Thompson and Repatriation Commission
[2001] AATA 874
•27 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 874
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/65
VETERANS' APPEALS DIVISION )
Re garry james thompson
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member
Date27 September 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/65
)
VETERANS' APPEALS DIVISION )
Re: GARRY JAMES THOMPSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member
Date 27 September 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, GARRY JAMES THOMPSON, is entitled to payment of pension for incapacity occasioned by the war-caused disease of Anxiety Disorder as and from 24 June 1998; and
2.This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Claim for Post Traumatic Stress Disorder (PTSD). Hypothesis that PTSD caused during non-operational service was aggravated by operational service. Requirement that caused facts be negatived beyond reasonable doubt.
Veterans' Entitlements Act 1986 – ss120 (1), (3) and (6); s120A
Repatriation Commission v Deledio 83 FCA 82
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Gorton [2001] FCA 1194
Treloar v Australian Telecommunications Commission 26 FCR 316
Johnson v The Commonwealth 43 ALR 559
Casarotto v Australian Postal Commission 86 ALR 399
REASONS FOR DECISION
Senior Member M D Allen Dr M E C Thorpe, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: (Kwai-Ling Wong)
..................................................................................……………………………….Associate
Date of Hearing 27 September 2001
Date of Decision 27 September 2001Counsel for Applicant Mr M T Vesper
Advocate for Respondent Mr S Moddar, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/65
By MR M.D. ALLEN, Senior Member;
Dr M.E.C. Thorpe, Member
GARRY JAMES THOMPSON and REPATRIATION COMMISSION
SYDNEY, THURSDAY, 27 SEPTEMBER 2001MR ALLEN: By application made 13 January 2001 the applicant sought review of a decision by the respondent Repatriation Commission made 19 February 1999 refusing his claim to have the incapacity of post traumatic stress disorder attributed to his war service. As this matter relates to operational service of the applicant veteran, that operational service being a brief period of attachment in South Vietnam for one month between 27 May 1968 to 26 June 1968.
The standard of proof in this matter is that prescribed by subsections (1) and (3) of section 120 of the Veterans Entitlements Act 1986 (as amended). Those particular subsections state, inter alia, that a claim in respect of the incapacity from injury or disease of a veteran that relates to operational service rendered by the said veteran the Commission, and hence this Tribunal, shall determine that the disease was a war caused disease unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
The Tribunal will, however, be deemed to be satisfied beyond reasonable doubt if the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the person. Section 120A of the said Act provides that a hypothesis connecting a disease contracted by a person in the circumstances of his or her particular service will only be reasonable if, there being a so-called statement of principles in force, the hypothesis conforms with that statement of principles. Subsection (6) of section 120 provides that neither party to this review bears any onus of proof.
The manner in which the Tribunal should approach its task in circumstances such as the present where there is in fact a statement of principles was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97. Those principles are now well known and we see no particular reason to recapitulate the particular passage in these reasons. In Budworth v Repatriation Commission 2001 FCA 317 Madgwick J stated that:
The duty of the Tribunal is to consider whether a disease exists and the Tribunal is not limited in its consideration to any
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particular disease claimed by the veteran.
That statement of course must be taken with regard to certain practicalities, however, so far as applicable to this case although the veteran applied to have the condition of post traumatic stress disorder recognised as war caused, there is a diagnosis of anxiety state and the Tribunal must therefore consider that particular disease. The Full Court of the Federal Court in Repatriation Commission v Gorton 2001 FCA 1194 modified the principles stated in Repatriation Commission v Keely 98 FCR 108 so that the situation with regard to statements of principles now appears to be following Gorton that the Tribunal must first consider the statement of principles currently in force and if the veteran cannot succeed under that particular statement of principles, then the Tribunal can go on and consider whether the veteran would succeed or not under the statement of principle in force at the time the Repatriation Commission made its original decision in the matter.
