Thomas and Repatriation Commission
[2005] AATA 947
•29 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 947
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/528
VETERANS' APPEALS DIVISION )
Re RYLAND THOMAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr KP Kennedy, MemberDate29 September 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
....................[Sgd].......................
P McDermott
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that alcohol dependence and post traumatic stress disorder were war-caused – consideration of Statement of Principles – – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 188 ALR 756
Hardman v Repatriation Commission [2004] FCA 1174
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission (2004) 39 AAR 67, [2004] FCA 633
Stonehouse and Repatriation Commission [2004] AATA 707
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius[2002] FCA 750
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 75 ALD 420
Delahunty v Repatriation Commission [2004] FCA 309
Guy v Repatriation Commission [2005] FCA 562
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Benjamin v Repatriation Commission [2001] FCA 1879
White v Repatriation Commission (2004) 30 AAR 67REASONS FOR DECISION
29 September 2005 Senior Member P McDermott
Dr KP Kennedy, Member1. In 1966 Mr Ryland Thomas was engaged in operational service with the Royal Australian Air Force in Ubon, Thailand for a period of four and a half months (24 March 1966 to 6 September 1966). He is in receipt of a disability pension assessed at 100 per cent of the general rate for the conditions of cardiomyopathy; vertebrovascular ischaemia; chronic solar skin; damage (face); haemorrhoids; bilateral sensorineural hearing loss and gastro-oesophageal disease.
2. Mr Thomas has lodged a claim for pension in respect of alcohol dependence and post traumatic stress disorder.
3. On 22 November 2001 the Repatriation Commission (“Commission”) rejected a claim for pension for alcohol dependence and continued a disability pension assessed at 100 per cent of the general rate.
4. On 6 January 2003 the Commission rejected a claim for pension and treatment for post traumatic stress disorder.
5. Mr Thomas sought a review of these decisions from the Veterans’ Review Board. On 4 April 2003 the Veterans’ Review Board affirmed these decisions. Mr Thomas has applied to this Tribunal to review the decisions of the Commission, as affirmed by the Veterans’ Review Board.
Issues before the Tribunal
6. We have to decide whether the conditions of alcohol dependence and post traumatic stress disorder are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). We also have to consider whether the pension payable to Mr Thomas is correctly assessed at 100 per cent of the general rate of pension payable under that Act.
7. We consider that if Mr Thomas is successful, the date of effect in relation to alcohol dependence is 20 August 2000, and 30 July 2002 in respect to post traumatic stress disorder.
Background
8. Mr Thomas was born in 1942. He served in the Royal Australian Air Force from 30 July 1962 until 29 July 1968 when his period of enlistment terminated.
9. Mr Thomas asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service, and caused the conditions on which his claim is based. We will refer in detail to his assertions later in these reasons.
Evidence Before The Tribunal
10. We will now narrate a summary of the evidence before us, but we will not at this stage make any findings on matters relevant to the issue of whether Mr Thomas’ claimed conditions were war-caused.
§ Evidence of the Applicant
11. Mr Thomas stated that he had arrived in Ubon in March 1966 and that he was based there for the following 6 months. His duties were those of a transport driver and an aircraft refueller.
12. Mr Thomas said that when refuelling aircraft, his clothes became soaked with fuel and that the fuel wet his stomach, groin, testicles, feet and bottom. The fuel would cause a burning pain and after about 4-6 weeks the skin would peel off his stomach and groin and his testicles would have a burning sensation. He observed bleeding between his toes which he believed was due to the fuel running over his feet and some splits developed on his penis which became swollen and the latter he also attributed to the fuel.
13. Mr Thomas stated that about the middle of June 1966, about the time of his birthday, he commenced to drink quite heavily. He said that at the time his sleeping quarters were about 200 metres from the runway, he was living in a tin shed and the noise from the planes taking off at intervals of 2-15 minutes was excessively loud.
14. Mr Thomas was concerned because there was a fuel dump about 20 metres from his sleeping quarters and that flares used by the Americans sometimes landed close to the fuel dumps. On one occasion a flare landed close to his tanker which caused him to be “scared stiff”.
15. Mr Thomas stated that on another occasion when he was at the end of the runway waiting to cross when a taxiing RAAF Sabre aircraft accidentally fired across his truck.
16. Mr Thomas stated that on one occasion an armed person jumped on his truck but he managed to push him off.
17. Mr Thomas also stated that he was concerned that insurgents might fire mortars at him.
18. Mr Thomas also gave evidence about an incident involving a Thai officer. He said that he was getting a lift from a Thai colonel when they came upon a Thai soldier asleep at his post when on guard duty. According to Mr Thomas the colonel immediately shot the soldier through the head. The applicant said that he was horrified and he grabbed the rifle belonging to the soldier. The rifle had an attached bayonet. The rifle broke when he hit a gate with it and the bayonet pierced his leg.
