Simos and Repatriation Commission
[2014] AATA 110
•28 February 2014
[2014] AATA 110
Division VETERANS' APPEALS DIVISION File Number
2010/0105
Re
Russell Simos
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan
Date 28 February 2014 Place Melbourne The Tribunal affirms the decision under review.
...........[sgd].............................................. ...............
Miss E A Shanahan
VETERANS’ AFFAIRS – disability pension claim – operational service – generalised anxiety disorder – hypertension – atrial fibrillation – complex hypothesis – asthma – severity of stressors experienced – exposure to multiple stressors post-service – reasonable hypotheses – reliability of evidence – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Border v Repatriation Commission No 2 (2010) FCA 1430
Bull v Repatriation Commission (2001) FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Delahunty v Repatriation Commission (2004) 38 AAR 511
Forrester v Repatriation Commission (2013) FCA 898
McKenna v Repatriation Commission (1999) 29 AAR 70
Meehan v Repatriation Commission (2001) 64 ALD 345
Repatriation Commission v Deledio (1998) 49 ALD 193
Simos v Repatriation Commission (2013) FCA 607 (20 June 2013)
Stoddard v Repatriation Commission (2003) FCA 334
Re Russell Simos and Repatriation Commission [2011] AATA 537
Woodward v Repatriation Commission (2003) 200 ALR 332
Re White v Repatriation Commission [2004] FCA 633, [2003] AATA 942
Secondary Materials
Statement of Principles Instrument No 101 of 2007 – Anxiety Disorder
REASONS FOR DECISION
Miss E A Shanahan
28 February 2014
The history of the application
Mr Simos initially applied for a disability pension claiming that the medical conditions of anxiety disorder, depressive disorder, alcohol dependence, hypertension, tinnitus and sensorio-neural hearing loss were war-caused. The hearing loss and tinnitus were accepted as being war-caused as they were considered to be due to Mr Simos’ repeated firing of an M60 machine gun in Vietnam. This decision of a delegate of the Department of Veterans’ Affairs (DVA) was dated 25 February 2007. The other medical conditions were rejected by a delegate of the Repatriation Commission as being war-caused on 28 September 2007.
In his statement accompanying the application, Mr Simos attributed significant changes in his behaviour to his military training. He said these changes did not become evident until his arrival in Vietnam. The only stressful incident that he referred to was witnessing the despatching of deceased American servicemen at the (Saigon) airport. (T‑documents p 4).
In his reasons for decision the delegate of the Repatriation Commission (the Commission) acknowledged that Mr Simos had experienced an event which met the Repatriation Medical Authority definition of a severe psychosocial stressor but that he maintained that this did not occur on operational service. Mr Simos’ operational service in South Vietnam was from 16 September 1971 to 18 November 1971, during which time he was actually in South Vietnam for 51 days.
Mr Simos lodged a further application for an increase in his disability pension on 27 February 2009. The medical conditions he claimed as being war‑caused were as before, with the addition of asthma, atrial fibrillation and hypertension. The psychiatric conditions Mr Simos claimed as being war‑caused were as before, with the addition of posttraumatic stress disorder (PTSD). Mr Simos’ application for an increase in disability pension was rejected, because he had no history of experiencing a Category 1A, 1B or 2 stressor. This was a requirement of the Statement of Principles (SoP) for depressive disorder, anxiety disorder, and those other conditions dependent upon the psychiatric conditions leading to alcohol abuse or dependence, hypertension and atrial fibrillation.
Mr Simos lodged an application for review of the delegate’s decision with the Veterans’ Review Board (VRB). The VRB affirmed the delegate’s decision on 13 October 2009 on the basis that the material before it did not suggest that the Veteran had experienced a Category 1A, 1B or 2 stressor during his war service. In this claim Mr Simos had for the first time raised the episode known as the patrol incident; which he said occurred at Nui Dat some two to three weeks after his arrival in South Vietnam. It involved him and two colleagues performing (what is more correctly called) sentry duty in a bunker; during which one of his colleagues, in response to perceived movement in long grass or trees, discharged his weapon. At the VRB hearing on 13 October 2009, Mr Simos neglected to mention the patrol incident as a stressor but was questioned about it by the Board, the incident having been described by Dr Collier in his report. (Exhibit R6, page 33).
