Warren and Repatriation Commission
[2006] AATA 605
•7 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/95
VETERANS' APPEALS DIVISION ) Re MICHAEL ANTHONY WARREN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date7 July 2006
PlaceBrisbane (Heard in Townsville)
Decision The decision of the Tribunal is that:
1. the decision of the Repatriation Commission dated 21 October 2003 is set aside;
2. in substitution of that decision it is determined that the applicant’s conditions of post traumatic stress disorder and alcohol dependence are each war-caused diseases within the meaning given to that expression by s 9 of the Veterans’ Entitlements Act 1986 with effect from 15 July 2002;
3. the matter is remitted to the Repatriation Commission for determination of the rate of pension.
..............................................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – experiencing a severe stressor - post traumatic stress disorder war-caused – alcohol dependence war-caused – decision set aside.
Veterans’ Entitlements Act 1986 s9, s 196B(2)
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
7 July 2006 Deputy President P E Hack SC INTRODUCTION
1.On 15 October 2002 Mr Michael Warren made a disability claim under the Veterans’ Entitlements Act 1986 for conditions identified as post traumatic stress disorder and alcohol abuse/dependence. The claim was rejected by the Repatriation Commission. That rejection was affirmed by the Veterans’ Review Board.
2.Mr Warren seeks a review in this Tribunal of the decision to refuse the claim.
THE ISSUES
3.In the course of the hearing, and as a consequence of concessions made, it has been possible to identify the issues that fall to be determined as these,
(a) is Mr Warren’s admitted post traumatic stress disorder war-caused?
(b) does Mr Warren suffer from alcohol abuse or dependence?
(c) if Mr Warren suffers from alcohol abuse or dependence, is it war- caused?
BACKGROUND
4.Mr Warren served in the Australian Regular Army between 1963 and 1972. He saw operational service in South Vietnam between January 1971 and March 1972 with the 17th Construction Squadron Workshop and 198 Works Engineers. Mr Warren was based in Nui Dat when he arrived in South Vietnam and then in Vung Tau in August 1971. He went back to Nui Dat in September 1971 and from November 1971 to March 1972 he was based in Van Kiep.
5.On his discharge from the Australian Regular Army in June 1972 Mr Warren held a rank of Sergeant.
WAS MR WARREN’S POST TRAUMATIC STRESS DISORDER CAUSED BY OPERATIONAL SERVICE
6.At the outset of the hearing there was an issue as to whether Mr Warren was properly to be diagnosed as suffering from post traumatic stress disorder however in the course of submissions Mr Stoner, who appeared for the Commission, conceded that diagnosis. In my view that concession was rightly made.
7.In the circumstances of this case, where Mr Warren has rendered operational service, the issue of whether post traumatic stress disorder was caused by operational service is to be decided by reference to the four step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82 at pages 97-98.
8.The first step requires me to consider all the material and to determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Warren. The hypothesis put forward here by Mr Honchin of counsel who appeared for Mr Warren is that he was involved in four events – the confrontation with the South Vietnamese Army guard, the incident of unauthorised discharge, the Ngai Giao incident and the Bridge 6 journeys - which he says involved the threat of death or serious injury to him and which ultimately gave rise to the condition of post traumatic stress disorder.
9.In my view the material does point to such a hypothesis.
10.The next step requires me to ascertain whether there is in force a Statement of Principles under s 196B(2). There is a Statement of Principles for post traumatic stress disorder.
11.The third step requires me to form an opinion whether the hypothesis raised is a reasonable one, that is to say, whether the hypothesis fits, or is consistent with, the template to be found in the relevant Statement of Principle.
12.Paragraph 5 of the Statement of Principles for post traumatic stress disorder sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of a person’s relevant service. Relevantly for present purposes the factor in paragraph (a) is described as experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. There is no suggestion here that Mr Warren’s post traumatic stress disorder pre-dated his service in Vietnam so the temporal element fits.
13.The expression experiencing a severe stressor is defined as meaning that the person experienced, witnessed, or was confronted with, an event or events that involved actual or threat of death or serious injury, or threat to the person’s, or another person’s, physical integrity. The Statement of Principles goes on to nominate events that qualify as stressors in the setting of service in the defence force. They include (i) threats of serious injury or death and (ii) engagement with the enemy.
14.I turn then to a consideration of the particular events relied upon by Mr Warren. On the view that I ultimately take of this matter it is sufficient to consider two only – the unauthorised discharge incident and the confrontation with the South Vietnamese guard.