19. Mr Thomas said that he was taken to a Thai army base where he received attention for his leg and was then badly assaulted. He said he received a hell of a flogging. Following the flogging, two Thai police officers took him back to his base and into his hut where they placed him on his bed. He said that only his friend, Denis Wakeman, woke at the time. The police told his friend to go back to sleep and before leaving they were told not to speak about the incident and they did not.
20. Mr Thomas stated that an incident which caused him concern was a fire in a brothel. He was with a friend by the name of Carl Fontana when an American soldier was incinerated in the upper floor of the brothel.
21. Mr Thomas said that towards the end of his time at Ubon, he became quite ill, He claims to have been left without food and water for days and later to have been transferred to Butterworth but he does not remember arriving at Butterworth where he said he was kept for about 6 weeks.
22. During cross examination, Mr Thomas said that he was 20 yrs old when he joined the service in Victoria. He did not drink at the time. He had signed on for 6 years but he had sought discharge within 6 months. He had subsequently applied again for discharge without success. Initially he had been based at Wagga and later in Sale. He had married between his time in Wagga and the move to Sale but that marriage was not successful.
23. In 1964 Mr Thomas was treated for gonorrhea. He said that he was intoxicated at the time and woke to find a woman in his bed. Usually he would have just a few drinks at social functions.
24. Mr Thomas was given just one month’s notice before his posting to Ubon.
25. When asked about the insurgents, Mr Thomas admitted that there were no incidents involving insurgents during his time at Ubon but said that there was talk of insurgents. When it was brought to his attention that there was no mention of treatment for his skin condition he said that he had sought treatment but that the medical records for that time were missing. He claimed that records for his initial three months at Ubon had been lost.
26. When it was indicated to Mr Thomas that tinea had been diagnosed by the medical officer, his reply was that tinea was their diagnosis. When questioned as to how the Thai police could just move into the camp at 1am or 2am without being challenged, he said that the Thai police could go anywhere. When asked how they found his hut and his bed, he said that someone must have told them.
27. On further questioning, Mr Thomas said that the hut contained 14 to 16 personnel but only one woke up. The lights were not turned on and the police had their pistols drawn. He claims that he did not report the incident because he was scared and that there was no record of treatment for the bayonet wound because he had sought treatment at the American base.
28. Mr Thomas was shown a statutory declaration that he had signed in 2002 in which he had stated that he had witnessed a fire in which a friend had been burned to death but records indicate that the only incident in which an Australian had been burned to death at Ubon had occurred after he had returned to Australia. Mr Thomas now states that it was an American who was burned to death.
29. Mr Thomas was asked about a record in the hearing of the Veterans’ Review Board (Para 32 Folio 132 T Documents) in which it was recorded that Mr Thomas had said that an Australian, an RAAF cook, was burned to death in the incident recorded in the above paragraph. The record also stated that he had helped to put the remains of the Australian and others burned into body bags. When questioned concerning how the body bags came to be so readily available, he said that he did not recall telling that to the Veterans’ Review Board.
30. Mr Thomas stated that he has had recurrent problems with penile irritation with some penile ulcers and pustules. When he was referred to the 1999 report of the Urologist, Dr Gallagher in which Dr Gallagher had stated that his penis was normal (“His penis was normal”); Mr Thomas said that Dr Gallagher had not looked at his penis. When it was indicated to him that Dr Gallagher had specifically stated that examination of the penis had been normal, Mr Thomas said that he did not remember seeing Dr Gallagher.
31. In the written statement of Mr Thomas (Exhibit A5), reference was made to the fire in which a serviceman was burned to death. In that statement he said that he did not know the serviceman. Mr Thomas also stated that about three months after he arrived in Ubon, his penis started to “swell hugely and to split open”. He said that the condition was never adequately treated. On another occasion when taking a photograph he had fallen backwards into an open sewer and that, he had found to be extremely stressful.
§ Evidence of Medical Witnesses
32. The first medical witness was Dr William John Kingswell, a specialist psychiatrist. Dr Kingswell agreed with the diagnosis of alcohol dependence. Dr Kingswell did not agree with the additional diagnosis of post traumatic stress disorder because he considered that such a diagnosis had been based almost entirely on self report and that he considered the stressor to be in dispute.
33. In relation to the commencement of Alcohol Dependence, Dr Kingswell had quoted from a record made by Officer Furze in 1963 and based on an extract of that record had concluded that the disorder had been well documented by 1966 with the implication that Alcohol Dependence had commenced in 1963.
34. During cross examination by senior counsel who appeared for Mr Thomas it was put to Dr Kingswell that by quoting only a selected extract of the report made by Officer Furze, his own report was inaccurate and unbalanced. Dr Kingswell denied that he had presented an unbalanced report and stated that he would not in retrospect change his report. However, we consider that a review of the full report of Officer Furze certainly provides no firm basis for any suggestion that alcohol dependence was established prior to service in Ubon.
