Warren and Repatriation Commission
[2005] AATA 28
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 28
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/639
VETERANS' APPEALS DIVISION )
Re DENNIS WARREN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date14 January 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review ....................[Sgd]..........................
R G Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service with Australian Army – post traumatic stress disorder and alcohol dependence – application of Statements of Principles – reasonable hypothesis of relevant relationship to service – conditions not war-caused.
Veterans’ Entitlements Act 1986 ss 6C, 7, 14, 120 and 120A
Deledio v Repatriation Commission (1997) 47 ALD 261
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633Woodward v Repatriation Commission (2003) 37 AAR 424
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION
14 January 2005 Mr R G Kenny, Member Background
1. Dennis Warren (the applicant) served in the Australian Army from 20 February 1964 until 19 February 1970. This included periods in and on route to and from South Vietnam from 17 January 1968 until 21 January 1969. Mr Warren contends that he now suffers from post traumatic stress disorder and alcohol dependence and that these are related to aspects of that latter service.
2. On 8 March 2002, Mr Warren lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of an “emotional and behavioural condition”. The claim, made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 19 June 2002, that Mr Warren suffered from post traumatic stress disorder and alcohol dependence but that these conditions were not related to his Army service. That decision was affirmed by the Veterans’ Review Board on 20 June 2003 and, on 29 July 2003, Mr Warren sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Warren was represented by Mr C Smith of counsel, and the respondent was represented by Mr B Williams.
4. The following material was tendered and taken into evidence:
exhibit 1the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – T1 to T8);
exhibit 2 a medical report, dated 4 July 2004, by Dr Marsh May, consultant psychiatrist;
exhibit 3a further medical report from Dr May, undated but forwarded to the Tribunal on 7 October 2004;
exhibits 4-8 statements, dated 22 October 2003, 14 March 2004, 25 April 2004, 21 June 2004 and 9 August 2004, respectively, by the applicant;
exhibit 9a statement, dated 1 October 2004, by E J Quartermass;
exhibits 10-14 reports, dated 19 February 2004, 19 March 2004, 22 June 2004, 3 August 2004 and 16 October 2004, respectively, by John Tilbrook from Writeway Research Service Pty Ltd;
exhibit 15a medical report, dated 30 April 2004, by Dr William Kingswell, consultant psychiatrist;
exhibit 16a series of photographs, numbered A to E, taken by the applicant in South Vietnam; and
exhibit 17a further report, completed on 12 November 2004, by Mr Tilbrook.
Issues and Legislation
5. It is not disputed by the respondent and I am satisfied that Mr Warren rendered operational service and eligible war service, as defined in sections 6C and 7, respectively, of the Act in the period from 17 January 1968 until 21 January 1969.
6. The first issue for the Tribunal is that of determining the conditions with which Mr Warren can be diagnosed in response to his claim. The respondent has accepted that he suffers from alcohol dependence but disputes that a diagnosis of post traumatic stress disorder can be made. The next issue for determination is whether any such condition found to be present in Mr Warren is related to his operational service in the sense of it, therefore, being a war-caused condition. In that regard, subsection 9(1) of the Act, insofar as it is relevant in this matter, provides that, for the purposes of the Act, the condition will be taken to be war-caused if:
§it resulted from an occurrence that happened when Mr Warren was rendering operational service; or
§it arose out of, or was attributable to, any eligible war service rendered by him.
7. The standard of proof applicable to the determination of the appropriate diagnosis of conditions in Mr Warren is provided for in subsection 120(4) of the Act which requires such matters to be decided to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that such matters are to be determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
8. The standard of proof applicable to the determination of entitlement claims for operational service is set out in subsection 120(1) of the Act which reads:
“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.”
9. The application of that provision is affected by the terms of subsection 120(3) of the Act and section 120A of the Act which require that consideration be given to any relevant Statements of Principles which have been published by the Repatriation Medical Authority (RMA).
Diagnosis of Conditions
10. The RMA’s Statement of Principles for alcohol dependence is Instrument No. 76 of 1998. It ascribes a meaning to the term “alcohol dependence” and utilises the diagnostic criteria as specified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Both Dr Marsh May and Dr Kingswell have confirmed the diagnosis of alcohol dependence and I am satisfied that Mr Warren suffers from this condition.
11. In relation to post traumatic stress disorder, Dr May and Dr Kingswell have expressed differing opinions and Mr Williams submitted that Mr Warren did not have the condition. The RMA’s Statements of Principles concerning post traumatic stress disorder is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. Again, the Statement utilises DSM-IV in describing the condition and it requires that the condition meets the following descriptions:
“(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.”
