the symptoms include impaired speech and difficulty swallowing. I first suffered these symptoms in about June 2004.
I am currently in receipt of a disability pension at 30% of the general rate from the Repatriation Commission with respect to cervical spondylosis.
After discharge from the RAAF I purchased a secretarial services business and a book store business. I ran both businesses until I closed the book store in about 1979.
At that stage I commenced a picture framing shop and gallery business and continued with the secretarial services business. In 1987 I closed the secretarial services business because of my deteriorating psychiatric condition. I was suffering difficulties with loss of memory, depression and irritability and was having difficulties with interpersonal relationships. By 1988 my psychiatric condition had further deteriorated and I reached the point where I could not keep working. I had a number of disputes with customers. I accordingly sold the picture frame gallery business in 1988 and my wife and I left Darwin and moved to Perth. The sole reason for ceasing work at this stage was my psychiatric condition.
During 1989 I obtained work for 3 different firms as a picture framer. I worked for approximately 3 months. I was unable to cope with the employment and made too many mistakes due to my deteriorating emotional condition (and especially due to symptoms such as poor memory). I have not worked since attempting work in 1989 in Perth as a picture framer.
In June 1992 I was made bankrupt following my wife’s retirement. The Department of Veterans’ Affairs has indicated that it believes that my depression is due to the bankruptcy. The fact is that my depression pre-existed those financial troubles and (as stated previously) the reason for ceasing work some years prior to the bankruptcy was the deteriorating psychiatric condition. I believe that I am totally incapacitated for work as a result of my psychiatric condition.
stephen james sounness
16. Mr Sounness is currently the Policy Investigation Manager with the Defence Cryptographic Unit of the Department of Defence in Canberra. He completed a lengthy and comprehensive letter dated 16 May 2005 which was addressed to the Department of Veterans’ Affairs (“DVA”) and which was provided to Mr Saunders. That letter was received into evidence as Exhibit A. It is reproduced as follows:
I was approached by Mr Chris SAUNDERS (formerly CPL SAUNDERS in Vietnam), whom I served with in the RAAF to write a letter corroborating some facts provided to you in support of a claim for Post Traumatic Stress Disorder (PTSD).
I have had no contact with CPL SAUNDERS for over thirty years and have no knowledge of CPL SAUNDERS’ current medical conditions. However, I can provide verification of some activities conducted by CPL SAUNDERS and myself at RAAF Vung Tau, South Vietnam during the period June 1970 through to April 1971.
The primary duties conducted by CPL SAUNDERS, other operative staff and myself while serving at the RAAF No I Operational Support Unit Communications Centre I OSU COMMCEN) at Vung Tau, South Vietnam at that time were as follows:
Preparation typing and transmission of formal messages between No 1 Operational Support Unit (1OSU COMMCEN and other Defence agencies within South Vietnam and back in Australia.
Receipt, processing and delivery of formal messages between external agencies and IOSU COMMCEN.
Receipt, transmission and processing of messages by radio telephone between IOSU COMMCEN, RAAF Butterworth, Malaysia and the RAAF Base in Phan Rang, South Vietnam.
Driving or riding shotgun for delivery of after hours Immediate and/or Flash messages on the public road between the IOSU COMMCEN at Vung Tau Airfield and the RAAF Cantonment (living area) at Vung Tau. The RAAF cantonment was within the Vung Tau Airfield security perimeter when Chris and I first arrived but after the USAF withdrew a couple of kilometres up the road the gates were locked each evening and emergency after [tours messages for RAAF executive officers had to be delivered via an out of hours gate requiring a trip of approximately ten kilometres on a public road and one COMMCEN member was required to drive and the other to ‘ride shotgun’ (i.e. sit in the passenger seat with an F1 sub-machine gun to provide security on the journey due to local Viet Cong activity.
Conduct daily physical checks of National classified material held at IOSU COMMCEN.
Take receipt of, store and re-issue National classified material lodged at I OSU COMMCEN for overnight storage by Australian aircrew.
Act as ‘Safehand’ courier (i.e. escort National classified material between the 1OSU COMMCEN at Vung Tau and Australian aircraft on the tarmac or to the Australian Army COMMCEN at Back Beach (Vung Tau) or to Allied COMMCENs, as required.
Carry out ‘Service’ action on missing or garbled message traffic.
Maintain COMMCEN diaries and radio circuit logs.
Conduct daily burns of National classified material using a caged incinerator approximately 100 yards from the COMMCEN.
Undertake monthly weapons training on semi-automatic and automatic rifles (LIAI, LIA2 and M16), Fl sub-machine guns, M60 machine guns and Browning 9MM automatic pistols for defensive action. In addition to personal weapons (L1AIs) the IOSU COMMCEN at Vung Tau held a number of 9MM pistols, M16s and a quantity of ammunition along with food and water to allow the COMMCEN to be defended for several days without resupply.
In addition to the above, our duty statement, as with every duty statement I ever saw at every COMMCEN I ever worked at in thirty four years in the RAAF, also stated “carry out other duties as directed by your superior officers”. In our case at Vung Tau, the sergeant (SGT), the warrant officer (WOFF) and the Base Radio Officer (BRADO) who was officer-in-charge of the 1OSU COMMCEN.
Given the nature of employment in the military, particularly in a theatre of war, I am surprised that a research group would so readily make an assertion that some tasks were not part of CPL SAUNDERS’ normal tasks as a communications operator, without further consultation with CPL SAUNDERS unless they have little experience of the activities of an airman in such situations. The military is not, and has never been, a democracy and military personnel, particularly when serving in a theatre of war, obey orders.
During my time at the IOSU COMMCEN in 1970/71, in addition to my normal day-to-day duties at the COMMCEN (as listed above), I was ordered by the SGT, OIC and WOFFIC to carry out such diverse activities as ‘riding shotgun’ on road convoys, painting buildings and assisting with the construction of defensive facilities at the IOSU COMMCEN and RAAF cantonment. I did not come under fire when on road convoy duties as did CPL SAUNDERS but whilst on the convoy I did see the results of recent fighting (i.e. fresh bullet holes in buildings, local foliage etc).
CPL SAUNDERS was an exceptionally fast typist and I know that the BRADO did ‘loan’ CPL SAUNDERS to the Intel Section to assist in typing of intelligence reports and correspondence. I know that CPL SAUNDERS was also directed to ‘ride shotgun’ on road convoys as was I.
I did not view the photographs associated with intelligence reports or view the specific reports that CPL SAUNDERS typed for Intel section but I do remember typing up one incident on the murder and decapitation of a local headman, his wife and five small children and the placing of their heads on poles in the middle of the village as an example not to help Allied troops. I remember finding this incident particularly disturbing at the time.
During the time that CPL SAUNDERS and myself served at the IOSU COMMCEN I also recall a number of other incidents as follows:
One of the airmen who shared our quarters at the RAAF cantonment was burned to death when his helicopter was shot down.
One of the staff who worked with us at the I OSU COMMCEN had his leg taken off in a convoy accident with a US Army truck.
One of the Airfield Defence Guards was killed in the hangar opposite the 1OSU COMMCEN when unloading a machine gun from a helicopter,
Opening a sealed bag at the COMMCEN and finding a dismembered corpse, it was mistakenly delivered to the COMMCEN which was next door to the hospital.
A number of incidents when shots were fired into the RAAF cantonment, including one when a grenade was thrown over the perimeter fence after a volley of shots from an automatic weapon. There were also a number of rocket attacks on the airfield.
COMMCEN staff processed death and casualty advice messages on a daily basis and also intelligence summaries on possible impending major attacks on Australian and Allied facilities.
A large number of COMMCEN staff, including myself, who served with CPL SAUNDERS at the 1 OSU COMMCEN coped with the more disturbing aspects of their time in South Vietnam with rough humour and alcohol. However, I remember CPL SAUNDERS was a quiet man and do not remember him using these outlets. When not on duty CPL SAUNDERS used to indulge in his hobby of photography and I also remember that he used to play the organ at the local US Army Episcopal Church on Sundays. CPL SAUNDERS used to spend a lot of off duty time in solitary activities (i.e. developing and processing photographs).
CPL SAUNDERS also wished me to confirm the requirement to obtain approval to travel on Allied aircraft. I do not know what the general requirements were but any travel on Allied aircraft had to be first cleared through the officer-in-charge of the IOSU COMMCEN. I do not know what other requirements existed as I only travelled by RAAF aircraft during my time in South Vietnam.
