TERRENCE MATTHEWS and REPATRIATION COMMISSION

[2009] AATA 647

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 647

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3700

VETERANS' APPEALS DIVISION		)
Re		TERRENCE MATTHEWS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date28 August 2009

PlaceBrisbane (heard in Townsville)

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans’ Entitlements – Disability pension – Alcohol dependence – Depressive disorder – Whether applicant's conditions war-caused – No reasonable hypothesis – Decision affirmed

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

28 August 2009 Senior Member Bernard J McCabe         

1.      The outcome of this case turns on whether either of two events described by Mr Terrence Matthews, the applicant, is capable of being considered as:

·     a “category 1A stressor” within the meaning of Statement of Principles No 1 of 2009; or

·     if neither event is a category 1A stressor, a “severe stressor” within the meaning of Statement of Principles No 76 of 1998.

2.      The parties have agreed and I accept the applicant has been properly diagnosed as suffering from alcohol dependence and a depressive disorder. I accept an hypothesis has been made out connecting the applicant’s operational service with the development of alcohol dependence and (in due course) depression. There are statements of principles in force in relation to those conditions. I accept that the applicant is entitled to succeed with respect to the depressive condition if he succeeds in relation to the alcohol dependence condition, since the Repatriation Commission, the respondent, has properly conceded the applicant’s alcohol dependence condition arose about the time of his service and preceded the development of the depressive disorder.

The applicant’s story

3.      Mr Matthews completed his electrical apprenticeship before he was drafted into the Army in 1970 as a national serviceman. He trained for approximately a year after he was drafted. After initial training with the infantry, he trained with the Royal Australian Engineers. He was sent to Vietnam in 1971 and was posted to the Australian base at Nui Dat. He served with a variety of units. Throughout this time, he was responsible for doing electrical work on a variety of electrical amenities, such as generators. He was also called upon to assist with other tasks, like cleaning the base pool.

4.      The applicant also performed picket duty on one night. He occupied a tower with another soldier. The tower was located immediately inside the perimeter fence. Both of the soldiers were armed. They heard a noise in the dark beyond the perimeter. The applicant said they did not know what the noise was. He said they thought it was a pig or other wild animal, but they could not be sure. They did not raise the alarm or discharge their weapons. Nothing further transpired, although the applicant obviously was scared. That is unsurprising, given he had no experience of combat or even of picket duty.

5.      Mr Honchin, counsel for the applicant, made it clear the applicant did not rely on the events in the tower that night as being a stressor for present purposes. He pointed out the experience might still be relevant insofar as it informed the applicant’s reaction to one of the later events which I am required to consider. But I will come to that in due course.

6.      The first event that the applicant relied upon as a stressor occurred a month or so after he performed picket duty when he was called upon to assist with cleaning the base pool. The pool was quite large. I was shown a picture (Exhibit 6). It was an above-ground structure with a steel frame and a heavy canvas liner. On this occasion, the pool was being emptied for maintenance purposes. The pump was unable to remove the last nine inches or so of water. Someone hit upon the idea of picking up the bottom of the liner on one side and forcing the water along the bottom of the pool to a central spot where the pump could remove it. To this end, the applicant and about 19 other men were called to the pool and instructed to bend down and push themselves under the liner. They were to move forward under the liner on all fours in a line and create a crest that would push the water forward so that the pump could remove it. They were asked to behave like hydraulic jacks that raised the floor of the pool. It sounds like a silly plan, but the applicant pointed out he was in no position to question the orders he was given. He said he started in under the canvas but soon became aware he could not move forward. He said he could not move backwards either. Perhaps the water had moved through the gaps between the men and pinned the liner to the ground behind him. In any event, he said his body effectively formed a bubble in the liner. He said he ended up in the foetal position and began to panic. He said he felt he might die. He said he did not know how long he was there. He did not know whether he called out or heard anyone else, although there must have been other men in close proximity. He said he was able to breathe but was also unsure how long he would be able to do so if he remained trapped. After an indeterminate period, he was able to free himself and made his way to the edge of the pool. He does not have a clear recollection of how he did this. After he came out from under the liner, he said he felt exhausted. He did not look into the pool. He was not aware if anyone had noticed him get out or if they were aware he had been trapped under the surface of the liner. He left the area soon after and returned to his tent. He did not tell anyone else about the incident but insists he was deeply distressed by the experience.