Mr Simos applied for review of the VRB decision by the Administrative Appeals Tribunal (the AAT). The matter was heard by the Tribunal, as currently constituted, over a period of three days (11 and 12 April 2011 and 31 May 2011). The Tribunal, in its decision dated 3 August 2011, affirmed the decision of the VRB on the basis that Mr Simos’ claim for asthma did not meet the requirements of the SoP for asthma (the so‑called Step 3 of the Deledio process). The claim for a general anxiety disorder (GAD) also failed at Step 3 of Deledio, because the Tribunal found that Mr Simos had not experienced a Category 1A stressor as required by the SoP Instrument No 101 of 2007 concerning Anxiety Disorder. And, while it was not absolutely necessary to do so, the Tribunal proceeded to a consideration under Step 4 of Deledio, based on the unreliability of Mr Simos’ evidence, which was frequently contradictory. The Tribunal was satisfied beyond reasonable doubt that there were no sufficient grounds for making the determination that Mr Simos’ diseases were war-caused.
Mr Simos lodged an appeal to the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).The appeal was heard by Tracey J on 19 April 2012. Mr Simos submitted that the Tribunal had erred by:
·Finding that the material before it did not point to there having been any life-threatening event during his military service.
·Misdirecting itself as to what constitutes an objectively reasonable perception that an incident was life-threatening.
·Failing to determine what was meant by the expression “viewing corpses or critically injured casualties as an eyewitness.”
·Failing to disclose any adequate reasons for rejecting the construction of the expression “viewing corpses or critically injured casualties as an eye witness” which had been advanced by the psychiatrists who gave evidence for Mr Simos.
·Misapply [sic] the definition of “a clinically significant psychiatric condition” by basing its decision on a finding that the applicant’s condition did not warrant ongoing management until 1998.
In his judgement, His Honour upheld the submission that the Tribunal had: Misdirected itself as to what constitutes an objectively reasonable perception that an incident was life‑threatening. His Honour said, at paragraph 26, that:
26 In dealing with step 3 in the Deledio process the Tribunal had concluded that “[t]he material does not point to there being any life-threatening event during Mr Simos’ service”:.
and at paragraph 27 said:
... A fair reading of the Tribunal’s reasons suggests that the reverse is true and that Mr Simos’ real complaint is that the Tribunal confined itself to a consideration of his subjective response to the patrol incident and failed to make a reasoned determination as to whether or not the patrol incident was a life-threatening event. This is a significant matter to which I will return.
Further in paragraph 31 Tracey J stated:
31 The Tribunal concluded that the material did not point to Mr Simos having experienced any life threatening event during his service. It did not say why it had come to this conclusion and, in particular, why the patrol incident did not constitute a life threatening event. The Tribunal’s conclusion depended on it being correct, as a matter of law, that, on no view, could the patrol incident, as described by Mr Simos, have constituted a “life threatening event” within the meaning of clause 9(a) of the Sop. The Tribunal did not, however, expressly so hold. ...
His Honour concluded at paragraph 36 that:
36 In the end, I have concluded that the Tribunal dealt with Mr Simos’ claim to have experienced a category 1A stressor on the mistaken basis that Mr Simos did not assert that the patrol incident could, objectively, be regarded as a life-threatening event. This mistake was critical in the determination that was a central question on Mr Simos’ appeal. In the absence of an objective basis for this claim it was bound to fail. The Tribunal recorded (at[109] –see above at [20]) that Mr Simos had agreed that “there was no objective event meeting the definition of a 1A stressor sub-paragraph (a) of experiencing a life-threatening event.” The Tribunal’s failure to give any detailed consideration to this aspect of Mr Simos’ claim strongly suggests that it accepted and acted on what it considered to be a concession that no objective basis for the claim existed. No such concession was made.
Ultimately, His Honour determined not to exercise the Court’s power, to undertake additional fact finding necessary to determine whether a foundation existed for the Tribunal’s conclusion that the patrol incident was not “objectively reasonable” and decided to remit the application to the to the Tribunal constituted by the member who made the original decision to be decided again without the hearing of further evidence.
His Honour rejected all the other grounds Mr Simos raised as being indicative of an error at law.