As I stated at the beginning of this letter I have had no contact with CPL SAUNDERS for over thirty years and do not know his current state of health. However, I can confirm a lot of the events he experienced and, given time, could probably find other members who served with us that could do the same. I can state that CPL SAUNDERS experienced a number of disturbing events during his tour of South Vietnam.
I know because some of these things still prey on my mind today. I know that when I served on active service in East Timor in one of the first groups to deploy in 1999 that certain things triggered memories of those days I thought I had long forgotten, the most significant trigger being overflown by Iroquois (RNZAF) helicopters in a gun pit at dawn in Dili. I believe I have coped with my time in Vietnam but during my association with a number of veteran’s groups since that time I have noted a number of personnel who were profoundly affected by the experience.
Please feel free to contact me at either of my above listed work numbers if you require clarification of any of the preceding information.
17. Mr Sounness was examined thoroughly concerning the contents of his statement. He said that he provided the statement to Mr Saunders in anticipation that it would eventually be made available to the respondent. He said that he had not ever been contacted by any person from the respondent or from Writeway Research Services. Nor has any person other than the applicant’s solicitor contacted him seeking clarification with respect to the events described by him in his statement.
18. Mr Sounness was adamant that the applicant did ride shotgun as alleged. He said that towards the end of 1970 the United States Air Force withdrew its perimeter security guarding of the Vung Tau airfield and relocated. After hours messages were conveyed along a public road over a distance of approximately 10 kilometres. He said that two RAAF personnel would be responsible for this activity. One person would be the designated driver and the other person would be a shotgun escort. He said that RAAF personnel were trained in the use of guns on a monthly basis and were competent in the use of guns if necessary. He said that other incidents did occur on the base whilst both he and Mr Saunders were present. He recalled there was an occasion when two Vietnamese persons riding a motor bike threw grenades over a fence and on another occasion a rocket landed within the perimeter of the base having been fired from a nearby island.
19. Mr Sounness was acquainted with the contents of a report completed by a consultant for Writeway Research Services (found at page 251 of the T‑documents). He said that he was surprised to learn that Writeway had reported that the Base Commanding Officer had no knowledge of any RAAF personnel riding shotgun, other than Air Force Defence guards (ADG’s). Mr Sounness said that he was surprised at that finding because after hours messages were delivered to the Commanding Officer, and he questioned the qualifications of the persons consulted by Writeway. Whilst acknowledging that prior to the US withdrawal, the Commanding Officer would not know that RAAF personnel operated as shotgun, he said that Writeway should have made enquiries of the base radio officer, who would have verified that RAAF personnel did operate as shotgun. He said the Commanding Officer would attend the radio facility on two occasions per year and then for half an hour on each occasion to appraise himself with the work conducted in that unit but would otherwise have no knowledge of the duties. He acknowledged that the Commanding Officer may have assumed that an ADG had acted as an escort after hours.
20. Mr Sounness was also advised that the Writeway officer questioned whether he and Mr Saunders had typed reports. Mr Sounness was adamant that both he and Mr Saunders not only typed reports, but were also required to perform work and other duties beyond their designated responsibilities. For example, Mr Sounness said that there were occasions when he was directed to paint the pay office and recalled that his written terms of deployment included a clause to the effect that he and others would be required to undertake other duties as directed by a superior officer. Additionally he said that there were many occasions when the intelligence unit were short of staff and personnel from the radio command centre were “borrowed”. He said that Mr Saunders was frequently “borrowed” because he was well known as being a fast typist. He said it was usual for persons to type at 60 wpm, however Mr Saunders was known to be a person who could type at 100 wpm. He was engaged to type reports which were of a confidential and secure nature.
21. Mr Sounness learnt that another statement had been received into evidence (Exhibit C) from Mr Harris dated 12 May 2005, who reported that he had served in Vietnam as a communications operator and was responsible for typing situation reports, medical evacuation lists and intelligence reports for transmission to Australia. Mr Sounness agreed that reports of that kind had been typed and also confirmed comments made by Mr Harris that the typing of the medical evacuation lists were “the worst” because they listed the names of persons and details of their injuries, often with a graphic description. Mr Sounness said that he also found the intelligence reports to be distasteful because they often recorded atrocities and had photographs attached. He recalled an occasion when a report referred to finding persons mutilated with body parts attached to stakes in a village. He said Mr Saunders would have typed similar reports particularly with respect to activity around Phuc Tuy, where atrocities had been committed.
22. Again Mr Sounness remained adamant that the Commanding Officer would not know of the duties of persons within the communications centre and said that it would appear that the Writeway officer did not locate appropriately qualified persons when conducting research investigations. He used the example that in a corporation the Chairman of the Board would not be asked to describe the duties of persons employed in “accounts”.
23. In his letter at page three, Mr Sounness referred to a number of events which he said occurred on base. The first incident described involved the death of an airman when his helicopter had been shot down. Mr Sounness could not recall that person’s name and could not recall whether the person had died instantly or had died sometime later. He said that the pilot was not part of the communications staff but had shared quarters and had often drunk with other communications staff in the mess. He said Mr Saunders would have been present on base when the helicopter had been shot down.
24. Another incident described was of a communications centre staff member who suffered a leg amputation in a motor vehicle accident. He said Mr Saunders would have known of that episode. On another occasion he reported a defence guard had been killed when there was a discharge from a machine gun being unloaded from a helicopter. Mr Sounness said Mr Saunders would have known of this incident. Indeed, he said that everyone at the communications centre would have known about it because they would have heard the shot that killed the guard. Mr Sounness also referred to the finding of a body bag containing the mutilated body of a United States airman. He said that Mr Saunders would not have observed the remains of the body, but he was aware of it.
25. Mr Sounness described Mr Saunders as coming from a sheltered upbringing who frequently withdrew to develop photographs (his hobby), to play the organ as a volunteer at a local church and to assist at a local orphanage.
26. In cross-examination Mr Sounness was adamant that messages were delivered after hours and he and Mr Saunders had participated in that activity. He said the vehicle used was a yellow kombi van which would have one person as a driver and another person in possession of a machine gun seated in the passenger’s seat. He said that he had never been fired upon nor had he ever heard of any other person being fired upon. He said that Mr Sounness did take the role as escort in the van and on other occasions he would be the driver. Mr Sounness said that he did not ever work the same shift as Mr Saunders and assumed that he was either the driver or the person holding the gun, but he was adamant that messages were delivered after hours in the van with Mr Saunders present. Mr Sounness said that he did not ever see or hear of dead Viet Cong persons on the roadway. He said that he did hear of reports of bodies but he did not know whether those persons had ever been identified.
27. Mr Sounness said that there was an occasion where he had been directed to be the shotgun on a truck convoy to Baria. He said there were many occasions when he and other communications centre personnel were asked to undertake escort duties. On the occasion that he was the shotgun escort during this convoy he said they passed through a town that had been “shot up”, but his convoy had not been fired upon. He said that there were some occasions where convoys had been fired upon and he had learnt of this from the personnel when they returned to base.
28. Mr Sounness said that Mr Saunders did not have a reputation as an “ace gunner” and said that no person within the communications centre had such a reputation. He said the applicant could not be described as being “macho”, but rather who was a person who had an interest in photography and playing an organ in a local church. He was well known as being a fast typist. He was not a person who would volunteer to be a shotgun escort in a helicopter and work of that type would only be undertaken if he, or others, were directed by superior officers to undertake it. Mr Sounness said that requests for persons to volunteer to undertake duties were frequently made.
29. The witness said that he did not ever see photographs that were attached to intelligence reports but did recall other persons speaking about what was depicted in the photographs. He said that Mr Saunders had an interest in photography and frequently was engaged in taking photographs of children and developing them in an attempt to raise money and sponsorship for orphanages. He said he did not ever see children with injuries or disease, but did not ever attend the hospitals or orphanages where Mr Saunders performed work as a volunteer. With respect to the four incidents referred to in his statement, Mr Sounness said that he understood Mr Saunders was present when the helicopter pilot was shot down and suffered burns, but he could not recall whether Mr Saunders was actually present on the occasions of the other three episodes. He confirmed that Mr Saunders did not see the mutilated body of the United States Airman in a body bag but he did recall speaking to Mr Saunders about it.
30. The witness was referred to an event, described by Mr Saunders in his statement, of swimming at a beach and being strafed by shotgun fire. Mr Sounness said that RAAF persons were permitted to swim at a beach located near an Army base approximately five kilometres away, which was regarded as safe and which was guarded. He said he could recall hearing about enemy fire at the Army base but not at the site of the beach located near that base.
