Schmidt and Repatriation Commission
[2004] AATA 402
•22 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/974
VETERANS' APPEALS DIVISION ) Re JAN SCHMIDT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date22 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – entitlement – PTSD, alcohol dependence or alcohol abuse and psoriasis – meaning of “experiencing a severe stressor” – meaning of “threat” – Tribunal satisfied beyond reasonable doubt applicant did not experience severe stressor
Veterans’ Entitlements Act 1986 ss 9, 120
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Woodward v Repatriation Commission [2003] FCACF 160
Repatriation Commission v Stoddart [2003] FCACC 300REASONS FOR DECISION
22 April 2004 Mr O Rinaudo, Member Decision under review
1. The applicant Jan Hendrik Schmidt seeks review of a decision of the Repatriation Commission made on the 7 February 2002 that post traumatic stress disorder, alcohol dependence or alcohol abuse and psoriasis are not war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986. This decision was affirmed by the Veterans’ Review Board on the 13 August 2002.
History
2. The applicant was born on 14 December 1947. The applicant enlisted in the Royal Australian Airforce on 8 February 1965 and was discharged on 3 November 1983. The applicant had operational service at Ubon, Thailand, from the 14 July 1966 to 8 September 1966. The applicant also has defence service from the 7 December 1972 to 3 November 1983. The applicant has the following excepted service-related conditions:
· Sensori-Neural Hearing Loss of the right ear with Tinnitus
· Post Traumatic Stress Disorder – treatment only
3. The applicant has the following non-service related disabilities:
· Post Traumatic Stress Disorder
· Psoriasis
· Alcohol Dependence
The Hearing
4. At the hearing of this application the applicant gave evidence. The “T” Documents were admitted in evidence as Exhibit 1, as well as the following material:
Exhibit 2 Statement of Jan Hendrik Schmidt
Exhibit 3 Report of Dr Michael Likely dated 5 June 2003
Exhibit 4 Report of Dr John Rogers dated 28 August 2003
Exhibit 5 Report of Dr Peter Mulholland dated 3 July 2003
5. Mr Schmidt told the Tribunal he was 18 years old when he served in Ubon. He said that he served as a General Hand and as an Airfield Defence Guard. He said his shift would start at 7.00 at night for 12 hours. He said he knew there was a possibility of attack from insurgence.
6. He described the following incidents involving a Thai Guard. The applicant said that usually the Australian and Thai Guards would get together about 4 pm to exchange passwords and to become familiar with each other so that if their paths crossed during the evening the Guards would recognise each other.
7. On this occasion the applicant said that he was patrolling along the fence which separated a fuel dump from the Australian compound. It was dark, the applicant was armed. The applicant then felt something sharp pointing into his back. The applicant says that he initially felt panic. He was then directed into a building. After a short time his ID was checked and some other Australians came to collect him. He said that he thought Sergeant Magill was one of these.
8. The applicant said that initially he did not know who had stuck their bayonet in his back. However, he realised after a time that it was the Thai Guard. Although the applicant had given a password, the Thai Guard did not appear to accept it. The applicant said he was scared and feared for his safety. He said he had been told that “Thais do not mess about and that they would shoot” and that it was best to do what they say. The applicant said that after the incident he became hyper-vigilant and carried his gun at the ready position. He also preferred to patrol on the operational side of the base where Thais were not patrolling.
9. The second incident involved the applicant obtaining a licence for a pushbike. The applicant said that he was told that he needed to obtain a pushbike licence. He rode to the local Police Station. Upon arrival he indicated that he was looking for a licence. The Police did not appear to understand what he was saying and pushed him into a room and locked the door. The applicant came to realise that he was in a cell. He says he was in this cell for 4 or 5 hours and he recalls shouting and yelling out. The applicant said that he did not know what was going on or what would happen to him. He said he recalled that after about 4 or 5 hours some Australian troops arrived and took him back to the base in a jeep. However, he said that he was given a licence to drive the pushbike before he left the station.
10. The applicant said he recalled being very angry about being locked up. He said that he had only been in Ubon for about 3 months when this incident occurred. He says he did not leave the base after this incident.
11. The third incident related to a Red Alert. He recalls that the Red Alert occurred in the evening. He says US Forces put up red flares around the perimeter. He said that the troops had been told that during a Red Alert there was a possibility of an imminent attack. Mr Schmidt said he was told by Sergeant Magill to stay with him as he was the youngest in the unit. He says he had his rifle with him. He said he removed the first rubber bullet from the chamber so that his first round was a live round. He said that they were ordered not to shoot unless there was an order to fire. He said he recalls being at a high state of alert and that he was scared. He said, “I was 18 years of age”. He recalls one of the other personnel firing a bullet into the jungle as he thought he saw something. He said he was quite frightened at that stage.