Evidence relating to the Experiencing of a Category 1A stressor and in particular the Patrol Incident
In 2007 the Commission delegate dealing with Mr Simos’ original claim for disability pension, identified him as having suffered a 1A stressor while in training but not during operational service. No evidence of the nature of this 1A stressor was provided.
Mr Simos did not mention the patrol incident as the relevant 1A stressor until 16 April 2007, when he gave a history of this event to his psychiatrist, Dr Collier. This was some 36 years after his operational service in Vietnam.
Mr Simos had been attending the Vietnam Veterans’ Counselling Service (VVCS) from 1998, where he attended by himself and with his wife. His attendance was said to have been for alcohol misuse, aggression, mood swings and marital problems. The details of his consultations with VVCS are subject to confidentiality provisions. In 2002 Mr Simos was referred to Dr Collier by a psychologist at the VVCS for treatment and assessment of mood swings, anger management and short periods of depression. In his first visit to Dr Collier in 2002 Mr Simos declared that he had not experienced any highly traumatic events during his term in Vietnam. He did report seeing Vietnamese villagers who had lost limbs and body bags being loaded on to an aeroplane.
At the time of Mr Simos’ first consultation with Dr Collier, Dr Collier was a senior psychiatrist in the Vietnam Veterans’ Psychiatric Unit at the Austin Hospital. Dr Collier opined that Mr Simos did not meet the criteria for PTSD. He particularly mentioned the difficulties in the family due to disabilities of Mr Simos’ children and the presence of some marital problems. Dr Collier made a diagnosis of moderately severe anxiety with intermittent depression and excluded a diagnosis of PTSD. Mr Simos attended Dr Collier on two further occasions and failed to attend his third review appointment. (Exhibit R10)
Mr Simos next saw Dr Collier on 16 April 2007 and gave the following description of the patrol incident to Dr Collier (T5, p15):
The word was the Vietcong planned to hit us hard before we left the Nui Dat area. We were stressed. The night was black. It was drizzling. We were in a bunker protected with sandbags. We had set an M60 machine gun up and we had our own rifles as well. We could hear our artillery in the background.
Mr Simos had told Dr Collier that:
He and two colleagues had been told they would go onto the patrol line, that is to man a security point which was located on the perimeter of the camp. They were to relieve the group that had already been there and they were to stay the night in that situation...
Mr. Simos and his colleagues were on a bit of a rise approximately one kilometre from the bush. There was reportedly some cleared grassy area, but areas of thick grass and water also. They settled in as best they could but there was a “horrific feeling” about being out there as compared to being in the camp. Mr. Simos felt totally insecure. One of his mates was half snoozing. Eventually the man on the M60 seemed to shake. There was some kind of movement out there. He fired several rounds. Mr. Simos panicked and then froze. “It might have been the movement of the water or perhaps a pig in the grass or monkeys in the bush but the thing I recall is the fear. The next day we laughed about it but the fear did something to me, I imagine like a bad car accident does.”
In his consultation with Dr Collier, Mr Simos described the fear as being the fear of being in a situation where you might have to kill someone or be killed yourself. He said he was never a bully and he felt unsuited to such situations.
Dr Collier made a diagnosis of Generalised Anxiety Disorder (GAD). He also noted some depressive symptoms, which he felt were sufficient to meet the diagnostic criteria for a major depressive disorder. In addition, he diagnosed alcohol dependence. Dr Collier stated that Mr Simos met the relevant SoP for anxiety disorder as the patrol incident was at least in Mr Simos’ mind a life-threatening event. (T5, p18)
Despite identifying the patrol incident as a 1A stressor, at least in subjective terms, Dr Collier subsequently wrote in a letter of referral to Professor Malcolm Hopwood, dated 14 November 2009, that Mr Simos did not experience any specific stressor fulfilling the requirements of relevant DVA Statement of Principle. (Exhibit R10, p15). This referral to Professor Hopwood was for a formal neuropsychological assessment. This assessment excluded the suspicion that Mr Simos suffered from a cognitive defect.
In his evidence before the Tribunal, Dr Collier confirmed that he considered this event to have been a 1A stressor from a subjective point of view, although there was no life‑threatening event objectively. (Transcript p161, 12 April 2011).
In April 2010 the psychiatrist Dr Timothy Entwisle described the event as follows:
...