31. In concluding his evidence Mr Sounness confirmed that the “disturbing events” that he referred to in his statement at page four, comprised Mr Saunders having to type intelligence reports which contained distressing detail, having to either ride shotgun or be a driver in a vehicle which delivered after hours messages, probably being aware of images depicted in photographs attached to intelligence reports and on at least one occasion, being part of a convoy off base. Despite having said earlier in his evidence that he could not recall an episode described by Mr Saunders in his statement of a person being killed by burns in a refuelling accident involving an aircraft, Mr Sounness said that he could now recall a “refuelling incident”. However he could not recall if anyone had been killed or injured.
32. In re-examination Mr Sounness said that the usual practice of engaging volunteers was for a superior officer to request persons to volunteer but “if there was silence” persons would then be selected. He said that persons would then be obliged to undertake those duties because they would be directed to do so.
DSM - IV
33. Ms McDonnell examined each medical witness extensively upon all components of the DSM - IV definition of PTSD. For ease of comprehension of the medical evidence, that definition is reproduced as follows:
Diagnostic Criteria for
309.81 Posttraumatic Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present:
1. 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
2. the person's response involved intense fear, helplessness, or horror.
Note: In children, this may be expressed instead by disorganized or agitated behaviour
B.The traumatic event is persistently reexperienced in one (or more) of the following ways:
1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
2. recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
3. acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
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:
1. efforts to avoid thoughts, feelings, or conversations associated with the trauma
2. efforts to avoid activities, places, or people that arouse recollections of the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D.Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor
michael epstein
34. Dr Epstein is a consultant psychiatrist who examined the applicant on 23 March 2005 and provided a report of the same day. At the time of consultation and in the preparation of his report, Dr Epstein had access to a number of documents and medical reports which he itemised in the body of the report that he prepared.
35. Dr Epstein confirmed in evidence that it was his opinion that the appropriate diagnosis for the illness suffered by Mr Saunders was PTSD “of the delayed type”. He said that diagnosis is consistent with DSM - IV, and in making that diagnosis, he took account of extreme traumatic stressors suffered by the applicant and also considered his response to the stressors and the resulting symptoms.
36. Dr Epstein said that the history of the applicant of “riding shotgun” in vehicles, being exposed to, or having heard of, a staff member who suffered a leg amputation, learning of a Defence Force guard killed in an aircraft hangar and learning of the presence of a dismembered corpse, would be regarded as “stressors”.
37. Dr Epstein said that he understood that his opinion as to diagnosis differed from an opinion expressed by Dr Haik. He said an opinion that had been expressed by Dr Haik, of the applicant suffering from a narcissistic personality disorder, was not a diagnosis that he had considered and was not a diagnosis he thought was accurate. Dr Epstein said he was surprised at the conclusions expressed by Dr Walton in his reports (although in fairness it was learnt later that part of Dr Walton’s reports were inadvertently not made available to Dr Epstein). Dr Epstein said that he was also aware of opinions expressed by Dr Stanley and Dr McCarron, who expressed an opinion of the applicant suffering from dissociative disorder and said that such a condition could run “in parallel” with PTSD as well as an anxiety disorder or a depressive illness. Additionally, or in the alternative, he said that the symptoms of disassociation could be included as part of PTSD. Dr Epstein also said that amnesia formed part of PTSD and with those features, a person may give similar but varying accounts of an incident when being examined, or where a history is taken by an examining doctor.
38. In cross-examination, Dr Epstein said that the “first premise” for making a diagnosis of PTSD was for a patient to have “experienced an extreme traumatic event”. He said the treating psychiatrist would then be required to objectively make a judgment about whether the event was extremely traumatic and then make a judgment as to whether the patient subjectively experienced the extreme traumatic event. He also agreed with the proposition put to him by Ms McDonnell, that the extreme traumatic stressor must involve direct personal experience of an event involving actual threatened death or serious injury or other threat to one’s physical integrity. It therefore followed that the risk was to the person.
39. In disagreement with Ms McDonnell’s line of questioning, Dr Epstein then went on to say that if a person did not perceive a personal risk but was told later that there was risk, that an extreme traumatic event had occurred, being the exposure to the stressors. He said the “event” was the “learning” of the event. This discussion was in support of the diagnosis that was made of the applicant of PTSD by “delayed onset”. He said that there was “very good evidence in the literature that people who are unconscious as the result of trauma still develop post-traumatic stress disorder”. However, he said that if a person was exposed to an event and learnt “about it years later and they have little response to it [it] means they clearly don’t have a post-traumatic stress disorder arising from it”. When questioned as to the necessity to “respond” to an event perceived as being threatening, Dr Epstein gave an example of a person that he knew who was involved in a bombing of Dresden in February 1945 who, when reading a book about that episode in 1998 and realising that he had been involved in a war crime, subsequently developed “all the characteristic symptoms of a post-traumatic stress disorder”. Dr Epstein said in his judgment, that person would satisfy the DSM - IV definition of PTSD because he had witnessed an event that involved death, injury or threat to his own or the physical integrity of another person and the response, which was delayed, was one of “intense horror”. Dr Epstein said that the person “must have experienced” the event in 1943 and when it was later realised that the event had been a war crime, the response of “intense horror” occurred because the person had realised that he had participated in it.
40. This theme continued by an example being put to Dr Epstein of a person who learnt at a later time that a shot had been fired at a location where they had been. It was suggested that the person could not have suffered PTSD by learning of the event later because they were not aware or did not know at the time that the shot had been fired. That is to say, the person had no perception of any risk at the time of the firing of a shot. Dr Epstein said the diagnosis would be made when it could be said what the nature of the response was upon learning of the event. Whilst acknowledging that “courts” may require persons to meet specific criteria, “the fact that they don’t meet necessarily all those criteria doesn’t mean there is nothing wrong with them, doesn’t mean they don’t have a problem”.
41. Dr Epstein agreed that “witnessing” an event involved personal observation. He said DSM - IV referred to “witnessing” involving the observation of serious injury or unnatural death of another person or particularly unexpectedly witnessing a dead body or body parts. He agreed therefore that hearing about an event of that kind would not amount to “witnessing” an event. Additionally, learning about an unexpected or violent death or serious harm or threat of death or injury experienced by a family member or other close associate, required a judgment as to the “closeness of the relationship”. Dr Epstein agreed that if a person learnt about the death or serious injury of a stranger or any person who was not a family member or close friend, the event would not qualify as an extreme traumatic event. Dr Epstein agreed that DSM - IV contained a reference to the likelihood of developing PTSD increasing as the intensity of physical proximity to the stressor increased, but said
I think it is probably worth making the point that – which I’m sure you are aware of, that in the preamble to DSM IV it makes the point this is not cook book and it is to be used with clinical judgment and that there are questions raised about its use in this sort of setting for precisely the reasons that you are asking me.
42. Dr Epstein said that other psychiatrists, in the exercise of their judgment, may interpret DSM - IV differently to him but said that he did not wish to be placed in a position where, because one particular criteria of DSM - IV had not been satisfied, it was impermissible to make the diagnosis of PTSD.
43. As to the events described by Mr Saunders in consultation, Dr Epstein said that the occasion when he “rode shotgun” either in a helicopter or on the ground in a vehicle, where he had been shot at, were events not relied on by him in making the diagnosis of PTSD. He said the applicant had reported that it did not “particularly upset him”. Additionally he said that his observation of dead Viet Cong persons on the side of the road did not constitute “an extreme traumatic event”. However, it was the opinion of Dr Epstein that the applicant, having observed photographic images of children who had been tortured – because the images depicted children with “sticks driven into their ears” – constituted an extreme traumatic stressor that he had “witnessed”. Dr Epstein said that the “event” that he “witnessed” was the image within a photograph of what was perceived to be the torture of a child.
44. As to the occasions where the applicant had reported visiting hospitals or clinics and observing children with bandaged heads – where the applicant had assumed that those children had been the victims of atrocity – Dr Epstein said that the applicant had witnessed an extreme traumatic stressor and had a response of horror. He agreed with a proposition put to him by Ms McDonnell that the applicant having made an assumption of the cause of injury to the children in those clinics, had “witnessed” them, this event constituted an extreme traumatic stressor and his response was of horror. Dr Epstein agreed that persons who are the victim of unnatural death or injury are often depicted on the media and “one sees those kinds of images almost daily in the media”. In response to a suggestion put to him that media depiction would not be an extreme traumatic event, Dr Epstein said that he did not remember ever seeing children tortured in media depiction and in his opinion, the images seen by Mr Saunders in photographs and children he saw in clinics, were extreme traumatic events.
