Thomas and Repatriation Commission

[2005] AATA 184

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/649

VETERANS' APPEALS DIVISION		)
Re		JOHN THOMAS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member PM McDermott

Date7 March 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

PM McDermott
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pensions benefits and entitlements - whether applicant’s accepted conditions of generalised anxiety disorder and alcohol dependence/abuse are war caused – incident not a severe psychosocial stressor – incident not a severe stressor – decision under review affirmed.

Veterans’ Entitlement Act 1986 s119, 120, 120B.

White v Repatriation Commission (2004) 39 AAR 67; [2004] FCA 633
O’Neil v Repatriation Commission [2001] FCA 1492
Delahunty v Repatriation Commission [2004] FCA 309

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

7 March 2005 Senior Member PM McDermott

INTRODUCTION

1.      The applicant in this matter, Mr John Thomas, has operational service as a national serviceman in Malaya from 10 August 1966 until 25 August 1967.  He also has eligible defence service in the Australian Army from 7 December 1972 to 12 January 1982.

2.      The applicant has accepted service-related disabilities relating to an internal derangement of his right knee, allergic rhinitis and bilateral sensor neural hearing loss with tinnitus. 

3.      On 4 September 2002 the applicant lodged a claim with the respondent for “generalised anxiety disorder” and “substance dependence - alcohol”. On 12 February 2004 a delegate of the respondent determined that the applicant’s conditions of generalised anxiety disorder and alcohol dependence or abuse were not war caused and this decision was affirmed by the Veteran’s Review Board on 1 June 2004.  For his claim to be accepted the applicant’s conditions must be war caused in relation to either operational or eligible defence service.

The 1981 Incident

4.      The applicant gave evidence that in mid 1981 he was driving to work at 7am in order to attend a gym parade at Enoggera Barracks.  He was proceeding along Enoggera Road when a cyclist went immediately in front of his vehicle. The applicant was proceeding at a speed of about 50 km per hour. 

5.      The cyclist was propelled though the windscreen of the applicant’s vehicle and, after hitting the steering wheel, fell to the road away from his sight.  The applicant then thought that he had killed the cyclist.  After he stopped he saw the cyclist who was “spinning”.  The applicant called the police who knew of the cyclist and who then took the cyclist away.

6.      This incident does not appear to have been documented in any available service record or police report.  The absence of any service record does not  necessarily disadvantage the applicant: see Veterans’ Entitlement Act 1986, s119 (1)(h)(ii). I accept that the incident occurred and that it occurred while the applicant was performing eligible defence service.

7.      After the applicant arrived at work one of his work colleagues had commented that he looked like he had “seen a ghost”.  The applicant stated that the work colleague had given him a cup of tea.  The Senior Sergeant Major (SSM) of the unit had also gone “crook” at him for failing to attend his gym parade.  The applicant considered that the SSM was unreasonable.

8.      The applicant stated that Windscreens O’Brien attended his unit to repair the windscreen of his vehicle.  He engaged them to repair the vehicle after he spoke to his wife.

9.      The applicant also stated that after this incident the relationship that the applicant had with his SSM deteriorated.

10.     The applicant left the Army in January 1982 in the year following the incident. It would seem that the applicant left the Army as a result of the expiry of a term of engagement.  The service documents indicate that the retirement from the Army was voluntary.  He did not then seek re-engagement.

Consequences of the Incident

11.     The applicant in his evidence also stated that after the incident he had drunk too much.  Every night he would drink half a dozen cans of heavy beer and on the weekend he would drink wine and beer.  He stopped drinking after 2002 when he received advice from his specialist.

12.     This is supported by the evidence of Mrs Patricia Thomas, the wife of the applicant, who stated that after the incident he was a changed man.  She confirmed the increased alcohol use.  She stated that after the incident  “John had begun to drink a little more alcohol each day, not going out to drink with his mates but mainly at home”.

13.     The medical evidence in this matter consisted of medical reports from Dr Janis Carter and Dr Michael Leong.  Both medical practitioners have diagnosed that the applicant as having an anxiety disorder with an onset straight after the incident with the cyclist in 1981.

14.     Dr Carter, a psychiatrist, in a report dated 29 September 2002 stated that the incident with the cyclist in 1981 was “one major stressful event which has effected his adjustment to life”.  Dr Carter concludes that the veteran developed a generalised anxiety disorder which was complicated by alcohol abuse and then alcohol dependence.

15.     Dr Carter in her report concludes that the applicant started to drink alcohol to settle his nerves and that he continued to due this as a method of controlling his anxiety.

16.     Dr Carter considers that the incident with the cyclist in 1981 “caused him substantial distress and he thought that he had killed this man and there was a dramatic event like his coming through the windscreen of the car”.

17.     The respondent acknowledges that the applicant suffered stress at the time of the incident with the cyclist in 1981.  However, the respondent contends that the incident with the cyclist in 1981 does not conform to the applicable Statements of Principles that have been approved by the Repatriation Medical Authority.