In this case having regard to the now diagnosed condition of generalised anxiety disorder there is in force currently a statement of principles being instrument number 1 of 2000 which is dated 28 January, 2000. That is the instrument which we will have regard to first. At the time the Repatriation Commission made its decision the instrument in force for generalised anxiety disorder was instrument number 48 of 1994. For reasons which we will state later we do not consider it necessary to have regard to that particular statement of principles.
The applicant operational service was that of a clerk with 9 Squadron RAAF stationed at Vung Tau Airfield. His duties it would seem were predominantly clerical. However, he did have some other duties such as accompanying civilian labourers from the airfield when they were driven from the airfield back into Vung Tau at the end of a day's work. He would ride alongside the driver of that vehicle being armed as an escort in case there was any attack against that vehicle. We would only say that anybody who knows anything about the war in Vietnam would realise that a truck full of civilians who were working at an allied air base would be an attractive target for members of the Vietcong.
The applicant also gave evidence as to other matters which exercised his mind whilst he was in Vietnam. But before dealing with those the evidence is that any anxiety which he now suffers had its genesis whilst he was serving in Malaya. The applicant was posted to Butterworth in Malaya arriving there according to his record of service at document T3 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 on 20 September, 1967. At his posting to Butterworth he was accompanied by his wife and two infant children. During the month
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©Auscript Pty Ltd 2001of November 1967 the applicant, his wife and children, set out one day to travel to the dwelling of a friend in the RAAF, a Mr Bleakley. The Bleakley's married quarter was on Penang Island and that involved the applicant and his family journeying by car from the Butterworth base to a ferry which then transported them to Penang Island and it was then their intention to travel further by car to the Bleakley's married quarter.
When they set out from Butterworth there was no indication to them that anything untoward was happening although there had been earlier periods of civil unrest and curfews had been imposed at the Butterworth base. On this particular day, in the month of November 1967, upon arrival at Penang Island and departing the ferry they found that they were in the midst of a civil disturbance. He there saw what he termed a mass hysteria amongst the local community. People were carrying batons, weapons and you could also see some had firearms. There were Ghurkha and Malayan troops assisting the Malaya police in attempting to restore order and they were escorted off the ferry but noticed either side of the roadway there appeared to be a riot out of control.
They were then able to exit from the ferry port under escort and were then able to drive under escort they said to the Bleakley's married quarter, some 15 kilometres away. During the time whilst departing from the ferry the applicant stated that his wife was screaming. She thought they were all going to be killed. After arriving at the Bleakley's married quarter they went inside, the applicant told his story to Mr Bleakley. He and Mr Bleakley then set off down the road to see what might be happening. They were stopped by a civil policeman and he there saw what he understood to be a civilian who had been attacked and both the civilian and his motor cycle were there on fire. They were turned around and they then had to spend some two days as enforced guests of the Bleakley's at their married quarter as a curfew had been put in place.
So far as these events in Malaya are concerned they have been corroborated in a statement by Mr Bleakley which became exhibit A2 in these proceedings. I would also refer to the historical report by Mr Conent of Riteway Research Service dated 29 August, 2000. In that report the following is stated:
The research conducted for this report shows:
(a) There was serious rioting on Penang Island in November, 1967.
(c) Serious civil unrest occurred.
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(d) It could be said that a climate of conflict existed.
(e) The event of a man on a motor bike being set on fire
could have occurred. The riots were quite vicious.
Given the statements there set out and the corroboration by Mr Bleakley, it would be difficult to say that the Tribunal be satisfied beyond reasonable doubt that the events sworn to by the applicant this morning did not occur. The applicant then said that he, indeed his wife as well, were material effected by what they had seen. However, in May of 1968 he was sent on a short term attachment to 9 Squadron at Vung Tau in the Republic of South Vietnam. Prior to going to Vietnam, the applicant had noticed that his intake of alcohol had increased as he found it was the only way he could cope with problems in his mind resulting from what he had witnessed on Penang Island.