45. Dr Epstein said that the episode described to him by Mr Saunders of learning that a person had died of burns sustained when refuelling an aircraft, was an event that he did not observe, nor did he see the body at a later time. Whilst Dr Epstein had assumed that the deceased person was a friend of the applicant, he did not regard the episode as “extreme as the experience he had with children”. He acknowledged that his report did not include any reference to the applicant having suffered any intense fear, helplessness or horror in relation to that incident.
46. Dr Epstein also said that he had a history from Mr Saunders of walking through an area that had previously been sprayed with Agent Orange but it was an episode where the applicant did not describe any reaction, nor was it understood by him to be an extreme traumatic event. Dr Epstein said that a problem he encountered with the diagnosis and with the SOPs, was that it was implicit that one particular event only – as opposed to a combination of events – can lead to PTSD symptoms. He said in his clinical experience some persons have one “cardinal” event but often there are a number of ancillary events surrounding it which of themselves may not necessarily precipitate the diagnosis, but in combination permit the diagnosis to be made.
47. Ms McDonnell returned to the diagnosis of PTSD by delayed onset. Upon the basis that the introduction to the diagnosis in DSM - IV referred to a response involving intense fear or helplessness or horror, it was suggested that the word “intense” within the definition, referred to a response that meant “extremely strong, keen or pronounced”. Dr Epstein preferred an interpretation of the word as meaning “more than ordinary response”. He said he had spoken to some of the authors of DSM - IV and learnt that it was intended to imply that the word “intense” would provoke an “emotional response”. When it was put to him that the acute symptoms of PTSD would be immediate and have a duration of less than three months, Dr Epstein said that he was attempting to explain that a response to a traumatic event does not necessarily occur at the time of the trauma or at the time that a person witnesses the trauma. He said persons sometimes need a considerable period of time “to process complex data and it may be sometime later, it could be hours later, it could be days, it can be weeks later, it can be months later before they have a response”. When it was suggested to him that the definition with respect to “delayed onset” referred to the onset of symptoms at least six months after the stressor, Dr Epstein said that his understanding of the concept of delay in response did not invalidate his interpretation. Upon his analysis of what would constitute a “response” and what would constitute “symptoms”, whilst he regarded both concepts as different, he said, the “response” is usually is the time of the onset of “symptoms”.
48. Ms McDonnell challenged Dr Epstein on this analysis by referring him to the introductory words to criteria A which she said were written in the past tense, as evidenced by the presence of the word “were” and the word “involved” in criteria A1. Dr Epstein said it did not follow on that analysis that the “event” and the “response” must occur at the same time. By way of example, he said that there were many occasions in clinical practice where he had treated adults who had been sexually abused as a child. He said the “traumatic event” was the sexual abuse but said that it was sometime later before the child – having become an adult – realised that they had been sexually abused. He said the occasion when a person learns that they had been sexually abused as a child, is the occasion when they learn that they had been taken advantage of in a predatory way and that “learning” is accompanied by a sense of shock and horror. He said that in a “clinical sense” a person in those circumstances had been exposed to a traumatic event and their response subsequently was one of horror. He said that the intervening period of years was “of no moment” if that person suffers from PTSD.
49. Dr Epstein was then taken to another part of the explanatory notes of the PTSD diagnostic criteria, where the stressor giving rise to a PTSD diagnosis must be extreme and a life threatening in nature. Dr Epstein acknowledged that description, but said that it contradicted other parts of the diagnostic features because the explanatory notes also referred to the witnessing of an event involving death, injury or threat to the physical integrity of another person. He said witnessing a threat of that type, whilst it was a stressor, was not life threatening.
50. Again by way of example of the difference of clinical experience and having to interpret the DSM - IV definition in a legal context, Dr Epstein disagreed with a dictionary definition presented to him of the word “horror” which suggested that it meant “a painful feeling of intense loathing and fear; a terrified and revolted shuddering”. Dr Epstein said that definition was “probably a little strong” and said that if a person in consultation with him said that they felt “frightened” or “helpless” or was “horrified” he would be satisfied that the person was “horrified” within the meaning of the PTSD definition, if words of that type were “used” with “some genuiness”. He acknowledged that if the “horrified” reaction was the only response to a traumatic event and there were no other symptoms the person would not have PTSD. He said that he would be looking for experience of the traumatic event and he would make the diagnosis if the person had an intense response. He said in his experience use of the word “horrified” means that the person is “significantly distressed”. It was on that interpretation of the word, that Dr Epstein thought that Mr Saunders was horrified by his description of what was depicted in photographs being children with “sticks driven into their ears”. He said that when he heard of that description from Mr Saunders it “sent a chill down my spine, it sounded horrible”.
51. In concluding the cross-examination with respect to criteria A, Dr Epstein agreed that the event where an airman was burnt to death when his helicopter was shot down, the traumatic amputation to another person’s leg in a motor vehicle accident, learning of a Defence guard being killed in a hangar when unloading a machine gun and learning of the finding of of a dismembered corpse in a body bag, by another, would not permit a diagnosis of PTSD.
52. Dr Epstein was then taken to criteria B in the PTSD definition. He said that the dreams described to him by the applicant of injured children, satisfied him that some of the parts of criteria B were satisfied. However, he said that whilst those dreams occurred once or twice a month, on the history that he obtained, he did not know any other detail about the content of the dreams. He said that the nightmares were “jumbled bits” involving “people being injured, harmed”. He said Mr Saunders could offer no more specific reference than what has been described above. Dr Epstein said that he was aware that Dr Stanley had reported that the applicant had recurring memories of traumatic scenes from Vietnam, but had also reported that he did not have nightmares. He said that he did not question Mr Saunders about the scenes that were depicted in his nightmares.
53. As to the remaining parts of criteria B, Dr Epstein said that he obtained a history from Mr Saunders of avoiding talking, reading or watching films about Vietnam and avoiding contact with service organisations. He said that type of exposure triggered responses that symbolised or resembled traumatic events from service.
54. On balance Dr Epstein said that the applicant re-experienced the traumatic event by satisfying B1 and B2.
55. With respect to criteria C, Dr Epstein agreed with the proposition put to him that criteria 1, 2 and 3 were references to persisting avoidance of stimuli associated with the trauma, whereas, criteria C 4, 5, 6 and 7 are a reference to a marked diminution of interest.
56. With respect to criteria C4 – 7, he agreed that the features existing would not have been present prior to experiencing a trauma. On the history that he obtained, Dr Epstein said that the applicant avoided activities, people and places that aroused recollection of trauma and he had no contact with service organisations. Nonetheless, Dr Epstein agreed that upon the history obtained by Dr Chadwick, it would appear that the applicant did not prefer to associate with men who would drink and upon his own history, it appeared that Mr Saunders was “solitary and had few friends”. It was also noted that Dr Stanley had obtained a similar history. It also appeared that Mr Saunders had a number of jobs prior to commencement of service and the reason given to Dr Haik by Mr Saunders for enlisting, was to avoid problems within his marriage. It was also noted upon the content of clinical notes of previous treating doctors found within the T‑documents, that Mr Saunders had been treated with Librium in 1962 (as a tranquiliser for anxiety). Dr Epstein agreed that a person who is anxious might have a marked diminution of interest or might feel detached or estranged or might have a sense of foreshortened future, as those concepts are found within C4 – 7. However, he said that he would be “less certain” that persons with anxiety would necessarily feel detachment or suffer a restricted range of affect (refer C6).
57. It was put to Dr Epstein that Mr Saunders remarried in 1978, that his wife had then described him as outgoing and stable and he subsequently established successful businesses until 1990. Dr Epstein agreed that the history recorded of the applicant becoming “increasingly isolated and depressed” by 1990, was objectively incorrect. He was then asked to consider a history taken by Dr Chadwick of Mr Saunders having an interest in local craft and a local drama group, being engaged in a choir and volunteering with the Wollongong Gallery. It was suggested this was inconsistent with the opinion he expressed of diminution of interest. Dr Epstein said it depended “on the frequency” of participation in activities of that type, however, he did agree that upon that description, Mr Saunders was not a person who was “totally isolated”. But it was not a description of a person who was “extremely gregarious”. On balance, Dr Epstein agreed that the applicant could not satisfy C4.
58. As to the criteria under C5, Dr Epstein was asked to consider histories taken by other doctors of the applicant being in an unpleasant relationship with his wife within six months of marriage, not having contact with his children for many years, being estranged from his brothers and sisters and having disagreements with family members concerning the distribution of his father’s estate. Dr Epstein agreed that all of those events occurred before the commencement of service in Vietnam. He agreed that he had obtained a history of the applicant having felt detached and estranged from other persons and “possibly” those events had “nothing whatsoever to do with Vietnam”.