35. The next medical witness was Dr David Jardine. Dr Jardine told the Tribunal that he is a medical practitioner with a special interest in sexual health. Dr Jardine said that there was no evidence to substantiate a sexual transmissible cause for the penile cracking and ulcers. The written report of Dr Jardine records that prior to his posting to Ubon, Mr Thomas had had gonococcal urethritis on two occasions and non specific urethritis shortly after the second episode. In Ubon, he first had sexual contact with a local woman in April/May 1966 and on three occasions in total by early June. The medical record at Ubon indicates that he had urethritis in July 1966 and that he had subsequent sexual exposure. Dr Jardine did not favour a diagnosis of herpes simplex because he felt that the description of the lesions was against herpes simplex. He also believed that the time between exposure and appearance of penile lesions to be against a sexual cause and that the failure to respond more quickly to treatment to be also against a sexual cause. Dr Jardine put forward the proposal that the penile changes had been due to exposure to jet fuel and had supplied documentation in relation to animal studies in which skin irritation had been noted.
36. In reply to questions from the Tribunal, Dr Jardine agreed that he could not rule out herpes simplex as a cause for the penile ulcers. He agreed that there had been no reference in the medical notes concerning any abnormality of other skin areas but said it was possible that only the penis might have been affected. He agreed also that the urethritis described while at Ubon could be sexually transmitted. Dr Jardine also agreed that repeated trauma either sexual or otherwise could be responsible for recurrences and slowness to heal.
37. Dr Jardine also agreed that in spite of his opinion against the diagnosis of herpes, the serology result performed on 24 May 2004 showed antibodies to herpes simplex viruses types 1 and 2 and that those results indicated acquisition of these viruses sometime prior to that date. The Tribunal notes that on 10 October 1966 a diagnosis of recurrent herpes simplex was made (Folio 39 of documents filed under cover 17 October 2003). In relation to the effect of jet fuel on the skin, Dr Jardine agreed that he had no information about effects on humans.
38. The final medical witness was Dr Janis Carter, a specialist psychiatrist. Dr Carter had provided a written report dated 3 October 2002 and a report dated 15 March 2005. Dr Carter also gave evidence by telephone. In the report of 3 October 2002, there was no reference to being soaked with fuel nor was any claim made that he was suffering from any condition related to fuel exposure. He told Dr Carter at that time that he had bad tinea when he was at Ubon. He also mentioned that he had fallen headfirst into a sewer and became very ill after that. (In his evidence in chief, Mr Thomas said that he had fallen backwards into the sewer.) He told Dr Carter that a serviceman friend was burned to death in 1966. He also described other events already recorded above.
39. Dr Carter, in 2002, diagnosed post traumatic stress disorder and included in her report as stressors: acting as a transport driver; witnessing casualties of our own and wounded people; being fired upon while driving a petrol tanker; living close to an airport. Dr Carter later added these stressors: threat of serious injury and death when he was bombed while driving a tanker and an engagement when his leg was slashed.
40. In her report of 18 March 2005, Dr Carter makes reference to the incident in which a cook was burned to death. She states that it is not surprising that it was not documented because it was not an Australian. She has made no reference to the fact that in her 2002 report, she had recorded that the person burned had been a friend whereas subsequently he had stated that he did not know the person.
41. Dr Carter when referring to the Thai incident has stated that Writeway had reported that three independent people had reported on this incident but Dr Carter did not include the other relevant comments about these reports in the Writeway document.
42. Dr Carter states that Mr Thomas was accidentally fired on by aircraft machine guns, and this would cause ongoing stress especially after one has had their tanker, as Mr Thomas says, used for target practice.
43. Dr Carter refers to the penile lesion and the current penile disability and comments that these have had a devastating effect on his life. She believes that the penile problems would be more likely to contribute to a generalized anxiety disorder.
44. Dr Carter stated in her later report that when she first met Mr Thomas, his recall of aspects of the trauma were not as great as it is now and that it seems that his memory has intensified over time. She further stated that when she had seen him in 2002, one had to question the role of alcohol in causing his anxiety symptoms, but that now the alcohol is now far more under control and is not itself the cause of the anxiety, as it may well have been in the past. She opined that from the history available to her, Mr Thomas had started using alcohol to cope with emotional stress.
§ Contemporaneous Medical Reports
45. We have spent some time examining the contemporaneous medical records some of which have been included in the T documents and others provided as separate exhibits.
46. In September 1963, (Folio 19 of the T Documents), Mr Thomas was said to be immature and to have an inadequate personality with a mild anxiety state but not to be mentally ill.
47. In August 1966 Mr Thomas was seen by a specialist physician at Ubon. He told the physician that he had been employed in sundry jobs and that he was bored. He said that he drank because he was bored and depressed, that he did not have enough to do. On that occasion there is no mention of any traumatic event such as is now claimed. On that occasion the physician stated that he did not have any psychiatric disability.