The most traumatic event was when they were sent out to patrol the perimeter wire. He had to spend a night in a bunker with two other servicemen. Throughout the evening they were on high alert because they had received intelligence the Viet Cong were going to hit them hard. He was very stressed. It was raining. One of the soldiers got “spooked” and fired a gun at a movement in the grass. He felt totally insecure. He believes that his anxiety problems began at that time and have remained with him.
Dr Entwisle also stated that Mr Simos described himself as being constantly in fear throughout his time in Vietnam by just being there.
Dr Strauss has reported the incident in the following terms:
He said that he was on patrol on one occasion at Nui Dat with two other more experienced soldiers and he said it was dark, windy and raining and one of the other soldiers fired off a couple of rounds and this frightened Mr. Simos even though there was no enemy there.
Dr Strauss did not identify any 1A or 1B stressors. He regarded Mr Simos as being a naive and protected individual at the time of his deployment to Vietnam, who had reacted adversely to his short experience in a war zone.
Mr Simos’ Statements and Evidence
As previously stated, Mr Simos’ statement of 22 February 2007 (T4) makes no reference to any event like a patrol or sentry duty.
In Mr Simos’ statement of 5 January 2010, the event is described in the following terms:
...
Not long after arrival at Nui Dat I was part of a small patrol stationed on sentry duty inside the perimeter of the base. I spent the night in a bunker. To the best of my recollection I was keeping sentry with two other soldiers (whose names I do not recall). At the time we were on high alert in the base because it was believed that the Viet Cong may be planning to strike the base. I recall being very nervous whilst undertaking the sentry duties on this evening. At one point there was movement outside the perimeter coming from a bush and one of the men discharged his weapon in that direction. At the time I thought that we were about to be attacked and I was in fear of my life. As it transpired, nothing further eventuated but I recall being fearful until my return from the perimeter.
Mrs Simos gave most of the evidence before the VRB but Mr Simos described the patrol incident as:
I didn’t know who I was going with I mean just it was – I think was three or four of us, so we worked our way through around the wire and we stationed ourselves in the – I think – I’m pretty sure we released a group and we sat and we were all night there. And so we just sort of sitting there just talking away and – because it was very dark. I mean, you just don’t see anything. And it was quite stressful because we were on alert then ... and it was just weary and smelly and everything, and all of a sudden there was a movement – because it was just all weeds and bushes and I was sitting back and it was the bloke in front, and I mean I can’t remember his name now, but there was movement and, in fact, you know, he jumped and he let – actually let a couple of rounds go thinking that – and of course I just – you know, we just froze thinking that, you know, that it was somebody out there. So we just we were all prepared sitting and then we realised, you know, whatever it was must have been animal or something. We don’t know.
And that sort of traumatised us and, you – but, you know, you’re sort of – you don’t reflect at the time because you’re – you know, these things don’t happen. You don’t feel, you don’t think there. It’s later on that you start to think about it. (Transcript 13/10/2009, p34)
In his evidence before the Tribunal on 11 and 12 April 2011, Mr Simos first described the patrol incident in much the same way as he had related it to Dr Collier. He said that he and two other more experienced soldiers were in a bunker on the perimeter of the camp at Nui Dat performing sentry duties. Having settled down for an hour or more, movement in the grass was noted some 100 or more metres away. One of the soldiers said there’s something out there and one of them fired one or two rounds of ammunition. This he said had traumatised him. He had difficulty explaining what traumatising him meant but eventually stated he felt numb and was afraid. This is the same terminology he used to describe his feelings on arrival at Saigon Airport on 17 September 1971.
Mr Simos said he had not expected an event like this, as he had never been told that he would be going into a war area or that he would be exposed to shooting. He said he did not know what to expect although the two soldiers accompanying were more experienced and to them it had seemed a natural event. He said:
I just didn’t have the time or the thoughts of thinking that, you know I’m going to be killed. (Transcript p46)
Mr Chancellor, counsel for Mr Simos, asked him:
... So what was going through your mind very quickly?