7.      The second event that the applicant said was a stressor occurred towards the end of his time in Vietnam. He was on duty one night monitoring the operation of the diesel generator in a “power-house”. The power-house was a structure with a roof but no walls. It was located about 30 metres from the tent he shared with other soldiers from his unit. There was one generator in the power-house and a fuel tank containing diesel outside. There was light from a single globe, although that area of the camp was otherwise in darkness. The power-house was located within the Nui Dat base. It was some distance from the perimeter fence, although the applicant did not know where the perimeter fence was located.

8.      He said he could tell from the sound of the generator that it required attention. He walked over the open ground between his tent and the power-house. He did not take his weapon with him; he said he never did on these jobs.

9.      While he was in the power-house on that evening, he was approached by an armed soldier on roving picket duty. The soldier asked whether the applicant had heard any shots. The soldier said he thought some shots had passed over his head and he was trying to determine their source. The applicant said the soldier looked concerned, but nothing more was said before the solider departed, presumably in search of the mystery gun-men. (The applicant subsequently learned that some shots were fired that night by Australian soldiers involved in an exercise, although he was not to know that at the time.) The applicant agreed he had not heard any shots over the sound of the generator.

10.     The applicant said he turned off the light and decided to take cover behind the generator after the soldier departed. He waited and listened for over an hour before deciding to make his way back to his tent where his mates and weapon were located. He said he was unwilling to cross the open ground between the power-house and the tent for some time. He heard and saw nothing during the intervening period. When he finally woke one of his colleagues in the tent, his colleague appeared unconcerned.

The statement of principles

11.     Do either of the events described by the applicant satisfy the definition of a category 1A stressor? The definition in clause 9 of Statement of Principles No 1 of 2009 refers to “severe traumatic events” such as “experiencing a life-threatening event”. The expression “life-threatening event” is not otherwise defined. If I am not satisfied the events qualify as a category 1A stressor, I must then consider whether they meet the definition of a “severe stressor” in Statement of Principles No 76 of 1998. That definition provides:

the person experienced, witnessed or 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.

12.     

I will deal with the power-house incident first. I am not making any findings of fact at this point. I am simply considering whether the events described by

Mr Matthews are capable of satisfying the template provided by the relevant statement of principles.

13.     Mr Matthews was not an experienced soldier. Although he had been “in country” for several months by this point, he had little or no experience of anything other than his job, which did not involve confronting the enemy. His one experience of picket duty on the perimeter fence was uneventful, although there was some uncertainty about the source of a disturbance in the dark. He was an inexperienced young man in a foreign country with what he understood to be a hostile population. He had been issued with a weapon and was aware there were roving pickets to deal with the potential for an enemy incursion. Even so, he was obviously sufficiently relaxed in the relative security of the base to leave his weapon behind when he ventured out of his tent into the dark to do his job. I note he did not have to travel far in order to reach the generator: his tent (housing his weapon and his comrades) was only about 30 metres from the power-house.

14.     Mr Matthews said he regarded what followed as a life-threatening event. That is a necessary but not sufficient condition for him to succeed. I am required to consider whether it was reasonable that a person with those qualities and that experience in those circumstances consider what followed as a “life-threatening event”. 