15.On the account of events given by Mr Warren the unauthorised discharge incident occurred in May 1971 when Mr Warren was undertaking an inspection of all weapons held by his unit to ensure they were accounted for. His immediate superior, an Artificer Sergeant Major (ASM) had two weapons – an F1 sub machine gun and a 9 mm Browning hand gun. The inspection of the weapons was undertaken in daylight hours but in the ASM’s quarters which were not well lit. It was difficult to see the numbers and in consequence the ASM turned into a position which made it possible to read the number on the hand gun. In breach of all of the rules of safety the ASM turned across in front of Mr Warren swinging the weapon past him at waist height and as he did so he released the slide and squeezed the trigger. That led to an accidental discharge. The bullet struck the ASM in the hand injuring him. Mr Warren was startled and immediately frightened. Later he reflected on how close he had been to being shot.
16.The confrontation with the South Vietnamese guard was said by Mr Warren to have occurred in January or February 1972 towards the end of his posting in South Vietnam. He was based at Van Kiep. On the day of the incident he was driving a truck back into the camp when part of the barbed wire surrounding the camp and forming its perimeter was caught by his truck. He stopped the vehicle however one of two guards stationed at that entry approached Mr Warren in a menacing fashion as Mr Warren sat in the driver’s seat of the truck. The guard pointed his weapon at Mr Warren and shouted aggressively. Mr Warren says that he became fearful for his life as he was threatened by the guard in this manner. Eventually the situation resolved itself and Mr Warren was able to drive away but was still affected by the incident.
17.In my view each of these events is consistent with Factor 5(a) of the template. Each involved Mr Warren being confronted by an event which involved a potential threat of death or serious injury. Each involved Mr Warren having a weapon, loaded or apparently loaded, pointed at, or adjacent to, him. It could not be said that his response in perceiving a threat was other than objectively reasonable. Accordingly, in my view, the third Deledio step is satisfied.
18.It then becomes necessary to proceed to the fourth step in Deledio and to determine whether I am satisfied beyond reasonable doubt that the post traumatic stress disorder did not arise from a war caused injury. It is at this juncture that it becomes necessary for me to make findings about the facts.
19.I should start by recording that I regarded Mr Warren as being a reliable witness and a reliable historian. Some criticism was levelled at him on the footing that the account of events that he has given as stressors has emerged over time and, superficially at least, there is some merit in that critisism.
20.Mr Warren saw Dr. Gillman, a psychiatrist, in May 1997. That doctor’s report says, relevantly,
He mentions nothing of great significance from his war service and in particular does not recount any major episodes of trauma.
21.Some 5 years later in August 2002 Mr Warren commenced seeing Dr Rogers. In a report dated 21 November 2002 Dr Rogers recounts only a limited number of events ultimately referred to by Mr Warren in his evidence and relied upon by him as being stressors for the purposes of these proceedings.
22.Whilst I acknowledge that Mr Warren’s account might be said to have developed over time there are in my view two factors which support its authenticity. The first is that the historical research undertaken for the respondent by Colonel P J Langford supports in very great measure the account of events given by Mr Warren. But equally, my impression of Mr Warren was that he was not a particularly articulate man. I did not regard him as being particularly adept at giving an account of events. I gained the impression that he found it an uncomfortable experience to recount the events of Vietnam, either in the setting of the Tribunal’s hearing room or in a doctor’s rooms. In that regard it is relevant to note that Dr Peter Mulholland, a psychiatrist of vast experience in matters of this nature, described Mr Warren as someone who was “not particularly articulate and … not particularly good at expressing his emotions in words”. Indeed Dr Mulholland was left with some concern that Mr Warren might be understating his symptomatology.
23.I have already set out the substance of Mr Warren’s account of the two incidents. I accept the account as being, in each case, an accurate account of events.
24.I have no doubt that Mr Warren found the unauthorised discharge event quite terrifying and, all the more so, when he reflected upon what may have happened. As I apprehend the position military training concentrates on the absolute requirement to avoid pointing a weapon in the direction, or the vicinity, of one’s own troops. That is borne out by a comment, attributed to the ASM in the Writeway Report, that he was trained “never to point a weapon at anyone unless you meant to shoot it”. Mr Warren had, no doubt, the same training. This event, whilst brief, was likely to have been all the more frightening because of its brevity, because it was in a confined area that was not well lit and because of the significant injury which was occasioned at the end of it.
25.The Commission says of these two incidents that they might each qualify as a threat of serious injury or death. But, it is said, I should doubt Mr Warren’s recall of the unauthorised discharge incident where the ASM involved, in the account of the event given to the author of the Writeway report, “so strongly disputes it”. And, it is said that I should have real doubts about the likelihood “that someone would shoot another person, at a busy place such as a camp gateway, over such a trivial matter”.
26.Those criticisms are, with respect, not well founded.
27.First, as it seems to me, it is impossible for me to reject Mr Warren’s account on the basis of a second-hand hearsay account of the ASM, a fortiori where I regarded Mr Warren as being a reliable and accurate witness. I do not doubt that two witnesses to an event such as the unauthorised discharge incident are likely to have differing accounts of the detail of the incident - that seems to me to be quite natural and the product of the differing perspectives of the parties involved.