59. Dr Epstein agreed that criteria C6 could not be satisfied because the applicant did have a good relationship with his current wife and he was unable therefore to demonstrate a restricted range of affect. It was noted that the applicant had been married for 27 years and the example contained within the C6 criteria of restricted range of affect, was the inability to have loving feelings. Additionally, Dr Epstein said that C7 could not be satisfied because at the present time, when the applicant suffers from the affects of motor neurone disease, he would be “impossible in his current circumstances” not to have a sense of foreshortened future.
60. The focus of attention under criteria C then returned to C1, 2 and 3. Dr Epstein said that the applicant did have the ability to recall events upon which he relied and C3 could not be satisfied.
61. On balance, Dr Epstein said that he relied on C1 and 2 and “some components of 4, 5 and 6”.
62. Attention was then directed towards criteria D. Dr Epstein agreed that the criteria within this part might be the symptoms of a person who was anxious. Additionally, he said that it might be difficult to be confident that a person did not have a history of anxiety, if those symptoms existed before trauma was experienced.
63. Dr Epstein acknowledged by his report that he had obtained a history of the applicant being diagnosed with tachycardia in January 1962 and having previously been prescribed Librium. He was then asked to consider an extensive summarised history from the clinical notes presented to him by Ms McDonnell, that referred to him attending a medical officer with a history of anxiety with respect to personal, parental and sexual problems; frequent references to palpitations and tachycardia; injections of Librium; references to trembling and sweating; worry associated with financial and domestic matters; prescription of sedative type drugs; complaints with respect to marriage; referral to a psychiatrist in August 1967 because of agitation and marital worry; insomnia, poor sleep and prescription of Mogadon. Upon that summary, Dr Epstein agreed – despite the suggestion put to him that Mr Saunders had a history of an anxiety disorder – that it was suggestive of an adjustment disorder and possibly panic attacks. Dr Epstein said that the impression he obtained from the applicant, was of difficulties experienced prior to Vietnam service having an association only with his marriage. Indeed he thought that service in Vietnam would offer the applicant a break from his “marital situation”.
64. Dr Epstein said on the history given to him by Mr Saunders, panic attacks first occurred in about 1988. He said the “impression” that he obtained from Mr Saunders was of the panic attacks then commencing because he was having difficulty coping with his business, he was irritable and had difficulty with memory and concentration, all of which contributed to his business failing. He said it was a “chicken and an egg argument” because at or about the time that he first suffered his panic attacks – believed to have been in 1988 – his wife was then severely ill, the business was starting to fail and he was approaching bankruptcy. Dr Epstein agreed that the applicant, by himself, was unable to manage the business because his wife had previously been responsible for management and he was unable to perform that work when she became unwell. He said the business also failed when it faced competition.
65. With respect to the criteria under part D, Dr Epstein said that he did not have any history of the applicant having outbursts of anger and difficulty concentrating or having poor memory when working as a picture framer in Perth in 1989 – 1990. It was acknowledged that the applicant had been diagnosed with hypothyroidism in 1976 and as such, might have had difficulty concentrating, but with Thyroxine treatment (which apparently had been undertaken), impairment of concentration would have improved. Dr Epstein also agreed that he did not have any history of the applicant being hyper vigilant or having an exaggerated startled response.
66. On balance, Dr Epstein said D1 would be satisfied because on the history that he obtained, the applicant did endure sleep disturbance, being difficulty either falling asleep or staying asleep. Additionally he said that the applicant sometimes “slept too much”. He said he also took account of the difficulty the applicant had with concentration.
67. With respect to criteria F, Dr Epstein said that the “clinically significant distress or impairment (in social or occupational or other important areas of functioning)” commenced in the late 1980’s. Dr Epstein said at about 1988, the applicant first had a series of panic attacks, he was becoming isolated and withdrawn, he was rude to customers, he was depressed and he was anxious. He said there was no impairment of relationship with his second wife nor with her children and it appeared that the applicant had re-established contact with his own children from his first marriage. Dr Epstein acknowledged that Dr Haik had obtained a history of the applicant having purchased a car from the proceeds of the distribution of his father’s estate which gave him mobility and the ability to develop friendships. He said that if the applicant was impaired it was not “to a major degree”.
68. Dr Epstein was then asked to consider the opinion expressed by other doctors. He acknowledged that “Ganser syndrome” had been suggested by Dr McCarron, but said that the diagnosis had “fallen into disrepute”. He acknowledged that Dr Stanley had initially diagnosed PTSD but had referred Mr Saunders to Dr McCarron. He thought that Dr Stanley did not understand some of the symptoms being exhibited by Mr Saunders and it was for that reason a second opinion had been sought. He said upon his interpretation of the reports of Dr Stanley and Dr McCarron it may have been that Dr Stanley had “revised his diagnosis”.
69. Dr Epstein was aware that Dr Haik had diagnosed narcissistic personality disorder but said that he had “no idea of what he is talking about. It just didn’t make any sense to me”. Dr Epstein referred to the nine elements within DSM - IV which would constitute the diagnosis of narcissistic personality disorder and said upon his examination and consultation with Mr Saunders, none had been achieved. He said that he saw nothing in Mr Saunders nor did he hear him express himself in a manner as had been described by Dr Haik. He said that a narcissistic personality disorder is a “pervasive lifelong pattern”.
70. Dr Epstein said that he had read the first report of Dr Walton who he described as an “esteemed colleague”. He agreed that Dr Walton had analysed criteria A, B, C, D, E and F of the DSM - IV diagnosis of PTSD in his report and he regarded the analysis by Dr Walton as being “methodical”. He agreed that if PTSD was not found that an appropriate diagnosis – consistent with the opinion expressed by Dr Walton – would be chronic generalised anxiety disorder.
71. In re-examination Dr Epstein said that having read the reports of Dr Stanley and Dr McCarron, PTSD could exist in association with dissociative disorder. That is to say, both conditions did not exist separately from each other.
rober haik
72. Dr Haik is a consultant psychiatrist who has practised in Sydney from 1972. He prepared a report on 8 November 2001 following the consultation with the applicant on that day. The report is found at T22, pages 238 - 250.
73. Ms McDonnell questioned Dr Haik extensively on the diagnostic features of PTSD as found within the DSM - IV definition (refer earlier).
74. Dr Haik said that in his interpretation of the diagnostic features there was an emphasis on an extreme traumatic event giving rise to the PTSD diagnosis. He said a pre-dominant diagnostic feature was of a person having experienced a threat which objectively occurred, and that the threat was perceived at the time of experiencing it. He said if a person learnt at a later time that they had previously been under threat, the PTSD definition would not be satisfied. It followed that Dr Haik disagreed with the opinion expressed by Dr Epstein in his report, that PTSD can be of late onset.
75. Additionally, Dr Haik said that the person who experienced the threat must have also witnessed it by personal observation. It followed, he said, that observing a photo or the contents of a photo did not constitute “witnessing” an event. He said that persons frequently see films or watch television or observe images in newspapers which are distressing, but the reaction to those occasions will not constitute witnessing an event that was threatening. It followed he said, that the applicant, having observed children in an orphanage with bandaged heads, would not have witnessed an event which was threatening, because the applicant would have needed to have seen injuries inflicted upon children which gave rise to bandaged heads, in order for that to meet the PTSD definition.
76. Again, by way of comment upon the report of Dr Epstein, Dr Haik said that the concept of “delayed onset” was a reference to the emergence of symptoms, not to the response of intense fear, helplessness or horror. Dr Haik acknowledged that persons could enter into a dissociative state, being a state of having “turned off” from the intensity of the helplessness, fear or horror because of an inability to cope with it. He said persons will return to an associative state by recalling the event and become symptomatic, however “the mind doesn’t store it away for ever” and the ability to “store away” the event and its intensity for many years would be rare. It therefore followed that persons must “experience” the event and perceive the threat at the time of experiencing it.
77. Additionally, and by way of further explanation of his interpretation of DSM - IV, Dr Haik said that subsequent to the experiencing, witnessing or confronting of an event which was threatening, a person must have had a response which is measured by intense fear, helplessness or horror and that person’s life becomes impaired. He said despite the words of the diagnostic criteria in Part A, it would not be sufficient for the person to suffer fear helplessness or horror. Rather, there must be affect which, in his view, was impairment.