At Vung Tau it is difficult to give an accurate picture of what the applicant experienced. Certainly the applicant has not assisted his case by in various letters to the Repatriation Commission and in statements to psychiatrists of what can only be described as exaggerating what he experienced. For example, in a document which accompanies his application to the Commission and is found at page 24 of the section 37 documents, he says:
During my Vietnam service I was subjected to nightly rocket attack at Vung Tau. Dangerous in that roads were subject to road mines.
He expands on this at document T8:
I can only state that on the night of my arrival in Vung Tau that the base was subject to rocket attack and further that it was not uncommon to experience on a regular basis explosions from mortar attacks to surrounding areas around the base.
He also speaks of a serviceman at Vung Tau who was killed by a mine the night before he was due to go home. In evidence today he conceded that the Vung Tau air strip and base was not subjected to any attack on the night he arrived and that he was not subjected to nightly rocket attacks. There is a further report at document T9 which to put it bluntly, gives the lie to the allegations by the applicant. Document T6 is a report by a psychiatrist, Dr Pusic, dated 2 February 1999. In that report Dr Pusic took a history as follows:
He told me that he always felt apprehensive as the roads in the area where at all times subject to being mined by the enemy. Mr Thompson also told me that on the first day of arrival at Vung Tau
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the base was rocketed. Mr Thompson was subjected to several further rocket attacks during his stay at Vung Tau.
We will say now that the reports of Dr Pusic are not accepted in that the history he was given by the applicant is now acknowledged by the applicant to be false. The history of the civil uprising in Malaya was not taken in any detail by Dr Pusic and one might have thought that given the emphasis that the applicant now places on these events a complete history would have been provided to Dr Pusic. This is not to say, however, that the applicant, having experienced the events in Malaya may not have felt a degree of apprehension in Vung Tau, particularly as his wife and children remained at Butterworth rather than being returned to Australia whilst he was absent in South Vietnam.
The applicant was examined by Dr Williams psychiatrist at the request of his solicitors and Dr Williams' report of 7 September 2001 became exhibit A3 in these proceedings. In that report Dr Williams says, relating to the applicant's service in Vung Tau:
Although his six weeks there were basically uneventful and his duties involved clerical admin work on the base and occasionally escorting civilian personnel back to the township, he found he did not sleep well any night. The thought of what could happen played havoc with him. He now sees he was quite isolated there. He was attached as an individual, did not know any of the air force crew there when he went and the stories he heard of minefields in the area and bombs reinforced his fears.
We would interpose there to say that it is true that in April of 1968 there was a rocket attack at the Vung Tau airfield and as the applicant gave evidence today, there were still RAAF personnel there who had experienced that attack. It is conceivable, therefore, that what they told him played upon his mind. It would appear also that Dr Williams got a more accurate history than Dr Pusic. Dr Williams concludes his report by saying:
On my examination I would agree with Dr Lewin. In my opinion he meets DSM4 criteria for generalised anxiety disorder with co-morbid alcohol dependence, although he does demonstrate some symptoms of post traumatic stress disorder.
Dr Williams continues:
He first experienced significant symptoms of anxiety soon after witnessing the aftermath of the riot in Penang in 1967. His subsequent albeit short detachment to South Vietnam was, for him, quite stressful, given his mental state, anxiety about being there,
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worry about his wife and children back in Malaysia and isolation. Reportedly his condition has been chronically with him since then, thus he may have had a predisposition to develop an anxiety disorder which was precipitated by witnessing the events in Malaysia. Witnessing such an event would meet the repatriation medical authority's statement of principles definition of both severe psychological stressor and severe stressor and subsequently aggravated by his perception of the level of danger of his attachment in Vietnam and fear for his wife. As such, his experience there over all could qualify as a severe psychological stressor.