12. Dr May is Mr Warren’s treating psychiatrist and has been seeing him on a regular basis since December 2001. Dr May said that he had difficulty, initially, in resolving the precise nature of the psychiatric conditions from which Mr Warren suffered. However, he said that, over time, he was able to confirm the existence of criteria A to F noted above. He referred to various matters that occurred in South Vietnam which involved Mr Warren and said that he re-experiences those events and ruminates over them. He said that there was a reluctance by Mr Warren to talk about events that occurred during his service, an avoidance by him of things which remind him of that service and a sense of detachment in dealing with others. Dr May said that Mr Warren had described to him a heightened startle response to stimuli such as loud noises and frequent expressions of anger. He said that the symptoms had been present for many years, with proliferation from 1991 onwards and that he was severely disabled by the disturbances he suffers and which cause him distress. He identified two main stressors for Mr Warren: being in a building which was subjected to a rocket attack and seeing dead bodies in the grounds of a hospital. He said that, if these factors were not taken into account, then criterion A would not be met.
13. Dr Kingswell was of the opinion that Mr Warren did not suffer from post traumatic stress disorder. He saw Mr Warren on one occasion for a period of some two hours and described him as being co-operative and as providing a reasonably detailed history of events during and since his Army service. Dr Kingswell recounted incidents that had been described to him by Mr Warren and concluded that criteria A and B in the Statement of Principles were not met.
14. Post traumatic stress disorder is a condition where the factors of causation for the condition overlap with the diagnostic criteria for the condition. Nevertheless, in Woodward v Repatriation Commission (2003) 37 AAR 424, the Full Court (at 433) confirmed that the question of whether a person suffers from a particular condition is not affected by a Statement of Principles, even if that Statement of Principles contains a definition of the condition: see also Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Deledio (1998) 83 FCR 82 at 96-97. On that basis, the question of whether Mr Warren suffers from post traumatic stress disorder is to be assessed on the available medical evidence. In forming their opinions, both Dr May and Dr Kingswell relied upon the history of events and of symptoms as provided by Mr Warren. The criteria were identified by Dr May who had the benefit of treating Mr Warren over some years and I am satisfied that, on the balance of probabilities and for the purpose of diagnosis, the evidence of Dr May should be accepted. It follows that I am satisfied that the applicant suffers from post traumatic stress disorder.
Principles of Causation: The Deledio Steps
15. The Federal Court in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92, set out a four-step procedure for determining issues of causation where operational service has been rendered. The first of these steps requires that there be material which points to an hypothesis connecting the claimed condition with service. In that regard, Mr Smith advanced seven contentions on behalf of Mr Warren:
(i)he heard gunfire at the time of landing on shore in South Vietnam;
(ii)he witnessed the shooting in the leg of a soldier outside the Rest and Convalescence Centre (R and C Centre) in Vung Tau;
(iii)he was required to escort Vietnamese civilian workers to their homes after curfew;
(iv) he found light bulbs hanging from the R and C Centre;
(v) he undertook journeys as an armed escort on convoy duty;
(vi)he was in the R and C Centre when it was the subject of an enemy rocket attack; and
(vii) he saw several bodies at a civilian hospital.
16. I accept that each of these constitutes a separate hypothesis and each must be considered separately.
17. The second of the four Deledio steps requires identification of the relevant Statement of Principles and these are noted above for both alcohol dependence and post traumatic stress disorder.
18. The third Deledio step requires a consideration of whether any of the hypotheses raised is a reasonable one and this requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. For alcohol dependence, these are:
“(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
19. For post traumatic stress disorder, they read:
“(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
20. If any of the hypotheses for either of the conditions under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Evidence
21. Evidence was given in this matter by Mr Warren, Dr May, Dr Kingswell, John Tilbrook, James Doidge and Ian Gilmore.
22. Mr Tilbrook was engaged by the respondent to conduct research into military records to provide a background to the events described by Mr Warren. In preparing his report, he consulted a wide range of military records and spoke with various people who had positions of authority in relation to institutions and activities in the areas and at the time when Mr Warren served in Vietnam.
23. Mr Doidge was the catering advisor on the staff of Australian Logistics Support Group (1 ALSG) at Vung Tau from July 1967 until July 1968. His responsibilities included the management of staff resources in the area and these included the operation and activities of the R and C Centre in Vung Tau where Mr Warren served.
24. Mr Gilmore was the commander of 1 ALSG in Vietnam from October 1967 to November 1968. He was responsible for the overall command, administration and management across all logistics units in the Vung Tau area, including the operations of the R and C Centre and 1 Aust Field Hospital.