78. On the issue of “impairment”, Dr Haik said that Mr Saunders was very “matter of fact” during consultation and had not been upset. He compared the applicant’s response as was reported by Dr Stanley at first consultation, to the response that he obtained at his consultation, and was very surprised. He reported (page 241) that the applicant had told him that he had seen photographs of children “with things in their ears”, that he had accompanied an American relief worker during rounds of hospitals, that he had observed children that were injured, abandoned or shot and had learnt of ‘first hand about mistreatment of youngsters”. Dr Haik said that had the applicant suffered PTSD, he would have thought that his response would have been in the nature of (for example) “I saw many distressing things and I was horrified”. Dr Haik said that the observations of the applicant (as measured by his description) did not seem to be important and the experiences of the applicant did not seem to unduly affect him.
79. Dr Haik reported that after he had been consulting for 55 minutes, Mr Saunders leaned backwards to collect a bag that he had been carrying and removed a sheet of plywood from it. He placed it behind his back, because he appeared to have back pain and asked Dr Haik if he could provide him with painkillers. Dr Haik said that that episode “bothered him” due to its “theatrical nature”. He said that until the request for painkillers, Mr Saunders had not complained of any distress or pain and the episode “struck” him as “not real”. He said that the behaviour could be explained if the applicant was distressed about the questioning and suffered discomfort or back pain. Or, consistent with an opinion expressed by Dr McCarron in a report of 1 December 1999, if Mr Saunders suffers from Ganser syndrome, which involves an escape from a painful experience by an unconscious, bizarre and weird reaction. Dr Haik said that persons who suffer from Ganser syndrome give “ridiculous replies to questions when they know the correct answer”. By way of example, he said that if a person with Ganser syndrome was asked the sum total of two plus two, they would give the answer as five when they were consciously aware of the correct answer. He said that Ganser syndrome is an escape from pain and Dr Stanley must have been suspicious of the presence of such a condition, because he referred Mr Saunders to Dr McCarron. He said that upon his interpretation of the report of Dr McCarron, it would appear that Dr Stanley had initially diagnosed PTSD, that Dr McCarron was engaged because of Dr Stanley’s concerns, that Dr McCarron had diagnosed the applicant as suffering from a dissociative state, that Dr Stanley had later found the applicant to be depressed without any mention of PTSD (refer report of 11 December 2000) but later agreed that the applicant suffered from a dissociative state having received the report from Dr McCarron (refer report of Dr Stanley 17 January 2001).
80. Dr Haik said that having read the report of Dr Stanley of 29 April 1999, he could well understand that PTSD was diagnosed because it appeared that consideration was only given to the history of events in service, as relayed by Mr Saunders. He said there did not appear to be any discussion or examination of impairment, or any of the other diagnostic features of the PTSD definition. Dr Haik repeated his earlier evidence that without impairment a diagnosis of PTSD is impermissible and there must be objective evidence of impairment or disablement before the diagnosis of PTSD can be made.
81. To expand on this theme, Dr Haik pointed to paragraph 2.4 of his report to demonstrate that the applicant was not impaired, that he was “matter of fact” in his responses and he could not find any response of the applicant which involved intense fear, helplessness or horror. Paragraph 2.4 is reproduced as follows:
2.4 Stresses During Service
In 1976 he spent 6 weeks in New Guinea in telecommunications. He said his work was associated with shadowing submarines. When asked if this was stressful, he said I didn’t think it was but I heard it did stress some people knowing there was a potential enemy out there. When asked who had told him that, he thought it was Dr Stanley.
In 1965 he spent 6 months in Thailand in telecommunications. The only stress he could suggest was that he was 5 miles from an exploding grenade in an RAAF compound. However he considered that this posting was a holiday camp.
From July 1969 to June 1970 he was based in Vung Tau, Vietnam, at the USAF Base and worked in telecommunications. When asked what stressors he experienced in Vietnam he said Occasional bombardment by rockets depending on the wind. However the rockets never exploded near him. He said that he once took R&R on a beach which he noticed was closed. When he returned to camp after a swim he heard that personnel there had been shot at by Vietcong and he believed that this might have been the sound which he thought were bees.
Mr Saunders said he was regarded as a good marksman when he attended target practice during National Service and the RAAF training camp. He had no subsequent target practice. However, he claimed that he was regarded as a marksman in the RAAF for which he received an additional income. Because he was a marksman he was asked to function as a helicopter machine-gunner and readily agreed. He smiled knowingly as he recalled that during the helicopter tour We were shot at. There were 2 holes in the chopper when we got back. When asked why he accepted the invitation to man the machine gun, he said For something to do. When his superior discovered this helicopter adventure, he was reprimanded and told not to do it again. When Mr Saunders was asked would he have done it again if he had been given permission, he replied that he would and when asked why, he replied I felt quite useful.
He said that prior to this helicopter experience he had made 6 journeys on convoy duty, again not being given permission to do so. He said he rode shotgun as machine-gunner on a Land Rover and had see dead bodies of Vietcong on the road. When his superior found out about the helicopter incident, Mr Saunders was prevented from all such adventures. However, Mr Saunders said he would again have run the convoys had he been allowed.
On several occasions he had heard of Vietcong harming children, and it was part of his duty typing reports of such happenings in his area. As a result, he had seen photographs of children with things in their ears. He recalled an American international relief worker allowed him to accompany him on rounds of hospitals. Again, this was not part of his job. Mr Saunders claimed he saw 3 or 4 children in a cot and that the American would give them medication. When asked what he saw, he replied They had a lot of injuries, a lot were abandoned or shot dead. He explained that he had learnt first hand about mistreatment of youngsters.
82. As to the remaining diagnostic criteria of PTSD, Dr Haik said that the applicant did not satisfy Part B because he did not re-experience any of the events in service.
83. As to Part C, Dr Haik said that he could not obtain any history of the applicant having satisfied any of the seven features of this part. He said the applicant had told him that if he were to return to Vietnam, he would undertake the same activity, that he would visit hospitals and sick children and that he did not avoid talking about the events or experiences in service. He appeared to be comfortable in his explanation of those circumstances and he had no inability to recall events (however he did acknowledge that there were variations in detail as between the histories given and obtained by other doctors).
84. Dr Haik said the applicant did not satisfy Part D because he had been irritable prior to service in Vietnam, as evident by the relationship with his former wife, and he had difficulty concentrating with respect to the business he operated in Darwin. Upon the evidence of the applicant’s second wife – who accompanied him to the interview – she having described him following remarriage in 1979 as being “a competent pianist, singer, actor, cabinet maker and photographer” (refer page 246), Dr Haik said on balance that he could not find any of the five criteria within Part D as applying to the applicant.
85. Dr Haik said that he did not consider Part E because he could not find any of the symptoms in Part B, C or D as existing.
86. Ms McDonnell took Dr Haik through the clinical notes of a number of doctors who treated the applicant before, during and after his service in Vietnam. There were many references to the applicant suffering palpitations and tachycardia within those notes. Dr Haik said that the significance of the medical history suggested that the applicant had been an anxious person in the 1960’s which, in his view, and upon learning of the contents of the clinical notes, appeared to have a relationship with problems within his first marriage. He also noted from other reports that the applicant had, on occasions, been described as a person who would panic. In his experience, there was a similarity between persons who panic and persons who are anxious. Dr Haik said that anxiety may produce symptoms similar to those found within the criteria at B, C and D of the PTSD definition. He said that a person who suffers the symptoms found within those three parts is likely also to develop symptoms of PTSD.
206. Mr Williams recorded in his statement that he did not direct staff to operate machine guns in the back of land rovers during convoys and said duties of that type would have been undertaken by Airfield Defence Guards (ADGs). In any event travel around Vung Tau and Saigon was relatively safe and he frequently travelled without an armed escort and did not come under fire. Travel between the base and the township of Vung Tau at night was also possible without serious incident. Mr Harding said that ADGs or Army Personnel manned the machine guns mounted onto vehicles and in his belief radio operators would not have manned a machine gun in a convoy. Both Mr Harding and Mr Williams both recorded in their statements that machine guns on helicopters were manned and operated by helicopter crewmen only. Mr Harding regarded it as “fanciful” that a radio operator would have undertaken that activity – because in the absence of proper training the weapon would not have been operated effectively and there would have been a risk to the helicopter and crew.
207. Mr Greenwood recorded in his statement that he agreed in large part with the statement of Mr Harding and confirmed that movement around the Vung Tau district was safe and secure. He recorded that he did not have any belief that a radio operator would be asked to man a machine gun mounted on a land rover as part of a convoy. Further, it was his opinion that RAAF procedures strictly required RAAF personnel with weapons training to be engaged in the use of a machine gun onboard a helicopter. Additionally RAAF procedure required the strict recording of crew members and passengers on all flights. He said it would have been unusual for a communications officer to deliver messages at night but does record (paragraph 12) that he was confident that persons who delivered messages after hours were not subject to enemy fire and he could not recall any episode where an RAAF vehicle was subject to gunfire. Mr Brennan in his first report of 9 November 2001 (T‑documents, page 253), reported that he could find no record in the flight logs of Mr Saunders ever being a member of a helicopter flight crew, nor could he locate any records of Mr Saunders being engaged as a shotgun escort.