12. Mr Schmidt said he recalled that they were standing under a large spotlight. He and Sergeant Magill considered shooting out the light but instead moved away from it. They continued to guard the gate. Mr Schmidt said he could see flares being dropped around the perimeter of the airbase and he believed they were being dropped by US Forces.
13. Mr Schmidt said he recalls being on duty on this occasion for 48 hours which was the period of the Red Alert. He says he cannot recall that he slept during this time.
14. He says he has dreams about this event and in particular the shot being fired and standing under the light. He says that:
“in my dreams I am running away but before I am caught I wake up. I don’t know who is chasing me. Sometimes I am riding a pushbike and it’s the same dream, I am running away but I wake up before I am caught.”
15. In cross examination Mr Schmidt was asked to comment on the statement made by him at folio 4 of the “T” documents which said that “due to my active service in Ubon 1966 being subjected to rocket and mortar attacks”. Mr Schmidt replied that this was happening on the US Base about a kilometre away. Mr Schmidt was asked why he had not mentioned the Red Alerts to Dr Rogers when he saw him as reported at folio 23 of the “T” documents. Mr Schmidt said that he did not tell Dr Rogers about the Red Alerts because of the Secrecy Act.
16. Mr Schmidt was asked to respond to the comment by Sergeant Magill at folio 115 of the “T” documents that quotes “during the red alert, no specific orders on retaliation were given by seniors. I recall instructing my men not to fire unless being attacked or observing any ‘life threatening’ actions from insurgents approaching the razor wire boundary”. Mr Schmidt replied that when he was told to shoot he shot. He said they did not see any “insurgents”. He was aware, however, of the Viet Cong informer who was killed by Thai authorities.
17. When asked why the evidence he gave to the Veterans’ Review Board was different from the statements he made to Dr Rogers about his alcohol intake as set out in paragraph 23 of folio A13 of the “T” documents, Mr Schmidt replied that he had scotch in Ubon and regarded this to be heavy drinking to him. Again Mr Schmidt was asked in cross-examination why he had not mentioned the Red Alerts to Dr Likely. Mr Schmidt responded that it was something he was not prepared to talk about. He said that after a heart attack he had been left a little blank in the mind.
18. When he was asked about the comment in paragraph 2 of his statement at Exhibit 2 that he saw flares in the distance and was asked how far these were away from where he was standing, Mr Schmidt replied that they were at the end of the airstrip around the perimeter of the base, possibly 400 to 500 meters away. In re-examination Mr Schmidt confirmed that the incidents described by him were scary. He said he was 18 and it was the first time he had ever been overseas. He said he had only seen Dr Likely once. He said the incident was in his statement at page M of Exhibit 1, which was his statement to the VRB in April of 2002.
19. Mr Schmidt said he had been telling Dr Rogers more and more as time went by. He said that Dr Rogers was aware of the Red Alerts by June 2003. He confirmed that he had been drinking scotch whilst he was in Ubon. He said he had a scotch when he wanted to but he did not keep a log. He said in relation to the flares it was night-time and that it was difficult to judge distance but that he considered they were dropped on the perimeter of the base.
Legislative Framework
· Operational Service
20. Section 9 of the Act details the circumstances in which a veteran’s injuries may be taken to be war-caused. Section 9 provides:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
21. Section 120 of the Act sets out the standard of proof required and provides as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
22. The Statement of Principles relevant to this application are:
·Post Traumatic Stress Disorder Instrument No 3 of 1999 as amended by Instrument No 54 of 1999;
·Alcohol Abuse - Instrument No 76 of 1998; and
·Psoriasis - Instrument No 56 of 2002.
Submissions
23. Mr D Honchin, Counsel for the applicant, submitted that the Tribunal would be satisfied that the applicant was suffering from Post Traumatic Stress Disorder, Alcohol Abuse and Psoriasis. Also that the Tribunal would be satisfied that the relevant SoPs were met and that a reasonable hypothesis connecting war service with the conditions was made out. Mr Honchin submitted that the Tribunal would note that the applicant was 18 when he went to Ubon and spent 10 weeks there. It was some 36 years ago and the applicant’s memory was not exact.
24. Mr Williams, Departmental Advocate representing the respondent, confirmed that Dr Mulholland agreed with the diagnosis of PTSD and Dr Reid supported the psoriasis diagnosis. Counsel for the applicant said there were 3 events which met the test of severe stressor and these included the applicant being given a gun and helmet and told to stand guard duty with limited training; when the applicant was arrested in a foreign war zone; and the Red Alerts where the applicant experienced fear and stood behind his sergeant for safety. It should also be noted that somebody fired a round on this occasion.