Mr Simos answered:
The fear of death, the fear of, you know, having to fire a weapon. You know, be killed – be killed. Kill. You know, just I suppose, that hit home that in reality I was in a war zone. (Transcript p48)
In cross-examination on 12 April 2011, Mr Purcell, counsel for the respondent, sought to clarify Mr Simos earlier statements. Mr Purcell asked him whether he said in his examination-in-chief that:
I did not think I would be killed. I was just numb and frightened.
Mr Simos replied correct. He also admitted that his fear was momentary because there were no further noises. Mr Chancellor did not challenge this evidence in re-examination.
Earlier during cross-examination, Mr Purcell had established the size, shape and position of the so-called bunker. In fact, it was not a bunker as it was not dug into the ground but was a three-sided roofed structure, which Mr Simos estimated was five metres by three to four metres, with three solid sides and an open side looking out toward the long grass and trees beyond the perimeter. This side was supported by pylons and protected by sandbags. There was a walkway between the sandbags to gain entry to the shed-like structure; and the M60 machinegun was set up in front of the entry. The shed was some 10 meters higher than the cleared ground between the camp and the bush and Mr Simos estimated the distance from the shed to the bush to be between 100 and 200 metres, all which was covered in tall grass.
Initially, Mr Simos denied there were Rules of Engagement in force at the time but then recalled having seen these in writing. He denied having being told of their existence prior to going on patrol.
Under cross-examination on 12 April 2011, Mr Simos was challenged by Mr Purcell about the difference between his descriptions of this event on various occasions. His answers to these questions were, in the Tribunal’s opinion, unintelligible. For example, Mr Purcell said:
So what are you saying now, then, Mr Simos? Are you saying this conversation, that is, the words were said, “Something out there,” are you saying that actually took place or it didn’t take place or you’re not sure?
To which Mr Simos answered:
It took place in as far as discussing it, yes. (Transcript 12/4/2011, p144)
Many of these questions were answered in the same unhelpful vein.
In their respective reports, none of the three psychiatrists, Dr Collier, Dr Entwisle or Dr Strauss, had turned their minds to the presence of any other 1A stressors affecting Mr Simos before his service, during service or after service. Dr Collier had noted the disabilities suffered by Mr Simos’ four children and that Mrs Simos’ first pregnancy had ended in stillbirth following septicaemia. It was put to each of the psychiatrists to identify or to consider if any of these other events amounted to a 1A stressor.
In summary, all three psychiatrists found the stillbirth and Mrs Simos’ near death which accompanied it, Mr Simos’ children’s predominantly psychiatric problems and congenital anomalies and the failure of Mr Simos’ formerly successful business in 1989-90 (which involved him going into debt, a debt he was still repaying) all amounted to 1A stressors.
RELEVANT LEGISLATION AND STATEMENTS OF PRINCIPLES
The Veterans’ Entitlement Act 1986 (Cth) (the Act) provides for the compensation of a Veteran for war-caused injuries and diseases. Section 9 provides that an injury or disease shall be taken to be war‑caused if it arose out of or was attributable to any eligible war service or resulted from an occurrence that happened while the Veteran was rendering operational service.
Mr Simos had operational service arising from his posting to Vietnam in late 1971. The standard of proof attracted is delineated in s 120(1) and s 120(3) of the Act.
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.
Note: This subsection is affected by section 120A.
...
(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.
Note: This subsection is affected by section 120A.
As Mr Simos’ claim was lodged after 1 June 1994, it is subject to the requirements of s 120A. Any reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service raised is to be assessed by reference to Statements of Principle (SoP), which are determined under s 196. It has been established that there are SoPs in existence for all of the conditions Mr Simos has claimed as war-caused.
The parties agree and the Tribunal finds that the relevant SoPs are:
(a)Anxiety Disorder – Instrument No 101 of 2007
(b)Depressive Disorder – Instrument No 27 of 2008
(c)Hypertension – Instrument No 35 of 2003 as amended by Instrument No 3 of 2004 and No 11 of 2008
(d)Atrial fibrillation – Instrument No 19 of 2003
(e)Asthma – No 85 of 2001 as amended by Instrument No 36 of 2004.
(f)Alcohol Dependence and Alcohol Abuse Instrument No 17 of 2008
All of these SoPs were in effect at the time the primary decision was made on 6 May 2009.
SUBMISSIONS
Ms Ryan, counsel for Mr Simos, submitted that the question for the Tribunal was whether the applicant had experienced a life-threatening event in the patrol incident, given that it was accepted that the applicant suffered from GAD.