48. In September 1966 Mr Thomas was seen by a specialist psychiatrist who confirmed that he did not have any psychiatric problem. Mr Thomas told the psychiatrist that there was nothing wrong with him and that he was drinking heavily in Ubon because everyone else does. The notes also record that he did have an episode of urethritis at the time.
49. The first entry in the service records of Mr Thomas in relation to cracks in the penis was a “venereal case card” dated 14 July 1966. That record stated that there had been a contact four days previously (“condom –perforation”) and that on the day of presentation he also had a urethral discharge. In three subsequent entries between 8 August 1966 and 30 August 1966 by three different medical officers it was recorded that the penile ulcers had developed in July 1966. Mr Thomas had stated that the penile lesions had developed in May but that medical records had been lost. In October 1966 the ulcers were diagnosed as herpes.
50. The medical records indicate that the ulcers did heal temporarily but did tend to recur and on at least one occasion the recurrence was related to further exposure.
51. In 1983 Mr Thomas had been admitted to Princess Alexandra Hospital for assessment with the story that he had tried to shoot himself but had been unsuccessful because the gun would not work. It was considered that the crisis had been precipitated by the possible loss of his invalid pension and a break up with his girl friend. He was assessed at the time as having no evidence of depression or psychosis and not to be actively suicidal.
52. When seen by a psychiatrist, Dr Theodoros, 3 days after admission to Princess Alexandra Hospital, Mr Thomas told Dr Theodoros that he had only gone into hospital for a rest and that he was no longer depressed. The final diagnosis at that time was personality disorder in crisis and alcohol abuse.
53. In January 2001 Mr Thomas saw Dr John Chalk, a psychiatrist. In relation to Mr Thomas’s time at Ubon, Dr Chalk had recorded nothing concerning exposure and soaking with aircraft fuel but Dr Chalk had recorded the incident in which a Thai colonel was said to have shot a guard in the head.
54. Dr Chalk has also recorded that Mr Thomas had told him that he had been nearly blown up on several occasions when his tanker came under friendly fire. Apart from a diagnosis of alcohol abuse, Dr Chalk considered that the applicant had some associated dysthymic symptoms but no major depression.
§ Writeway Research Service
55. Air Commodore J T Owens gave evidence on research undertaken by Writeway Research Service. The report had been based on RAAF records and interviews with other personnel who had served at Ubon at the time in question.
56. In relation to the claim that a friend had been burned to death in a brothel, the research confirmed that the only Australians who were killed at Ubon had been a pilot following a plane crash and an airfield defence guard who had died in a fire at Ubon on 19 November 1966 after Mr Thomas had left Ubon.
57. In relation to the alleged episode in which an aircraft was said to have fired across his fuel tanker, there was no official record of such an incident During cross examination, the Air Commodore said that even if not recorded in the official unit history, he would expect the incident to be recorded somewhere and he could find no record.
58. In the written report, it was also stated that on the occasions when the RAAF Sabre aircraft were put on operational alert while the applicant was at Ubon, no weapons were fired. Also, while it was standard operational procedure for aircraft armed with live weapons to be made live at the end of the runway immediately before take off, they were pointed in a safe direction so that any accidental firing would cause no damage.
59. The report also states that weapons were only carried during times of high alert of which there were four during the applicant’s period of service at Ubon. However, no action on the base arose from these alerts, nor were there any attacks on the base during entire period of RAAF presence at Ubon (Folios 106-109).
60. The report also referred to the claimed Thai soldier incident. Again there is no official record of such an incident. There have been three other claims by veterans of a Thai soldier being shot to death at Ubon. In each case the veteran claimed to have been involved or to have seen the body. In each case the incident is said to have happened at a different location, in one case near the office door of a veteran. The witness said that if such an incident had occurred near the RAAF base then the RAAF would know. He believed that the story was a popular rumour and in his opinion it is unlikely to have happened. It was also stated that two senior retired RAAF officers who served as Officer Commanding of the RAAF contingent in 1966 and 1967 had earlier been interviewed and neither was aware of any such incident having taken place although one officer stated that Thai discipline differed from Australian discipline.
Legislative Background
61. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“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; …”
62. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. There is no issue that the applicant has not rendered operational service.
63. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
64. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly 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.
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.”
65. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.”
66. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
67. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
68. The claimed conditions of alcohol abuse and post traumatic stress disorder are the subject of SoPs.
69. We have to consider whether the contentions of the applicant satisfy the following SoPs:
§ Post Traumatic Stress Disorder: Instruments No 3 of 1999 as amended by Instrument No 54 of 1999;
§ Alcohol Dependence or Alcohol Abuse: Instrument No 76 of 1998;
§ Anxiety Disorder: Instrument No 1 of 2000.
70. The Tribunal observes that where a SoP exists it must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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.”
71. We are satisfied that the evidence before us points to a hypothesis connecting the conditions of the applicant’s operational service. That hypothesis is that Mr Thomas’ conditions were caused by the events that he described. If the events were true then there would certainly be the establishment of the stressors in the SoPs. Apart from the stressors there is evidence in relation to “major illness or injury” or “psychiatric disorder” that are factors in the SoPs.