25. Mr Honchin referred the Tribunal to the statement of Mr Magill at folio A17/18 of Exhibit 1 and, particularly, the comment that:
§ “I personally ordered AC Schmidt to ‘take out the perimeter lights which were illuminating our position’; in the event of incoming hostility fire.”
§ “Marched off at bayonet point by an over anxious Thai RTAF member to their area. Later after confirmation of ID released by a Thai officer to return to duty.”
§ “After being interned for failing to hold a ‘pushbike licence’ I recall at a cost of 200 baht (A$10) or so a ‘SERIOUS’ offence by Thai standards.”
confirmed the events as described by the applicant. Mr Honchin also pointed to the comment of Dr Rogers that –
“It is very clear when reviewing his history from the Ubon period that his PTSD symptoms and alcohol dependence arose at the time out of the same stressors. As indicated above I can not be precise about the date but very soon into his period of service in Ubon there was evidence of dependence. It is certainly my view that his alcohol dependence arises out of these stressors and associated PTSD”.
26. Mr Honchin referred to the steps required to be undertaken by the Tribunal in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 and also referred the Tribunal to the decision of Stoddart v Repatriation Commission [2003] FCA 334.
27. Mr Honchin submitted there was no evidence before the Tribunal upon which the Tribunal could be satisfied beyond reasonable doubt that the applicant’s condition was not war-caused. He urged the Tribunal to find that the conditions were war-caused and to remit the matter to the respondent for assessment at 100% of the general rate of pension.
28. Mr Williams acknowledged that whilst the incidents referred to by the applicant might be regarded as stressful, they did not meet the test required in the Statement of Principles of experiencing a severe stressor. He submitted that it was difficult to believe the applicant’s story about the Thai guard because it was more likely than not that the guard would recognise an Australian uniform.
29. In respect of the bike incident, Mr Williams submitted that the applicant’s reaction was more in the nature of a tantrum saying, “hey I am here to fight for you blokes” and accordingly could not meet the test. In respect of the Red Alert the applicant says that whilst the report of Wrightway Research Service acknowledged that a Red Alert did take place there was no real threat.
30. Mr Williams argued that this case was different from the facts situation of Stoddart. He submitted that if the applicant were successful the date of effect was 27 March 2001.
Discussion and Decision
31. The first consideration for the Tribunal is to determine the diagnosis. This must be determined to the reasonable satisfaction of the Tribunal (section 120(4) of the Act). The Tribunal is satisfied on the medical evidence available and particularly that of Dr Mulholland that the applicant is suffering from post traumatic stress disorder and alcohol abuse/dependence. Dr Mulholland says:
“30. OPINION
30.1 The clinical picture that this man describes is consistent with long term chronic alcohol abuse/dependence and chronic PTSD. I regard his alcoholism as clinically being the more important problem. One can easily become buried in the chicken and the egg type arguments in terms of which came first – the PTSD or the alcoholism – however I think the situation in this case is that his history is consistent with the development of alcoholism from his late teens and from when he served in Ubon and has gradually become worse over the years. Likewise he has a history which is consistent with developing features of PTSD at the time and then these gradually becoming worse over the years.
30.2 As far as I am concerned there appears to be little doubt that this veteran suffers from long term alcohol abuse/dependence. Assuming his history to be correct or substantially correct then this began during the time of his service in Ubon and continued gradually becoming worse over the years.”
32. Dr Reid at T11/12 notes as follows with respect to the applicants claim for psoriasis quotes:
“Summary: Minimal facial Psoriasis now in remission with residual patches on elbows, knees and toes; painful left knee presumed due to psoriatic arthropathy. Severe excoriation scarring from habitual excoriation mainly legs and, to a lesser extent, the arms. Neither of these problems could be related as such to Military Service other than through stress aggravation. Mr Schmidt describes himself as a very nervous person and this has been discussed with the Department’s Psychologist.”
33. Accordingly, the Tribunal is satisfied that the applicant is suffering from post traumatic disorder, alcohol abuse and psoriasis. It is now necessary to consider causation.
34. In considering causation it is necessary to follow the steps as set out in the decision of Repatriation Commission v Deledio (1998) 49 ALD 193 where the Court determined that the four stages that must be followed in considering whether there is a connection between war service and a disease or injury are as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
35. In respect of the first step, the Tribunal is satisfied based on all of the material before it that there is an hypothesis connecting the injury and disease of the applicant to the circumstances of the particular service rendered by the person.