Ms Ryan cited Forrester v Repatriation Commission (2013) FCA 898 and Bull v Repatriation Commission (2001) FCA 1832. Both of those cases were widows’ claims for pension but failed at Step 1 of Deledio, as no hypothesis was raised by the material because there was no direct evidence possible as the veteran in both cases was deceased. Ms Ryan contended this was not the case here as Mr Simos had given evidence of how little or no training he had had, the actual patrol incident and his reaction to the firing of the M60 by a fellow soldier (being one of numbness and fright).
Ms Ryan submitted that fear at the time of the event, that is, the instantaneous response, was the test required and in this instance satisfied the definition of a 1A stressor. The absence of any other evidence to support the hypothesis, such as army records of the event occurring, was in Ms Ryan’s submission, insufficient, to enable the Tribunal to be satisfied beyond reasonable doubt that Mr Simos’ GAD was not war-caused. Ms Ryan accepted that the assessment of the claim at Step 4 of Deledio would turn on the Tribunal’s assessment of Mr Simos’ evidence.
Ms Ryan referred to Border v Repatriation Commission No 2 (2010) FCA 1430 at paragraph 67, where Reeves J said:
It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event ...[and] That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death.
and later:
this test is not to be applied in an unduly restrictive manner. ... the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. ... [and] conduct after the event is irrelevant.
The Tribunal notes that in Border the applicant suffered from PTSD, a condition dependent for its diagnosis on the exposure of the sufferer to a 1A stressor, the establishment of a diagnosis being a preliminary consideration, preceding the application of the Deledio steps.
Mr Wallace, for the respondent, interpreted the task set by Tracey J in remitting the matter to the Tribunal as determining whether Mr Simos experienced a life-threatening event given the finding that there was no concession on the part of counsel for Mr Simos, that the patrol incident was not a life-threatening event. While this test was primarily objective it did require an assessment of Mr Simos subjective response and the Tribunal had addressed this in its earlier decision, as referred to by His Honour Tracey J at paragraph 27.
Mr Wallace said that the respondent did not accept that Mr Simos was ill‑equipped and ill-trained. Mr Simos did not require jungle training for the task he was set, that is, to assist in the packing up and closure of the Nui Dat base in readiness for handover to the South Vietnam army forces. Additionally, the claimed patrol was not a patrol but sentry duty in a substantial building as opposed to a bunker and no enemy was seen by any member of this group.
Mr Wallace submitted that no evidence had been called to support the occurrence of the event as described by Mr Simos and none could be called because the event did not happen. He identified Mr Simos’ credit as an issue.
Mr Wallace distinguished the decision in Border, as a claim for PTSD which attracted a different SoP and definition of 1A stressor or its equivalent. Mr Wallace submitted that Mr Simos’ application failed at the first step of Deledio. That is, all the material before the Tribunal did not raise a hypothesis connecting his claimed medical conditions with the circumstances of the particular service he had rendered.
TRIBUNALS DELIBERATIONS
In accordance with the directions of His Honour Tracey J, the Tribunal is required to reconsider its decision (Re Russell Simos and Repatriation Commission [2011] AATA 537) that there was no objective foundation for Mr Simos’ claim to have experienced a life-threatening event. His Honour had determined the Tribunal had reached this conclusion on the mistaken belief that Mr Simos and/or his counsel had made a concession to that affect. The directed reconsideration did not require the taking of further evidence.
Step 3 of Deledio requires that the hypothesis raised is consistent with or fits the template to be found in the SoP in order for the hypothesis to be reasonable. In reaching its decision of 3 August 2011 this Tribunal relied primarily on Mr Simos’ spontaneous, evidence before the VRB and the AAT, in particular the latter, where he twice clearly stated that he did not think he would be killed (Transcript of 12/4/2011 page 147, and 11/4/2011 page 46). Mr Simos also stated that his subjective response, that is his fear and numbness, was momentary. The Tribunal acknowledges that when later on 11 April 2011 the question was put by Mr Chancellor, were you in fear of your life? Mr Simos answered - Yes. Mr Chancellor did not pose the same question on 12 April 2011.
As his Honour has found that no concession was made by the applicant in this regard no further consideration of this evidence is required.