72. In reaching this conclusion, we have considered all of the material before it, as we must do: see Bull v Repatriation Commission (2001) 188 ALR 756 at [21]; Hardman v Repatriation Commission [2004] FCA 1174 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377.
73. We also emphasise that at this stage of our reasoning we are not concerned with issues of credibility. In Elliott v Repatriation Commission (2002) 73 ALD 377 Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
74. We must now further consider (once again, after taking into account all of the material before us) that the hypotheses referred to above could not be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” and so not reasonable (see Bull (supra) at [18] where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372- 373) that a “reasonable hypothesis” involves more than a mere possibility, and is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
75. We have already mentioned that SoPs have been determined by the RMA pursuant to s 196(2) of the Act in respect of the conditions in question:
§Post Traumatic Stress Disorder: Instruments No. 3 of 1999 as amended by Instrument No 54 of 1999;
§Alcohol Dependence or Alcohol Abuse: Instrument No 76 of 1998;
§Anxiety Disorder: Instrument No.1 of 2000.
76. We must now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me. We emphasis that at this step we are not concerned with making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
§ Anxiety Disorder
77. Under clause 4 of the Anxiety Disorder SoP: Instrument No 1 of 2000 at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran.
78. In Clause 5 the relevant factors that are relied upon by Mr Thomas are factors 5(a)(ii) and (iv): see Applicant’s Submissions, 2 September 2005, p 4.
79. Factor 5(a)(ii) concerns the experience of a “severe psychosocial stressor”: see White v Repatriation Commission (2004) 39 AAR 67. The material in relation to the RAAF Sabre incident would certainly satisfy this requirement for the purpose of considering this third step as enunciated in Deledio.
80. We have also considered factor 5(a)(ii) of the Anxiety Disorder SoP in relation to the fact that his residence was close to fuel depots. As we have earlier mentioned this factor requires the applicant to have experienced a “severe psychosocial stressor”.
81. In examining the fact that his residence was close to fuel depots we have considered the definition of “severe psychosocial stressor” in clause 8 of the SoP.
82. In White v Repatriation Commission (2004) 39 AAR 67, in discussing a similar SoP, Statement of Principles (No 2 of 2000), Spender J (at [30]) remarked:
“In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned”. [See also Stonehouse and Repatriation Commission [2004] AATA 707].
83. Applying these remarks of Spender J to this case it is difficult to see how the experiences of the applicant can be said to be a “severe psychosocial stressor”. At no time was the applicant under any personal attack or threat. The applicant did not experience an event of the severity of the events mentioned in the definition.
84. Factor 5 (a) (iv) of the Anxiety Disorder SoP requires the experience of a “major illness or injury”. In order to establish this factor the illness or injury must occur within the two years immediately before the clinical onset of anxiety disorder: see White v Repatriation Commission (2004) 39 AAR 67 at 72.
85. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
86. In this case there is evidence before us that points to a diagnosis of “generalised anxiety disorder” that was made by Dr Carter in 2005. (Exhibit A2, page 7)
87. However, the reports of Dr Carter do not provide any basis of Mr Thomas suffering from all of the features of a generalised anxiety disorder within the meaning of the definition of “generalised anxiety disorder” during any six month period in the two years that are subsequent to the acute penile problems experienced by Mr Thomas. There are no contemporaneous medical records that support the view that Mr Thomas was suffering from all the cumulative features in the definition.
88. We accordingly do not consider that factor 5 (a)(iv) has been established in this case for the purpose of considering the third step as enunciated in Deledio.
§ Alcohol Dependence or Alcohol Abuse
89. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP: Instrument No 76 of 1998 at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran.
90. In Clause 5 the relevant factor which is relied upon by Mr Thomas in contention is factor 5(a): see Applicant’s Submissions, 2 September 2005, p 4.
91. We have had regard to the evidence of Dr Carter who in her report states that her opinion that Mr Thomas had because of his experiences at Ubon developed a situation described in DSM-IV as “Enduring Personality Change” [T4, p 92].
92. We consider that factor 5(a) is established in this case for the purpose of considering the third step as enunciated in Deledio on the basis of this diagnosis of Dr Carter. We have relied upon her statement that this is a DSM-IV case. A personality disorder of itself would not satisfy DSM-IV.
93. In considering the Alcohol Dependence or Alcohol Abuse SoP we have also considered the evidence of Mr Thomas that his residence was close to fuel depots.
94. We do not consider that this fits into the category of a “severe stressor” within the meaning of that expression in that SoP. Alcohol Abuse: Instrument No 76 of 1998 factor 5(b) and (c) requires that there must be evidence of an applicant “experiencing a severe stressor”. For the purposes of the SoP the expression “experiencing a severe stressor” means that the applicant would have to be confronted with an event which might evoke “intense fear, helplessness or horror”: see cl. 8. The Tribunal cannot conclude that it is a reasonable hypothesis that the relevant events would evoke intense fear, helplessness or horror. There was no injury at the time, and there was also no evidence of any serious injury being committed.