36. The next step is to determine whether there are Statement of Principles in force with respect to the injury or disease. In this case the SoPs do exist as follows:-
·Post Traumatic Disorder - Instrument No 3 of 1999 as amended by Instrument No 54 of 1999;
·Alcohol Abuse - Instrument No 76 of 1998; and
·Psoriasis - Instrument No 56 of 2002.
37. Now moving to step 3 then of the Deledio steps, the Tribunal must now consider whether the hypothesis is a reasonable one. In considering step 3 the Tribunal notes the explanation of Finn J as to the proper operation of step 3 in Harris v Repatriation Commission (2000) 31 AAR 270 at 282:
“It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’.”
38. In Arnott v Repatriation Commission(2001) 32 AAR 445 at 452-453 the Full Federal Court, at paragraph 27, said:
“However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the ‘particular claim’ fits the ‘template’ laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.”
39. The Tribunal will only be so satisfied if the hypothesis raised contains one or more of the factors which the Authority has determined to be the minimum which must exist and be related to the person’s service.
40. The applicant submits that those factors are in respect of post traumatic stress disorder. Factor 5(a) requires the applicant to have experienced a severe stressor prior to the clinical onset of post traumatic stress disorder or alcohol dependence or alcohol abuse. Factor 5(a) requires the applicant to be suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. Factor 5(b) requires that the applicant have experienced a severe stressor within the 2 years immediately before the clinical onset of alcohol dependence or alcohol abuse, and in respect of psoriasis the factor relied on is factor 5(a) which requires that the applicant be suffering a skin injury to the effected site within the 30 days immediately before the clinical onset of psoriasis. Psoriasis therefore will not arise as a war-caused injury if post traumatic stress disorder is not accepted and vice-versa.
41. In this case the applicant points to three incidents as set out above which occurred during operational service in Ubon. The applicant argues that these incidents evoked feelings of fear, helplessness or horror and involved actual threat of death or serious injury and that therefore the applicant experienced a number of severe stressors as defined by the relevant SoPs.
42. The Tribunal is satisfied that the material before it points to the hypothesis being consistent with the template found in the SoP and accordingly must be regarded as reasonable.
43. It is now necessary to consider the evidence to determine if the Tribunal is satisfied beyond reasonable doubt that the applicant’s injuries were not war-caused in accordance with step four.
44. The definition of experiencing a severe stressor in respect of post traumatic stress disorder is defined as follows:
“‘Experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.”
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
and the definition for alcohol abuse is as follows:
“‘Experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
45. In considering this issue the Tribunal has had regard to the principles set out in the following cases.
46. In Stoddart v Repatriation Commission [2003] FCA 334, his Honour Justice Mansfield held:
“...the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
47. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
48. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by his Honour Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J namely:
“an indication of probable evil to come; something that gives indication of causing evil or harm”
and furthermore stated that the description of “a risk of death”
“can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
49. Also significant is the Full Court’s observation in addressing what can be described as routine normal service duties –
“that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.”
50. So, bearing these principles in mind, has the applicant experienced a severe stressor in this case such that he meets the required definition in the relevant Statement of Principles.
51. In respect of the first incident the Wrightway Research Report says in conclusion at paragraph 16 on folio 36 of Exhibit 1 that:
“Based on the information assembled in this Report, and in the accompanying Enclosures and attachments, it is the Researcher’s finding that there is no evidence in official records to substantiate the traumatic episode being claimed by the Veteran. The Veteran’s unit OC at UBON in 1966 (GPCAPT Cedric Thompson) has also advised that he has no knowledge of such a security incidence involving RAAF Airmen being taken hostage and threatened by Thai guards at Ubon in 1966.”
52. A further report is made by Wrightway Research at folio 79 of the “T” documents, paragraph 8, where it is stated:
“GPCAPT Thomas stated that life at UBON was quite mundane. There was no perceived threat to speak of, and the camp life was centered on social, sporting and recreational activities (such as open air movies every evening, weather permitting). Against this background GPCAPT Thomas believes that had the security incident now cited by the Veteran occurred at UBON it would have represented the first and only such occurrence, and would have been widely debated amongst the camp population. GPCAPT Thomas has also consulted the former Chief Clerk (Warrant Officer) of the RAAF Contingent UBON (Base Squadron) who also has a good recall of events at UBON, but he also has no knowledge of the notifiable security incident being claimed by ex Warrant Officer Jan Schmidt.”