The Tribunal had found that the Mr Simos did not meet the template of the SoP in that his anxiety disorder was not clinically significant until 1998, some 27 years after his operational service; as opposed to the SoP requirement, in relation to category 1A and 1B stressors, that the onset of the anxiety disorder be within 5 years of the event. The requirement that the anxiety disorder be clinically significant, as defined in SoP No 101 of 2007, is in item E of the diagnostic criteria for the psychiatric disorder. His Honour has found that the Tribunal did not err in its interpretation of this requirement. (para 57).
While Mr Simos’ description of the patrol incident has varied greatly over the four years this claim has been afoot, there are some common features to the descriptions. It would appear there were two other more experienced soldiers accompanying him on what the Tribunal understands to be sentry duty rather than patrol duty. They were housed in a well-constructed sentry post, elevated in relation to the distant bush and separated from the latter by 100 to 200 meters of cleared but grassed ground. The patrol was said to have occurred in the dark of night when it was windy and raining. One of Mr Simos’ fellow soldiers reportedly saw movement in the long grass and fired one or two rounds of ammunition into the area. In the original hearing before this Tribunal, Mr Barsley of Writeway Research Services provided a report which stated (among other details) that the Nui Dat camp was never attacked by enemy infantry throughout the course of the war in Vietnam. In September/October 1971 Nui Dat was being vacated by the Australian forces and handed over to the South Vietnamese army.
In Re White and Repatriation Commission [2003] AATA943, the Tribunal rejected Mr White’s claim that his anxiety disorder and alcohol abuse were war-caused, having determined that the raised hypothesis did not meet the template provided by Instrument No.1 of 2000, concerning Anxiety Disorder, and was therefore not reasonable. The relevant SoP provided that one of the minimum factors that must exist to connect the anxiety disorder with the person’s relevant service, and as relied on by Mr White, was experiencing a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder. A severe psychosocial stressor was defined as an identifiable occurrence that evokes feelings of substantial distress in an individual and non-exhaustive examples were provided, such as being shot at and death or serious injury of a relative.
The facts in White are very similar to those in Mr Simos’ application before the Tribunal. Both applicants were young and inexperienced, their operational service was very brief (56 days in Mr White’s case) and the clinical diagnosis of the anxiety disorder and alcohol misuse was not made in either case for over 30 years after the relevant service. Mr White had suffered severe embarrassment when he was unable to open a door on a landing craft in Vung Tau Harbour and on returning, in the landing craft, to HMAS Sydney he had felt vibrations against the hull of the landing craft which he was shortly thereafter told were due to scare charges being dropped by the Sydney.
Mr White’s appeal to the Federal Court was dismissed. Spender J. said at paragraph 28:
In my opinion, the ordinary language of the definition makes it clear that the examples given are those of “identifiable occurrences” contemplated, not of “substantial distress”. The examples are of “occurrences”, not emotions.
And at paragraph 31:
The Tribunal determined that the events relied on did not meet the objective requirements of an identifiable occurrence contemplated by the definition of “a severe psychosocial stressor”
And again at paragraph 32:
In my opinion, the submission on behalf of Mr White that an event that 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 in the definition would be not only irrelevant and devoid of utility, but positively misleading.
The SoP (Instrument 101 of 2007) concerning anxiety disorder took effect on 5 September 2007 and is the relevant SoP relied on by Mr Simos. In this Sop, the Repatriation Medical Authority abandoned the concept of a severe psycho-social stressor and substituted Category 1A, 1B and 2 stressors. Mr Simos has relied on Factor 6(a)(ii) – experiencing a Category 1A stressor within the five years before the onset of anxiety disorder. A Category 1A stressor is defined as follows:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped or being tortured;
Mr Simos relied on (a) above, experiencing a life-threatening event.
The descriptions of Category 1 A and 1 B stressors are couched in objective terminology; and while not necessarily detracting from the established objective and subjective elements as interpreted by the Federal Court in such cases as Woodward v Repatriation Commission (2003) 200 ALR 332 and Stoddard v Repatriation Commission (2003) FCA 334, the descriptions do reinforce the requirement of the objective element of the traumatic event, as emphasised by Spender J in White.