95. The primary submissions of Mr Thomas relied primarily on anxiety disorder and alcohol abuse: see Applicant’s Submissions, 2 September 2005, p 14.
§ Post Traumatic Stress Disorder
96. It is necessary to consider the Post Traumatic Stress Disorder SoP: Instruments No 3 of 1999 as amended by Instrument No 54 of 1999.
97. Under clause 4 of the Post Traumatic Stress Disorder SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran.
98. We have examined factor 5(a) in the Post Traumatic Stress Disorder SoP which concerns “experiencing a severe stressor” prior to the clinical onset of post traumatic stress disorder.
99. This factor has been considered in a number of recent decisions: Stoddart v Repatriation Commission [2003] FCA 334 (Mansfield J); Repatriation Commission v Stoddart (2003) 77 ALD 67 (Full Federal Court); Woodward v Repatriation Commission (2003) 75 ALD 420; Delahunty v Repatriation Commission [2004] FCA 309; and Guy v Repatriation Commission [2005] FCA 562.
100. The material in relation to the RAAF Sabre incident would certainly satisfy factor 5(a) for the purpose of considering this third step as enunciated in Deledio.
101. For the above reasons, we consider that the hypothesis raised by the material before us is consistent with the abovementioned factors of the SoPs, and so by virtue of s 120A(3) of the Act, the hypotheses connecting Mr Thomas’ conditions of alcohol dependence and post traumatic stress disorder with the circumstances of his operational service are reasonable. The disentitling provision of s 120(3) of the Act (which would mean that Mr Thomas’s claim would fail if we had concluded that the relevant hypothesis was not reasonable) does not therefore apply.
102. We now turn to the fourth stage of the process explained in Deledio. This involves our making of findings of fact from the material before us, bearing in mind the provisions of s 120(1) of the Act to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. If we are not so satisfied, Mr Thomas’ claim must succeed by virtue of s 120(1) of the Act. In examining this question, we note that there is no onus of proof (see s 120(6) of the Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424 to 425). We also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at [13], where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
103. The Commission has accepted that Mr Thomas does suffer from alcohol abuse and concerning this diagnosis, there is no dispute. There is dispute however as to when this condition developed and whether it can be attributed to operational service. It has also been claimed that the applicant does suffer from post traumatic stress disorder and possibly an associated anxiety disorder. Further, it has been claimed that these conditions are also due to operational service.
104. In relation to the alcohol abuse, Mr Thomas has confirmed that excessive alcohol intake had commenced early in June 1966. He now claims that he commenced to drink heavily because of concerns about the penile lesions and that the penile changes had commenced soon after his arrival at Ubon. He acknowledges that the first medical entries describing the cracks in the skin of his penis had been made in July 1966 but he claims that earlier records are missing. The Tribunal has examined the medical records in detail and the continuity of the records between the earlier years in Australia, the stamping indicating arrival at Ubon and the July entries would not suggest that there are missing records. In addition there are three entries in the records made by three different medical officers subsequently which all state that the penile changes had commenced in July.
105. In his submissions before us the senior counsel for Mr Thomas submitted that there was no evidence to support the suggestion that the applicant had commenced to drink heavily some time before leaving Australia for Ubon. We accept that the heavy drinking did not commence until after his arrival in Ubon. Counsel also put forward the hypothesis that the applicant had an anxiety disorder prior to the onset of the alcohol abuse and made reference to an entry on 2 August 1966 that he had slight anxiety. Slight anxiety is however not synonymous with an anxiety disorder and we have the clear statements of both a specialist physician and a psychiatrist that the applicant at that time did not have any psychiatric condition.
106. We have considered the fact that Dr Carter had stated in her report that on the basis of probability, it was her contention that the applicant had both post traumatic stress disorder and anxiety disorder when in Ubon. We however prefer the opinion of the specialist psychiatrist who saw the applicant in 1966 over the contention of a psychiatrist who now seeks to make a diagnosis on the basis of events described by the applicant almost 38 years later.
107. In relation to the report of Dr Carter, the Tribunal has considered the various stressors which she has described in support of her diagnosis. She has of course accepted that these events did occur and that they have been accurately described.
Thai Guard shot
108. We have some considerable difficulty in accepting the details of the event as described by the applicant during his evidence in chief. We find incredible that the Thai personnel would take him to their army base and arrange attention for his leg, then give him a “hell of a flogging”, before handing him over to Thai police. We also note that in this account the police then were able to take him to his own bed at his base about 1am without being challenged and without waking more than one person in the 14 person hut.