53. In respect of the Red Alert, the report at page 43 of the “T” documents notes as follows:
“There is only one recorded ‘RED ALERT’ at the UBON air base, and this security ‘incident’ occurred at 2200 hrs on 24 Jul 65 when the entire UBON air base was placed on full alert after an ‘unidentified aircraft’ had been sighted on radar about five miles north of the base. A US Air Force flare ship dropped flares in the immediate area and USAF Phantom fighter-bombers were scrambled without any result. This ‘RED ALERT’ state was reduced to ‘AMBER ALERT’ after the USAF air activity had concluded; but as a matter of precaution the UBON camp was closed (with no local leave) and personal weapons and steel helmets were issued. There is no record in the RAAF Base Squadron’s records that shows just how long the UBON air base remained in the ‘AMBER’ state of alert (most likely no more than 48 hours). There were many other false ‘alerts’ at the airbase reported by the RAAF Contingent UBON of radar sightings that were later determined to have been the product of meteorological phenomenon due to rapid movement of pockets of supersaturated air.”
54. This is in contrast to the evidence given by Squadron Leader Helman in a letter written “To Whom It May Concern” and in particular the paragraph on the second page which states:
“I also recall that during my time in country, we were placed on ‘Red Alert’ on at least three occasions. This resulted in a general ‘Stand To’ (threat of attack imminent). LAC Schmidt joined our group in June 1966 and was present during at least one of the ‘Stand To’ situations. On each occasions, this resulted in our group having to complete extended shifts in the bunkers located in close proximity to the Sabre aircraft. As a result of the threat, I personally developed an extreme state of anxiety with expectation of death or serious injury. While not being able to speak on behalf of the other members of the group: I believe that most of them also developed some problems. I would think that Hank Schmidt would have been one of these people, considering his youth at the time, (I think he may have been one of the youngest member of our group). To compound the situation, the bunkers were renowned havens for snakes. Further, at the time, our attachment was ‘open-ended’ (no fixed date of return to Australia). This was also a most worrying situation, as without exception, all other members attached to Ubon had a cease by date and could plan on going home.”
55. Dr Mulholland makes the following comments with respect to the stressors which the applicant says he experienced:
“30.3 The difficult question is the one as to whether he experienced a ‘severe stressor’ as defined. The proposition that he experienced a severe stressor in Ubon could be argued both ways. The same comments could be made in respect of PTSD. Speaking as a psychiatrist I can say that he experienced stressors in relation to his service in Ubon however I consider it is ultimately up to the AAT to determine whether these matters constituted a severe stressor or not. Note that inevitably attention becomes focused on specific incidents as being causative factors of PTSD and it is appropriate that such attention be placed however it is considered that issues of long term anxiety-apprehensiveness-hyper-arousal are just as important as specific one-off incidents. Unfortunately if this chronic anxiety is self-medicated with excessive intake of alcohol as appears to have been the case with this veteran and perhaps others at Ubon then this makes the whole situation worse as alcohol is only a temporary anxiolytic and makes an underlying anxiety state worse rather than better in the long run.”
56. The Tribunal accepts the evidence as set out in the Writeway Research Report and of GPCAPT Thomas. In the Tribunal’s view the incidents with the guard and the push-bike may have raised in the applicant feelings of anger and frustration. The applicant may have even felt trepidation. However, the Tribunal does not accept that the applicant felt in fear for his life or of injury, as required by the definition of experiencing a severe stressor as set out in the relevant SoPs. Whilst the applicant may have subjectively experienced some fear, objectively there does not, on the evidence before the Tribunal, appear to be any objective suggestion that the applicant was in any real danger.
57. As to the Red Alert incident the Tribunal is satisfied on the evidence that the incident did not occur as described by the applicant. The Tribunal is satisfied on the evidence that the applicant did not fear for his life or safety as required by the definition of experiencing a severe stressor as required by the relevant SoPs during this incident. The evidence relied on by the Tribunal is that such events were rare and in any event there was no objective threat to the base or to personnel.
58. In this case the Tribunal is therefore not persuaded that any of the events described by the applicant were of such a nature as to raise feelings of actual or threat of death or serious injury to the applicant. The Tribunal finds the applicant did not experience severe stressors as defined in the relevant SoPs and does not satisfy the relevant factors as set out above.
59. Accordingly, as far as operational service is concerned the Tribunal is satisfied beyond reasonable doubt that the applicant did not experience a severe stressor in terms of the relevant SoPs and therefore determines that the hypothesis of the applicant is not reasonable. Therefore, the claim must fail.
60. Accordingly the Tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 25 November 2003
Date of Decision 22 April 2004Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor
For the Respondent Mr B Williams, Departmental Advocate
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