208. There is no evidence that I can find from the statements lodged, or from the evidence of Mr Sounness or from other documents within the T‑documents, pointing to the presence of deceased Viet Cong persons on the side of the roadway at all or of which Mr Saunders would have observed.
209. On balance as a fact, I am not satisfied that Mr Saunders did ever travel on a helicopter as a machine gun escort. Messrs Harding, Williams and Greenwood said that they did not believe that Mr Saunders would have been engaged as a machine gun escort on a land rover because in their opinion that role would have been undertaken by an ADG. Mr Sounness recorded in his statement that he and Mr Saunders had been directed to ride shotgun on road convoys. Mr Sounness and Mr Saunders were engaged on different shifts from time to time but Mr Sounness would have been aware of Mr Saunders’ duties. I accept that there were occasions where Mr Saunders did man a machine gun on the back of a land rover. However I also accept the evidence of Messrs Harding, Williams and Greenwood that travel was relatively safe and that there was no evidence or report of any vehicle being fired upon.
210. I also accept that there were occasions when messages were delivered after hours by Mr Saunders having to leave the RAAF Base at Vung Tau. I would accept upon the evidence that those occasions would have been relatively infrequent but those occasions would have also been relatively safe because upon the evidence of Messrs Harding, Williams and Greenwood, travel was relatively secure.
211. Mr Saunders alleged there was an occasion where he heard gunfire when he was travelling in a land rover as an escort. I am not prepared to find that he was “shot at”. The sound of gunfire in a war zone is hardly surprising, but it does not permit a finding of the gunfire being directed at him.
212. Whilst I therefore find as a fact that some of the events relied upon in the first contention of Mr Saunders did as a fact occur, I am not satisfied on the evidence heard and read that those events constituted identifiable occurrences which evoked feelings of substantial distress in him.
213. The next contention of Mr Saunders was him being seconded to type reports for intelligence officers where he was exposed to photographs of tortured or mutilated children.
214. Mr Sounness recorded in his statement, and said in evidence, that Mr Saunders was regarded as being an exceptionally fast typist and was “loaned” to the “intel section” where he would have been exposed to “classified material”. Mr Sounness recorded that he recalled typing an incident involving the “murder and decapitation of a local head man, his wife and five small children and placing of their heads on poles in the middle of the village as an example not to help allied troops”. He said that incident disturbed him. He did not say whether Mr Saunders was aware of the contents of that report. Additionally he said that he did not ever see the photographs that Mr Saunders alleged but did record that Mr Saunders would have typed reports of atrocities. Mr Sounness agreed with the statement of Mr Harris that reports involving medical evacuation, situation reports and intelligence reports for transmission to Australia were routinely undertaken. He also agreed with the contents of the statement of Mr Harris that the medical evacuation reports “were the worst” because the names of persons and their injuries were recorded. He said that intelligence reports were particularly distasteful because they often recorded atrocities.
215. Mr Saunders alleged that one of the photographs observed by him depicted children with sticks or other objects inserted into their ears and which he found horrifying. He said that some of his duties allocated to him by Squadron Leader Williams. The statement obtained by the respondent from Mr Ian Williams described as a retired Wing Commander, records that he did not have any recollection of any stories involving Viet Cong torturing children by inserting sticks into their ears and could not ever recall similar “stories” circulating about the RAAF Base. It is not known whether Mr Williams, who completed the statement of 6 September 2005, is the same Squadron Leader Williams referred to by Mr Saunders. Additionally he said that he was never asked to loan technical staff to type reports.
216. Mr Harding was a member of the RAAF Intelligence Branch between 1955 and 1983. He said that the RAAF did not have an intelligence presence at the RAAF Base at Vung Tau. He said he travelled to Vung Tau on Wednesdays of every week only for that purpose. He said that he never reported atrocities committed by the Viet Cong nor had he ever heard of any reports from the Australian Army or the United States intelligence that Viet Cong had tortured children. He also recorded that he had not ever seen or knew of photographs depicting children with sticks in their ears. He said he was confident that no such reports existed and had such a report ever been made, it would have been referred to American intelligence for investigation. Additionally he said that he could not “conceive of the possibility” that a report by American intelligence would have been typed by a member of the communications centre. He denied that he ever asked communication centre staff for assistance in typing.
217. Mr Greenwood is a retired Air Commodore who was familiar with the statement of Mr Harding and said that he agreed with its contents. He said he had no recollection of ever receiving any report of enemy atrocities and said it was implausible that such reports would have ever been made by an RAAF intelligence officer. He said RAAF officers were engaged in collecting and analysing intelligence concerning targets or attacks on aircraft bases, and reports involving atrocities of children would have been made to and investigated by the Australian Army.
218. Mr Connant was present in Vietnam between March 1968 and March 1969 only and during his posting to South Vietnam reports were not made of the Viet Cong torturing children. However he did record that he had searched the “Vietnam data base” and other records and could not locate any report from any source of Viet Cong torturing children at any time.
219. Mr Brennan in his report of 2 October 2002, records at page four that he had made contact with “a former RAAF radio officer” (who he did not identify) and was provided with information of the duties undertaken by communications officers. He said that the information he had received indicated that a communications officer, if an appropriate security clearance had been held, could have been involved in the handling of classified messages in a secured area. Additionally he said that the information obtained, indicated that communication officers were competent keyboard operators and their responsibilities concerned the operation of communication equipment. Their duties did not extend to typing up reports which referred to photographs or which had photographs annexed. From the persons he contacted he was unable to locate any information confirming the existence of photographs of tortured children.
220. On balance I am satisfied that Mr Saunders was regarded as a competent fast typist who, consistent with the evidence of Mr Sounness and the contents of the statements of Mr Harris and Mr Snedden, would have routinely been exposed to typing reports in the nature of medical evacuation which would have contained information concerning the identity of persons and their injuries. I accept that work would have been unpleasant and on occasions distressing. Mr Sounness referred to a report that he typed involving atrocities of persons in a local village but he did not ever view the photographs alleged by Mr Saunders or ever read or view the reports alleged by Mr Saunders as having been typed for the “intel” section.
221. Mr Sounness did record in his statement that he was aware that Mr Saunders was “loaned” to the “intel” section because he was a fast typist and in that section Mr Saunders did type intelligence reports.
222. Mr Harding, Mr Williams and Mr Greenwood all denied that Mr Saunders would have been asked to type intelligence reports. However Mr Saunders recorded in his statement that the Commanding Officers did not supervise his work and his duties were allocated by other radio officers. On balance I am inclined to accept and find on the balance of probabilities that there were occasions when Mr Saunders, because of his proficiency as a typist, would have been seconded to perform other duties which may not have been known to Messrs Williams and Greenwood and particularly Mr Harding who only attended the base on one day per week. But nothing is known from Mr Saunders about the contents of the intelligence reports that he typed. If they were in the nature of the report referred to by Mr Sounness, I could readily imagine that he would be distressed and upset but there is no evidence that he did type reports of that type. In his statement reproduced earlier in these reasons, Mr Saunders does not identify the contents of the intelligence reports that he typed. I do not find as a fact that Mr Saunders did observe a photograph of children with sticks in their ears as he alleged and I accept the evidence of the other witnesses that no such photographs existed of tortured children. I accept that type of report or an accompanied photograph would have been the subject of an investigation but probably by the Australian Army or United States officers because the RAAF was concerned with intelligence as to flight operations only. As indicated earlier I accept that Mr Saunders would have routinely been engaged in the typing of reports involving medical evacuation but on balance I am not satisfied on the evidence heard and read that the typing of those reports or the typing of the intelligence reports from time to time, constituted identifiable occurrences which evoked feelings of substantial distress in him.
223. The third contention of Mr Saunders was of him attending medical facilities in Saigon in the company of a civilian from the United States Peace Corps where he visited a number of orphanages and observed children who had been badly injured, predominantly with head injuries.
224. Mr Sounness said in evidence that Mr Saunders had an interest in photography and attended clinics and orphanages to take photographs of injured children in an attempt to raise sponsorship for those orphanages or clinics. He said that he did not ever see those injured children nor did he ever attend or visit those clinics.