109. Why after such an event would he not tell his superiors about the incident? We find the excuse that he was too scared to tell his superiors hard to accept. Further to this is the information provided by Writeway Research that there is no record of such an event having occurred. The fact that three other veterans have made a similar claim but for a different location would support the view that it was a popular rumour. It has also been stated that senior army personnel at Ubon at the time had been questioned and had no knowledge of such an incident.
110. Dr Carter has in our view sought to provide some authenticity by referring only to the fact that three independent people have reported the incident but has not included those aspects of the Writeway Report which doubt that the event had occurred.
111. Having considered all the evidence in relation to the Thai guard incident we do not believe that the applicant was a witness to such an event.
Cook burnt to death
112. In her report of 15 March 2005, Dr Carter states that it is not surprising that the incident had not been documented because it did not involve any Australians. Dr Carter has, however, not mentioned her 2002 report in which she had recorded that it was a friend of Mr Thomas and that he had subsequently told the Veterans’ Review Board that the person was an Australian cook.
113. Mr Thomas subsequently said that he did not know the person who was burnt to death. This change in his account of events appears to us to follow the revelation by Writeway Research that only two Australians were killed in Ubon, one having occurred in a plane accident and the other having been killed in a fire after the applicant had left Ubon.
114. We find this claim to be false and the fact that he should make such a false claim, lends further support to our findings that we have made in relation to the Thai guard incident and our later finding about him being fired upon by a taxiing aircraft.
Fired at while in a fuel tanker
115. The account by Dr Carter in her report of 15 March 2005 differs from what Mr Thomas told the Veterans’ Review Board. On that occasion he said that there was an accidental discharge from a parked vehicle. Mr Thomas in his evidence before us said that a taxiing aircraft had accidentally fired across his truck.
116. Again there is no record of such an incident and Air Commodore Owens stated that he would expect such an incident to be recorded somewhere and he could find no such record. He also stated that no weapons were fired on any operational alerts while the applicant was at Ubon. Further, it was standard procedure for aircraft armed with live weapons to be made live at the end of the runway immediately before take off. The weapons were also pointed in a safe direction so that any accidental firing would not cause damage. Again the applicant did not make any report about this claimed incident.
117. We do not accept the evidence of the applicant that such an event had occurred.
Carrying of weapons for self-protection
118. Mr Thomas told Dr Carter that he carried weapons for his own protection against insurgents. During cross examination however he admitted that there was no insurgent activity during his time at Ubon. This discredits his evidence that an armed man jumped onto his truck and was pushed off. His statement that he would have carried weapons has also been challenged.
Penile lesion
119. Mr Thomas now claims that the penile ulceration had been caused by his soaking with aviation fuel. Based on that statement Dr Jardine in his evidence said that it was likely that aviation fuel had been wholly or partly responsible for the penile condition.
120. A review of the records however indicates that at no time did Mr Thomas make any mention of being soaked with aviation fuel until his appearance before the Veterans’ Review Board in 2003. There is no mention in his medical records or in the 2001 report of Dr Chalk or indeed in the 2002 report of Dr Carter.
121. Mr Thomas claimed that the skin of his abdomen, thighs and bottom had been affected by the fuel with peeling of the skin. There was no mention of such skin changes in any of the medical examinations done while he was at Ubon. As far as his feet were concerned he had earlier accepted the more likely diagnosis of tinea but now claims that the fuel was responsible for the feet condition.
122. Dr Jardine recorded in his written report that the applicant had had episodes of gonorrhea and non specific urethritis in 1963 and 1964 but he confidently stated that these infections were not relevant to the ulcers and condition that had developed in Ubon. It is true the earlier infections were not related to the ulcers but we consider that the fact that he had been exposed to sexually transmissible diseases and that he had had such conditions is most relevant.
123. We also consider that the written report of Dr Jardine was written upon the assumption that in having sexual contact with a local Thai woman, Mr Thomas had “used condoms issued by [the] RAAF” (Exhibit A2). In fact as we earlier mention, at [49], the “venereal case card” dated 14 July 1966 had recorded that there had been a contact four days previously and that the condom was perforated.
124. It was only when questioned by the Tribunal that Dr Jardine acknowledged that when the applicant had presented with the penile ulcers that he also had urethritis at the time and that such urethritis could have been a sexually transmitted disease. At that time, Mr Thomas had confirmed sexual activity a few days before. The contemporary medical records record that his condom had broken. Dr Jardine also knew that the applicant had admitted having had sexual contact with a local Thai woman on three occasions in May/June1966.
125. There were also reports in the documents that the penile lesions had originally cleared up within a month of first being reported but the ulcers continued to heal and then recur at intervals during 1966 and 1967. There were reports that recurrences on at least some occasions had recurred following sexual intercourse. Dr Jardine agreed that such activity could slow the healing of the penile lesions.
126. While Dr Jardine had favoured exposure to aviation fuel as the more likely cause for the penile lesion, we have difficulty in accepting this opinion for a number of reasons. The applicant had had venereal disease in the past and his private activities in Ubon not only exposed him to sexually transmitted disease but he also had evidence of such with the urethritis.