Mr Warren’s Service
25. In Australia, Mr Warren completed his basic training at Kapooka. Subsequently, he completed training at the Apprentice School in Victoria and was posted to the Catering Corps. He completed the jungle training course at Canungra in late 1967 and, in Vietnam, he was posted as a corporal cook. From February to September 1968, he was based at the R and C Centre in Vung Tau outside of the main Australian base. In September 1968, he was deployed as a corporal cook with HQ5 Company which was in the 1 ALSG base at Vung Tau.
26. The R and C Centre in Vung Tau was a converted French villa on the western side of the township and at the foot of Radar Hill. It comprised 46 rooms and was able to accommodate 80 soldiers on rest or convalescence. It had its own kitchen and recreational facilities. It was administered by a warrant officer and had its own Army cooks, including Mr Warren, as well as locally hired Vietnamese workers who were employed as housemaids, cleaners, kitchen hands and gardeners.
27. The senior person at the R and C Centre was warrant officer Bert White. Mr Warren said that at no stage while he was there or before he went to the R and C Centre was there any briefing given as to the security measures to be adopted in the event of any emergencies that might arise or in respect of any evacuation procedures in the event these might be required. He said he undertook guard duty from time to time, especially in the initial stage during the TET Offensive. He said that he felt vulnerable at the R and C Centre because there was no real security there.
Deledio Step 3: Material relating to each Hypothesis
First hypothesis: gunfire on landing
28. Mr Warren arrived in Vung Tau Harbour on 3 February 1968 at the time of the TET Offensive which was characterised by heightened enemy activity. He recalled being transported to shore from HMAS Sydney by landing barge with other soldiers. All of them were unarmed. On landing, he heard gunfire from perhaps a kilometre away and said that he felt vulnerable at the time. Mr Smith submitted that, at the time, Mr Warren would not have been able to defend himself in the event that there was enemy contact.
29. Mr Tilbrook’s analysis of relevant records confirmed that the transit from HMAS Sydney to the hard landing near De Long Pier was by barge and that this was manned by a crew which included an armed sailor. He said that the Australian soldiers, including Mr Warren, were unarmed as this was usual practice for reinforcements not to bring their own weaponry with them to Vietnam but to take over that of those whom they replaced. He provided a copy of the Report of Proceedings of HMAS Sydney which recorded the ship’s movements and activities on 3 February 1968. It revealed that the ship anchored in the harbour at 7.03 am and had discharged the troops before noon.
30. Mr Tilbrook said that he was present at De Long Pier on the morning of Mr Warren’s arrival. He said the pier was in the “special zone” which was considered to be a safe area and away from enemy activity. He said there was no gunfire whilst he was there and that records revealed that the closest enemy activity to that point on that day was some 20 kilometres away at 3:05 pm. He said that he had spoken to a warrant officer who arrived at the same time as Mr Warren and he confirmed the absence of weapons and admitted to a sense of apprehension at the time.
Second hypothesis: shooting of a soldier
31. Mr Warren recalled an occasion when a soldier was shot when returning to the R and C Centre after curfew. Mr Warren was watching a film in the foyer of the building when he heard gunfire. He went to the roof of the building to see what had happened and heard warrant officer White order that shots be fired at two figures who had not responded to the sentry’s challenge. It was dark. One of the men was shot in the leg. Mr Warren said that he saw the incident and that he recalled that both Australian and United States Army personnel arrived in a number of vehicles shortly after the shooting.
32. Mr Tilbrook confirmed that an Australian soldier had been shot in the leg after failing to respond to a challenge from a sentry when the soldier was returning to the R and C Centre after curfew. This incident is well documented and described in detail in the report of Mr Tilbrook. An entry in the operational log sheets of 1 ALSG for 7 February 1968 reads:
“Time 2230 hours. From R and C Radio Op. reported shot fired in area. Proved to be a member AWOL who was fired on by sentry. Member wounded in leg. Landrover and escort vehicle despatched to fetch casualty. Time 2230 hours. From 8 FD AMBL. Particulars of casualties; ….. minor gunshot wound to right thigh. Condition satisfactory.”
Third hypothesis: escorting civilians after curfew
33. Mr Warren said that, particularly during the early part of his service at the R and C Centre, he was required to drive some of the Vietnamese staff to their homes at night. Again, he said that he felt vulnerable while doing this. Mr Tilbrook said that, after curfew, only approved vehicles could be driven so that, if civilians were to be driven home after curfew time, it would need to be an authorised trip. He said this would be done by having an escort of military police. Mr Warren said that these trips were made without the benefit of armed escorts.