No evidence has been led to support Mr Simos’ assertion. There is no record of the event in official army records, although in accordance with the Rules of Engagement the event should have been reported and investigated. The Nui Dat Army Commander’s records ceased on 19 September 1971 but those of the Field Squadron Commander continued until 16 October 1971 (Exhibit R8), this being the date by which all Australian army personnel had left Nui Dat and transferred to Vung Tau, to await return to Australia by sea.
Mr Simos does not know the names of his two companions in the patrol and no attempt has been made to contact them or obtain statements from them. The only colleague to provide a statement was Mr Peter Watson (T4, p9) who had shared a room with Mr Simos during their School of Mechanical Engineering training, had flown to Saigon with him on 15 and 16 September 1971 and was based in the same camp in Nui Dat, although in a different unit. Mr Watson and Mr Simos had remained close friends for over 30 years but in his statement Mr Watson made no reference to the patrol incident.
The incident does not meet a reasonable man test. It was not life-threatening, as objectively, there was no enemy attack. Mr Simos was, on his own evidence, well protected, well-armed and in the company of two more experienced and armed soldiers.
Ms Ryan submitted that if the Tribunal should find that the patrol incident was objectively reasonable but Mr Simos’ subjective response did not meet the requisite level, this would be inconsistent with the Tribunal’s previous finding that Mr Simos suffered from GAD since his service.
The Tribunal rejects this submission having accepted Dr Strauss’ opinion that Mr Simos, when he undertook National Service and volunteered for service in Vietnam, was both naive and had a protected upbringing, such that he found the entire experience of army training and service stressful. In addition, Mr Simos in his statement of 22 February 2007 (T4, p4) said that:
... I wish to detail the reasons for significant changes in my behaviour which followed my period of military service. I believe the changes took place within me during military training, although they were not evident until my arrival in Vietnam, when faced with the reality of killing or being killed.
Thus, Mr Simos himself dated the onset of behavioural changes to the period of his army training, which was not during operational service.
In all other respects the Tribunal’s decision is the same as its decision of 3 August 2011 and, in particular, its findings in relation to Step 4 of Deledio.
The Tribunal affirms the decision under review.
I certify that the preceding 67 (sixty‑seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan
...........[sgd].............................................................
Shivanthi Herath - Associate
Dated 28 February 2014
Date of hearing 18 December2013 Counsel for the Applicant Ms Fiona Ryan Solicitors for the Applicant Mr Michael Jorgensen - Williams Winter Counsel for the Respondent Mr John Wallace Solicitors for the Respondent Mr David Brown - Australian Government Solicitors
A1 Statement of Russell Simos dated 5 January 2010 A2 List of counselling sessions with Veterans and Veterans Families Counselling Service A3 Medical report by Dr George Proimos dated 7 April 2010 A4 Medical report by Dr George Proimos dated 3 June 2010 A5 Medical report by Dr Timothy Entwisle dated 28 April 2010 A6 Medical report by Dr Timothy Entwisle dated 11 June 2010 A7 Medical report by Dr Paul Collier dated 19 November 2010 R1 T documents R2 Extract from "Greek-Australians in the Vietnam War" by Steve Kyritsis, pages 194-201 R3 Clinical notes from Dr Hare from 18 April 2001 to 8 April 2010 R4 Clinical notes from Dr Hare from 23 April 2010 to 18 October 2010 R5 Clinical notes from Dr Hare from 18 December 2010 to 15 March 2011 R6 VRB Transcript dated 13 October 2009 R7 VRB Transcript dated 20 July 2010 R8 Writeway Report by Warren Barsley dated 29 July 2010 R9 Australian Army Commander's diaries (Vietnam) dated 1 to 31 October 1971 R10 Medical notes from Austin Health R11 Medical report by Dr Nigel Strauss dated 12 August 2010 R12 Medical report from Professor Richard Harper dated 11 August 2010 R13 Medical report from Professor Richard Harper dated 15 November 2010 R14 Medical report from Dr Abraham Rubinfeld dated 21 August 2010 R15 Medical notes from Barwon Health R16 Map of Nui Dat Base R17 Aerial photograph R18 "Training" 1 FD SQN Periodical Technical Report dated 31 August 1971 MFI1 Detailing of Lifesaver Exercise (Not filed)
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