127. Then there was the subsequent diagnosis of genital herpes. While Dr Jardine did not favour the diagnosis of herpes, he did, in reply to the Tribunal, agree that he could not rule out the diagnosis and he also agreed that the subsequent serology tests indicated that there had been exposure to the herpes simplex virus at some stage.
128. In cross examination Dr Jardine agreed that he had not been able to provide any reports concerning exposure of humans to the aviation fuel JP4, used at Ubon.
129. We believe that medical service personnel at Ubon would not be unfamiliar with sexually transmitted disease and we believe that there is sufficient evidence to accept that the ulcers had been correctly diagnosed as being due to herpes and that the suggestion that they were due to exposure to aviation fuel, when no other part of the body was involved, is at best tenuous.
130. Finally in relation to the penile problems, a review of the medical records refers to ulcers on part of the penis and there is no record to support the claim of Mr Thomas that his penis had become hugely swollen and had split open.
131. The records indicate that the penile ulcers did heal for a time but that they did recur at intervals between July 1966 and December 1967. No medical record has been provided to indicate that the ulcers had recurred subsequently to 1967. There is the record of Dr Gallagher in 1999 that Mr Thomas’ penis is normal. There is also a record from Princess Alexandra hospital in 1977 when the penile area was examined in relation to a possible neurological defect following an accident. No abnormality of the penis was recorded at that time.
132. Having considered all these factors in relation to the penile problems, the Tribunal does not accept that the penile problems do meet the criteria for a severe stressor nor for the reasons set out above does the Tribunal accept that any of the other stressors used by Dr Carter met the criteria for a severe stressor. It is also relevant to note that with the exception of the penile problem, none of the alleged stressors set out by Dr Carter had been reported to his superiors at the time.
133. As we have already noted, the diagnosis of alcohol abuse is accepted. In determining causation, the Tribunal prefers the opinion of the psychiatrist who saw Mr Thomas in 1966 that he did not have any psychiatric disease rather than the 2005 opinion of Dr Carter.
134. As we have determined that he did not have a psychiatric disorder at the time of onset of the alcohol abuse and that, for the reasons set out above, he had not experienced a severe stressor within two years before the clinical onset of alcohol abuse, he does not meet the requirements of the SoP for the condition to have been due to operational service.
135. In 2001 Dr Chalk opined that apart from alcohol abuse, the applicant did have some associated dysthymic symptoms but no major depressive illness. In 2002 Dr Carter made a diagnosis of post traumatic stress disorder on the basis of some incorrect facts such as, that his leg had been slashed and his tanker had been bombed. In her more recent report Dr Carter has diagnosed both a generalised anxiety disorder and post traumatic stress disorder.
136. Dr Kingswell has diagnosed that Mr Thomas has severe personality disorder. This is consistent with the opinions expressed by other doctors since he had first joined the service. On 30 July 1963 a psychiatrist noted the domestic problems of the applicant and opined that the applicant suffered from an inadequate personality, had a childish appraisal of himself in relation to reality and considered that the applicant would not be likely to render efficient service (folio 23). On 15 August 1963 it was recommended that the applicant be downgraded from Fit Class 1 to Fit Class 2 due to “inadequate personality” (folio 21). We observe that prior to his service at Ubon, on 13 August 1963, Mr Thomas signed a discharge document stating that he had “nervous tension caused from many problems whilst in the service”.
137. Dr Kingswell did not agree with the diagnosis of post traumatic stress disorder. We agree with his conclusion and find that Mr Thomas does not have post traumatic stress disorder.
Conclusion
138. We do not consider that Mr Thomas is a credible witness. We consider that he was prepared to change his account of the relevant events if it would advantage him. This is particularly apparent in the case of the fire at the Thai brothel.
139. We do not consider that he was truthful at all in referring to the armed man jumping on his truck, the fire at the Thai brothel, the Thai guard incident or the RAAF Sabre aircraft incident. Having regard to all of the evidence we consider, beyond a reasonable doubt, that none of these events ever happened. We have not lightly made this finding.
140. We have also considered whether this veteran’s symptoms could entail some other diagnosis. We have had regard to the decision in Benjamin v Repatriation Commission [2001] FCA 1879 at [47] where the Full Federal Court referred to the decision-maker’s inquisitorial role. We do not consider that any other diagnosis is appropriate after an examination of all of the material.
Conclusion
141. In all of the circumstances, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition of alcohol abuse were related to Mr Thomas’ operational service. We consider that Mr Thomas does not suffer from post traumatic stress disorder.
Decision
142. For the above reasons, we affirm the decisions under review.
I certify that the 142 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr KP Kennedy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 1 and 2 August 2005
Date of Decision 29 September 2005
Counsel for the Applicant Mr J W Greenwood QC
Solicitor for the Applicant Streeting Haney
For the Respondent Mr J Kelly, Departmental Advocate
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