Dr Lewin has issued several reports to the respondent after having interviewed the applicant. In his final report dated 18 January 2001, exhibit R5, Dr Lewin says:
Mr Thompson reports that he felt anxious and apprehensive when transferred to Vietnam and that his state of apprehension was magnified by his fears for the safety of his family at Butterworth. There was no history of any specific event or stressor apart from the serviceman's transfer to Vietnam. However, when one considers his history this event could be construed as an occurrence which evoked feelings of anxiety or stress. In my experience this sort of occurrence would generally give rise to a transient increase in worry and fear rather than giving rise to a long term psychiatric illness. However, it is conceivable that in a vulnerable individual a stressor could give rise to a long term condition. I was also given information with regard to Mr Thompson's short period of service in Vietnam. There is little doubt in my mind that the form of stressor must have been a much more intrusive and distressing experience. Grant that such an experience had already given rise to a mental condition and anxiety disorder, it is conceivable that the latter stressor could have caused a worsening of an already established condition.
As stated earlier, the current statement of principle in relation to anxiety disorder is instrument number 1 of 2000. In that particular instrument the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of personal relevant service are:
5A(5) experience a severe psycho-social stressor within the two years immediately before the clinical worsening of anxiety disorder.
Paragraph 5A(5) applies to a material contribution to or aggravation of anxiety disorder. The instrument goes on to define severe psycho-social stressor as meaning an identifiable occurrence that evokes feelings of substantial distress in an individual, for example
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being shot at, death or serious injury of a close friend or relative, assault including sexual assault, major illnesses or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. As said earlier and indeed as recognised by the psychiatrists in this matter, being caught up in a riot where deaths occurred would certainly seem to come within the definition of severe psychological stressor.
So far as aggravation is concerned, we would have regard to what was said by the High Court in Johnson v Commonwealth 43 ALR 559. Although that was a workers compensation case the concepts of aggravation are relevant to the current. At 43 ALR 565 the majority said:
In this setting it is natural to suppose that parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity.
We would refer also to the discussion of what constitutes an aggravation by his Honour Hill J in Casarotto v Australian Postal Commission 86 ALR 399. As to any material contribution, as was pointed out by the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission 26 FCR 316 at 323, after speaking of a contributing factor the court said:
The same applies where the complaint is not one of initiation of a condition but of its aggravation in the sense of making it worse. In all cases the question is whether there has been a contribution. Consistently with what was said by Windeyer contribution does not require that the contributing factor be a cause sine qua non. The but for test is not appropriate, nor is the causa causans or real effective cause or approximate cause formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth be part of the cause. If they are not then they do not contribute.
They then went on to say:
The use of the word "material" served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. However, once the link is established it matters not that the contribution be large or small.
We would also point out that unlike the statement of principle for Post Traumatic Stress Disorder, when one speaks of an aggravation
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of an anxiety disorder, subjective apprehension is enough to qualify and it seems to us that whereas the applicant has exaggerated his service of Vung Tau, we cannot be satisfied beyond reasonable doubt that the events in Malaya didn't happen. In Vietnam there were events such as the transportation of civilians which would give rise to apprehension. There was apprehension arising from the very fact of his posting to Vietnam.
He was aware that a rocket attack had taken place on the air strip. He was concerned about his family who had been left in Malaya and although not stressed by the applicant, it would certainly appear that he was ill-trained for any active service. The sudden posting of the applicant from a clerk's position in Malaya to Vung Tau can be contrasted with the attitude the army took to all persons who went to Vietnam. They had to undergo a course at the jungle training centre, Canungra, before on-posting to Vietnam.
The applicant, it would appear, was simply plucked out of an office in a peace time situation in Butterworth and deposited into a war zone. It is understandable in those circumstances he would have some fears and apprehension. Therefore it seems to us that the applicant complies with the statement of principles in that he had an anxiety state caused by events on Penang Island and that was aggravated, in the sense of being made worse, by indeed the very fact of his posting to Vietnam and certainly by the incidents of his services there.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof that the applicant is entitled to pension for the war caused disease of anxiety state with effect from 24 June 1998. The matter is remitted to the respondent, Repatriation Commission, in order that it might assess the degree of the rate of pension to be paid for incapacity occasioned by war caused or defence caused injuries and diseases.
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