Statement Of Principles (No 2 Of 2000)

18.     At issue in this case is whether the incident with the cyclist in 1981 was a “severe psychosocial stressor” within the meaning of Statement of Principles (No 2 of 2000): see Veterans’ Entitlement Act 1986, s 120B.

19.     In White v Repatriation Commission (2004) 39 AAR 67, in discussing 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”.

20.     In this matter the Veterans’ Review Board considered that the incident with the cyclist in 1981 was not a “severe psychosocial stressor”.  The Board also concluded that the incident with the cyclist resulted in the applicant developing a generalised anxiety disorder with the next 12 months.

21.     However, the Board concluded that the motor vehicle accident was relatively minor and not of the severity of the events mentioned in the definition.  The Board stated that these events were such as to severely compromise a person’s health or social and financial supports.  The Board stated that the examples given in the definition all involve occurrences affecting either the person or a close friend or relative.

22.     I find, in conformity to the finding of the Board, that the incident with the cyclist in 1981 was not a “severe psychosocial stressor” within the meaning of Statement of Principles (No 2 of 2000).  Having regard to the objective standard mentioned by Spender J in White v Repatriation Commission (2004) 39 AAR 67, I point out that the incident in 1981 did not result in any physical injury to the cyclist.

23.     I mention that the case of O’Neil v Repatriation Commission [2001] FCA 1492 concerned an earlier Statement of Principles with quite a different standard than that required by Statement of Principles (No 2 of 2000).

Statement of Principles (No 77 of 1998)

24.     I also have to consider for the purposes of Statement of Principles (No 77 of 1998) whether the incident in 1981 was not a “severe stressor” within the meaning of factor 5 (b): see Veterans’ Entitlements Act 1986, s 120B.

25.     The applicant, in the applicant’s statement of facts and contentions, submitted that the hitting of the cyclist “was a severe stressor and caused the alcohol abuse and dependence”.

26.     The report of Dr Carter states that the stressor that the applicant had was the motor vehicle accident where he had hit a teenager on a bike and that he witnessed the casualty of his own making.

27.     The report of Dr Carter also states that the severe stressor was a threat of serious injury or death to the young man that he’d hit on the bicycle and this caused in the applicant “intense fear, helplessness and horror”. However, this conclusion of Dr Carter, which mirrors the actual wording in factor 5 (b), does not explain the basis for this conclusion.

28.     The applicant did not call Dr Carter as a witness.  It is commonplace in this Tribunal that medical specialists can give evidence by telephone.  It is, of course, not for this Tribunal to stipulate the carriage of a case for the applicant.  However, the Tribunal was not advised of any reason why Dr Carter was not available to give evidence.  Perhaps, more importantly, Dr Carter was not available to be cross-examined by the applicant on her conclusion.

29.     The definition of “experiencing a severe stressor” is contained in paragraph 9 of that Statement of Principles.

30.     In considering the definition of “experiencing a severe stressor” I am mindful of the observations of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 (at [28]) that considerable latitude must be extended when considering whether a person has experienced a severe stressor. His Honour pointed out (at [27]) that the definition must be approached in a manner which is not unduly restrictive. Whilst His Honour was then considering another Statement of Principles (SOP 3/1999), I consider that I should adopt such an approach on this occasion.

31.     One of the requirements of the definition is that the relevant “event or events might evoke intense fear, helplessness or horror”.  On this basis I have concluded in accordance with principle 3 in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 that the experience of the applicant is not consistent with the “template” in the Statement of Principles.

32.     I find that the particular incident in 1981 was not an event that might evoke intense fear, helplessness or horror.  If the event was a threat to the physical integrity of the cyclist, it is not a reasonable hypothesis that the event would evoke intense fear, hopelessness or horror. The incident was of short duration, there was no injury at the time, and there was also no evidence, for example, of any blood on the vehicle which would be consistent with a serious injury being committed.

33.     In stating that the incident was of short duration, I do not want to be taken to state that every incident of short duration could not evoke intense fear, helplessness or horror. One may readily envisage an event of short duration that would evoke intense fear, helplessness or horror.

34.     Another requirement in the definition is that of “intense” fear helplessness or horror. I find that the event was not of such a quality.

35.     I accordingly find that for the purposes of Statement of Principles (No 77 of 1998) the incident in 1981 was not a “severe stressor” within the meaning of factor 5(b).

Decision

36.     The Tribunal affirms the decision of the Veterans’ Review Board.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr PM McDermott, Senior Member.

Signed:         Camille Banks
  Associate

Date/s of Hearing  14 January 2005
Date of Decision  7 March 2005
Counsel for the Applicant         Ms B Carter-Nicoll
Solicitor for the Applicant          Sciaccas, Lawyers & Consultants
Solicitor for the Respondent     Mr M Smith, Departmental Advocate