15.     I do not think the events described by the applicant on that night meets the definition of a life-threatening event. The picket did not tell the applicant to take cover or indicate that the applicant was in immediate danger. He merely reported that shots may have been fired from an undetermined location. There was no suggestion the shots had been fired at the applicant or anyone else. The applicant may have had cause for concern that something untoward might be occurring somewhere – concern that might have justified him turning off the light in case something did occur nearby in due course. But while the picket’s comments were pregnant with the possibility that a life-threatening event might occur, the applicant had no reason to believe he was in immediate danger. He did not so much experience a life-threatening event as anticipate the possibility of experiencing a life-threatening event. That is not the same thing. Whatever he may have actually believed, a person with those qualities and that experience should not have believed in the circumstances that he was under attack at that point. More was required before such a person could or should have formed the belief he was in the midst of a life-threatening event.

16.     I do not think the applicant fares any better if one considers the power-house incident with reference to the definition of “severe stressor” in Statement of Principles No 76 of 1998. It will be apparent from the discussion above that I do not think the applicant could have concluded he faced “a threat of serious injury or death” or considered that he had engaged with the enemy. Given the circumstances he described, it was too early for a person with his qualities and experience to leap to the conclusion that he or anyone else was in imminent danger.

17.     I turn then to the swimming pool incident. The applicant said this was the more significant event. My assessment of his story is made more difficult by the paucity of detail. The applicant frankly admitted that he did not remember precisely what occurred. That is not altogether surprising: the events in question did occur a long time ago, and the applicant’s recollection may have been affected by the conditions which his doctors have diagnosed.

18.     Being trapped in a dark, confined space could be a distressing experience. The Tribunal has dealt with many claims from military personnel who recall suffering as a result of being confined in a dark space – on a ship, for example, during scare charge exercises. Sometimes the individual has succeeded in his claim for compensation; sometimes not. Each case turns on its own facts. In this case, my task is a little easier than it might sometimes be. I do not have to imagine the peculiar environment of a military base or a manoeuvre in the bush or life in the middle of a conflict that occurred 40 years ago. While directing men to climb under a swimming pool liner in these circumstances has its own bizarre quality, it is a coincidence that it should have occurred at Nui Dat in the middle of the Vietnam war.

19.     Without making findings of fact, I note the applicant can only say for sure that he was confined in cramped conditions in the dark for an indeterminate period of time – during which he was able to breathe – before he was able to wriggle free. He said he felt like he was trapped, and that he might die there under the lining if he was not able to free himself or be found by his colleagues. But that is not enough for present purposes. I must also be satisfied that a person with his experience and qualities in those circumstances would form the view he was in the midst of a life-threatening event.

20.     I do not think I can be satisfied a reasonable person with the applicant’s qualities and experience would say he experienced a life-threatening event in all the circumstances. If the applicant had been trapped under the liner for a long period or was being crushed (as opposed to being temporarily confined in a foetal position) or had difficulty breathing, I might have reached a different view. As it happens, the applicant had some limited experience of training in darkened and confined spaces like tunnels. He said he was able to deal with that training experience without difficulty. A person with that experience might be expected to be even less disposed towards a bad reaction than an ordinary person.

21.     My conclusions would not be any different if I applied the definition of “severe stressor” which I have set out above. A person in the applicant’s position should not have formed the view he faced the threat of serious injury or death in the circumstances.

Conclusion

22.     Mr Matthews was an honest and forthright witness. It was apparent he is struggling with his health. I do not doubt he honestly perceives a connection between what happened to him in Vietnam and his current conditions. But the legislation requires that I consider his claim objectively at the same time that I take into account his personal circumstances.

23.     The applicant is unable to satisfy the template provided by the relevant statements of principles. His claim fails to clear the third hurdle identified by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. In those circumstances I will not proceed to consider whether the applicant would have satisfied the requirements imposed at the fourth step in the Deledio process. The decision under review must therefore be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.................................[Sgd].............................................
  Michael Buckingham, Associate

Date/s of Hearing  19 August 2009
Date of Decision  28 August 2009
Counsel for the applicant          Mr D Honchin
Solicitor for the applicant          Purrcell Taylor Lawyers
Advocate for the respondent     Mr J Stoner, Department of Veterans' Affairs