225. Mr Grannall recorded in his statement that he did not ever visit hospitals or civilian clinics in Vung Tau, Saigon or elsewhere, but did regularly attend an orphanage at An Phong in Vung Tau. He said that he could not ever remember observing children with bandages at the An Phong orphanage but acknowledged that there might have been a child present from time to time with bandages applied by way of treatment for an injury. He said children at the orphanages had not been the victims of torture. Additionally he said that he did not ever take photographs of children for any purpose but did acknowledge that photographs were taken by persons from time to time “for their own purposes”.
226. Mr Greenwood recorded in his statement that the RAAF and the Australian Army sponsored an orphanage at An Phong. Additionally he said that members of the United States Peace Corps were not present in Vung Tau or in Vietnam. He said that he had privately searched the web site of Peace Corps which recorded that since its founding in 1961, its members had not ever visited Vietnam. He said that it would be inconsistent with its objectives for members to attend Vietnam where its Government was engaged in war because its role was to provide volunteer work “in the cause of peace”.
227. I accept the evidence of Mr Greenwood and regard it as being implausible that members of the United States Peace Corps would have been present in Vietnam and in those circumstances they could not have accompanied or escorted Mr Saunders as alleged. If Mr Saunders did attend a clinic and if he did observe injured children, it is unlikely that it would constitute a “severe psychosocial stressor”, nor would the observation be of the genus of the examples given in the definition at paragraph 8 of the generalised anxiety disorder instrument.
228. The fourth contention of Mr Saunders related to him knowing of a “soldier” who died as a result of burns whilst refuelling an aircraft at Vung Tau. Mr Saunders could not recall the name of the person. He said he learnt of that catastrophe when his “name came up requesting permission to transport him to Manilla”. Mr Saunders said he found the experience of transmitting messages requesting transfer to be upsetting and he felt helpless.
229. Mr Sounness referred to an incident where a helicopter was shot down and the pilot was killed. In evidence-in-chief he said that he had no recollection of a pilot being killed by burns in a refuelling episode but later said that he could recall an episode where there was a refuelling incident but he could not recall if a person was killed or injured. He could not recall that person’s name.
230. Mr Connant said from his research, he could find no record of a person being burnt and killed in a refuelling episode as alleged. The only episode that he could identify was a crash of a helicopter on 20 July 1970, where a pilot by the name of McNair was killed. That information is also contained in the first report of Mr Brennan at page 255 of the T‑documents.
231. Mr Brennan in his first report confirms that following the crash, Mr McNair initially survived but sustained extensive burns. He was initially treated at the 1st Australian Field Hospital at Vung Tau and it was intended to transfer him to the United States Air Force Base in the Philippines with the subsequent intention to transfer him to a specialist hospital in Texas. Apparently it was intended to stabilise Mr McNair’s injuries before transfer. It is believed that a number of communications would have been transmitted to and from the Vung Tau Air Base in anticipation of the transfer. However, some days after the crash, Mr McNair died. Perhaps it was these communications that Mr Saunders referred to and perhaps he had some role in these communications. However, Mr Brennan confirms that the communications would have been at the initiation of medical officers and would not have been in the nature of seeking permission to transfer, but rather would have been in the nature of making arrangements to transfer when Mr McNair became stable.
232. If these were the communications that Mr Saunders referred to, and if he was responsible for those communications, I would acknowledge that he may have found them upsetting, but it would appear from the evidence of Mr Sounness there was an absence of any “proximity” of relationship between Mr Saunders and the pilot. At best, they may have shared a drink together in the mess and shared quarters, but the pilot was not a member of the communications staff. Additionally, the crash occurred two months after Mr Saunders commenced his service in Vietnam and there is no evidence that he knew Mr McNair prior to operational service. On what is known, and even making allowances for the assumptions referred to above, I could not find on the evidence heard and read that those events constituted identifiable occurrences which evoked feelings of substantial distress in him.
233. The fifth episode contended by Mr Saunders was being present at a swimming beach near Vung Tau where it was strafed by persons on an off-shore fishing boat. He said that he had been swimming at the time and feared that he might be shot. He said the beach was subsequently closed.
234. Mr Harding recorded in his statement that the back beach which formed part of the Army base at Vung Tau was regarded as being safe and was used by service personnel for rest and recreation. I can find no reference to that event from the T‑documents, nor is it referred to in the statements of the other witnesses. I would have thought that if a facility used for rest and recreation by Australian military personnel had been strafed from an off-shore vessel, it would have been the subject of a response and a subsequent report. That the incident is apparently not documented indicates to me that the incident did not occur. This would have been an event where it could be said, with some confidence, that a report would have been made. This episode as alleged did not involve a single unidentified shot or the sound of the same, but rather a strafing from an identified source. As a fact I am satisfied that no such incident did occur.
235. The last incident relied upon by Mr Saunders was of being grabbed by two United States Military Police Officers and being pushed into a car in an apparent attempt to avoid being the subject of a mugging. The location of that event is not identified. There is no reference to that episode in any report nor is it the subject of the statements of any other witness. As a fact I am not prepared to find that the episode occurred. In the alternative, if it did, it would appear that it did not amount to an identifiable occurrence that evoked a feeling of substantial distress as he did not report the incident to any of the doctors or RAAF personnel.
236. In his statement Mr Saunders referred to the above six episodes as being responsible for his “psychiatric condition”. However, Mr Sounness referred to five other episodes in service to which both he and Mr Saunders were exposed namely:
(a)An airman who shared quarters at RAAF at Vung Tau was burnt to death when his helicopter was shot down. This appears to be the incident involving Mr McNair referred to earlier.
(b)A staff member of the communications centre suffered a traumatic amputation of his leg in a convoy accident.
(c)An ADG was killed when a machine gun accidentally discharged whilst it was being unloaded from a helicopter.
(d)A dismembered corpse was erroneously delivered in a sealed bag to the communications centre when it should have been delivered to an adjacent hospital.
(e)A number of incidents where shots were fired into the RAAF base including the discharge of a grenade being thrown over the perimeter fence and a “volley of shots from an automatic weapon”. Additionally there were a number of rocket attacks on the air field. The latter episode was the subject of enquiry by Mr Connant and Mr Brennan. They both refer to the discharge of two 107mm rockets into the RAAF compound at Vung Tau but without loss of life or damage. Mr Connant said that episode occurred on 24 November 1970 and Mr Brennan said the episode occurred on 29 November 1970. I assume that one or the other has made a typing error but I also assume that both are referring to the same event.
237. If Mr Saunders had knowledge of these events they have not been referred to in his statement. I cannot find that even if he knew of them, they evoked feelings of substantial distress.
238. The SOP with respect to generalised anxiety disorder was the subject of detailed analysis by Spender J in White v Repatriation Commission [2004] FCA 633 (White). At paragraphs 28 – 32, His Honour decided as follows:
28 The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are "examples of what is meant by ‘substantial distress’". In my opinion, the ordinary language of the definition makes it clear that the examples given are of the "identifiable occurrences" contemplated, not of "substantial distress". The examples are of "occurrences", not emotions.
29 The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor".
30 In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
31 The Tribunal determined that the events relied on did not meet the objective requirements of an identifiable occurrence contemplated by the definition of "severe psychosocial stressor". Since both elements of the definition were necessary for there to be a severe psychosocial stressor, the Tribunal concluded that there was no "severe psychosocial stressor".
32 In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading.
239. Of the events I have found on the probabilities that did occur, I am satisfied that those events, viewed objectively, did not evoke subjective feelings of substantial distress. It follows therefore that the applicant did not experience a “severe psychosocial stressor” within the meaning of paragraph 5 of the applicable Instrument. In making this and the earlier findings, I have been mindful of His Honour’s analysis in White.
240. Whilst I am satisfied that the applicant does suffer from generalised anxiety disorder, I am not satisfied that it has a relationship to service. There is much to suggest from the evidence in these proceedings, that it probably pre-existed enlistment and has continued after discharge, as evidenced by the extensive medical history summarised and produced by the respondent. Accordingly, I am satisfied beyond reasonable doubt that that condition is not war-caused.
241. The decision under review will be varied to the extent that in substitution for the conditions of “depressive disorder” and “personality disorder” as found by the VRB, I would substitute the diagnosis of generalised anxiety disorder.
242. I am otherwise satisfied that generalised anxiety disorder was not war-caused and the remaining part of the decision under review is otherwise affirmed.
I certify that the 242 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
AssociateDates of Hearing 19 and 20 July, 25 July, and 12 September 2005
Date of Decision 24 October 2005
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Ms J McDonnell
Solicitor for the Respondent Australian Government Solicitor
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