28.The description of the gate incident as “trivial” does not do justice to the situation that Mr Warren found himself in. He was in a foreign country, a country that was at war, entering the camp of armed soldiers of that country in a large truck that got caught up in the perimeter fencing of that camp. He was confronted by an angry guard, speaking aggressively in a language that Mr Warren did not understand and pointing his weapon at Mr Warren. If, as the ASM noted, Australian Army training was that a soldier was never to point a weapon at anyone unless there was an intention to shoot, Mr Warren was entitled to think that the South Vietnamese guard was intending to discharge his weapon.
29.The Commission argued that it was not reasonable, objectively, that a person in Mr Warren’s circumstances should perceive himself under threat of serious injury or death. Reliance was placed upon the decision of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283.
30.What his Honour said in that case on this point was endorsed by the Full Court of the Federal Court in an appeal from his Honour’s decision (Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392) and also in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473. Woodward at [139] contains a useful paraphrase of what Mansfield J had said. Their Honours said,
In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.
31.I accept that Mr Warren was at the times of the two incidents an experienced career soldier in his late twenties holding the rank of sergeant. But even with that experience it seems to me that each of the two incidents was capable of conveying to Mr Warren the risk of death or serious injury. And I find as well that each of the events did, in fact, convey that threat to him.
32.It follows that I am not satisfied that the hypothesis advanced on behalf of Mr Warren has been excluded beyond reasonable doubt. In my view Mr Warren’s post traumatic stress disorder is war-caused within the meaning of s 9 of the Act.
DOES MR WARREN SUFFER FROM ALCOHOL DEPENDENCE OR ABUSE
33.In determining the question of diagnosis I must be reasonably satisfied that Mr Warren suffers from alcohol abuse/dependence: see Repatriation Commission v Smith (1987) 15 FCR 327. In determining that question here there are both medical and lay sources of evidence. The medical evidence starts, in a chronological sense, with a report of Dr Gillman of 13 May 1997. Dr Gillman saw Mr Warren in May 1997 and obtained from him a history of “somewhat excessive alcohol consumption”. Dr Gillman regarded Mr Warren as suffering from alcohol dependence.
34.In his report of 21 November 2002 Dr Rogers also noted excessive consumption of alcohol although he observed that there were less frequent episodes of binge drinking. Dr Rogers diagnosed alcohol dependence with physiological dependence although it must be said that his reasoning for that conclusion is not readily apparent.
35.Dr Mulholland saw Mr Warren in September 2005 for the purposes of these proceedings. It must be said that, as a consequence, his report is more detailed than the earlier reports of Dr Gillman and Dr Rogers. I do not by that mean to diminish the worth of the contribution of Dr Gillman and Dr Rogers, rather though, I intend to highlight that Dr Mulholland may be regarded as having turned his mind more acutely to the issues that I have to consider. It emerges from Dr Mulholland’s report that by September 2005 Mr Warren was consuming more modest quantities of alcohol. He told Dr Mulholland, and his evidence was, that he drank 150mls of port wine per day. In his oral evidence he said that on occasions at the bowls club, perhaps once or twice per week, he might, as well, have 2 glasses of rum and coke. In the detailed history given to Dr Mulholland, which again is consistent with the evidence of Mr Warren before me, reference made to an excessive intake of alcohol over a 10 year period from 1971 until 1981. Dr Mulholland concluded that “a current diagnosis of alcohol dependence is not appropriate”.
36.Despite the conclusions of Dr Mulholland it seems to me that I should prefer the conclusions of Dr Gillman and Dr Rogers. It may be that his alcohol dependence in under control or in remission however the fact that Mr Warren drinks every day of the week coupled with the history of earlier, very excessive drinking, leads me to conclude that the diagnosis of Dr Gillman and Dr Rogers is more likely and that Mr Warren’s condition is properly diagnosed as alcohol dependence.
37.The Commission, as I understand its submissions, accepted that if I concluded that Mr Warren had alcohol dependence that it would be open to me to find that factor 5(a) of the Statement of Principles in relation to alcohol dependence or abuse was satisfied. Given the findings that I have made in relation to post traumatic stress disorder that concession is proper. In those circumstances it is not necessary to undertake any further analysis in relation to this claimed condition beyond noting that it also must be regarded as being war-caused.
CONCLUSION
38.It is thus my view that Mr Warren has two conditions – post traumatic stress disorder and alcohol dependence – and that each of those conditions is war-caused. Accordingly I will set aside the determination of the respondent dated 21 October 2003 and determine in lieu thereof that post traumatic stress disorder and alcohol dependence are each accepted conditions with effect from 15 July 2002. The matter will be remitted to the respondent for determination of the rate of payment of pension.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Leisa Pendle, AssociateDate of Hearing 13 June 2006
Date of Decision 7 July 2006
For the Applicant Mr D Honchin of counsel
Ms M Wallace, Purcell Taylor Lawyers
For the Respondent Mr J Stoner, Department of Veterans’ Affairs
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