Fourth hypothesis: light bulbs at the R and C Centre
34. On one occasion when Mr Warren was on the roof area of the R and C Centre, he saw two light bulbs on cords hanging from windows. They were switched on and he formed the belief that they had been placed there for the purpose of providing guidance to enemy forces who were interested in some form of attack on Radar Hill which was immediately behind the R and C Centre. He disconnected the lights and reported the matter but nothing else was done about it.
35. Mr Tilbrook said that he was aware of the military facility on Radar Hill. He said that the hill was a noticeable geographical feature, that the structures on it were well-illuminated and that strobe lights were installed to ensure that the feature was visible to aircraft. He said that it was possible to see Radar Hill from as far as 50 kilometres away.
Fifth hypothesis: convoy duty
36. From November 1968 until he left Vietnam, Mr Warren was redeployed as a corporal cook with a transport company located at 1 ALSG. His main duties were in catering although, on two or three occasions, he volunteered to ride “shotgun” in an Army vehicle on a convoy from Vung Tau to Nui Dat. He said that, during that time, no events occurred which were of concern to him although he always realised that there was a margin of risk involved.
37. Mr Tilbrook confirmed that it was common practice for non-combatant soldiers to volunteer to ride as escorts on convoys. However, he said that there was no expectation that soldiers with busy schedules such as those relating to the duties of a cook would be in that position. Mr Tilbrook said that the records of 5 COY RAASC and 2 TPT PL in the period from 26 September 1968 until 21 January 1969 revealed no episodes of any enemy intervention on road convoys.
Sixth hypothesis: rocket attack on the R and C Centre
38. A further event recounted by Mr Warren related to what he believed was a rocket attack on the R and C Centre. It was early in his period of service at the Centre and he had been rostered as the duty NCO for the night. He was lying down on a mattress relaxing when he heard an explosion and glass breaking. He was unable to determine where the firing was coming from and then he heard two more explosions. The soldiers in the building were running everywhere and then he heard a rattling on the iron gates to the R and C Centre. He went to the gate and allowed entry to an American soldier who told him that there was an enemy attack under way. He then went to the roof where he was on his own. There were no further explosions after that and he was unable to see any damage in the surrounding area. Again, he said that there were no procedures in place for this kind of event or for any evacuation of the building in the event that such things occurred.
39. Mr Warren said there had been another guard on duty at the time but he was unable to recall who he was and he did not see him after the rockets exploded. He was unable to recall whether reinforcements were sent from 1 ALSG. Next day, he heard someone talking about damage to four houses in the village nearby. He did not see this damage and was unable to say how far away from the R and C Centre the damaged buildings were. The R and C Centre suffered damage which included shattered windows.
40. Mr Tilbrook said that, at the R and C Centre, guard duty was performed by soldiers from 1 ALSG while general security of the premises over internal matters such as maintenance of stock was conducted by R and C Centre personnel. However, he said that, during the TET Offensive, security measures were increased and it was likely that additional guard duties would have been required of R and C Centre personnel. He also said that, during that period, the curfew had been brought forward to 7:30 pm rather than the usual 11:30 pm. Mr Gilmore also said that, during the TET Offensive, there had been a doubling of security measures.
41. In respect of rocket attacks on Vung Tau Peninsula, Mr Tilbrook said that the launching point for these attacks was Long Son Island or the mangrove areas south of the island. He said that the demonstrated maximum range of the weaponry used by the Viet Cong at that time was such that they would not have reached the R and C Centre. He said that there had been rocket attacks during Mr Warren’s period at the R and C Centre and that these occurred at 00:53 hours and 05:30 hours on Tuesday 23 April 1968. He said that these were well-documented and had not impacted on Vung Tau township but had resulted in damage to a United States Army installation some 2 kilometres away from the R and C Centre.
42. In evidence was a statement by Mr E J Quartermass (exhibit 9) who was a sergeant caterer at the R and C Centre from 5 February 1968. He wrote that, on arrival, he had been informed of an attack on the radar facility on Radar Hill.
43. Mr Tilbrook consulted Mr David Lees who, in 1968, commanded the Royal Australian Navy Clearance Diving Team which was permanently encamped on Radar Hill. The diving team was charged with the responsibility of inspecting the sites of any damage caused, for example, by enemy rocket attacks, of assessing the damage and of ensuring that there was no undetonated ordnance remaining before declaring the area safe. Mr Lees said that there was no record of any rocket attack on the R and C Centre and Mr Tilbrook said that this was confirmed by the diving team’s records.
44. Mr Doidge said that he visited facilities where his cooks were engaged and these included the R and C Centre and 1 Aust Field Hospital. He would visit these places every four to six weeks. He had no knowledge of any rocket attack on the R and C Centre. His concern at the time was for the welfare and safety of his cooks and he said that he would have expected to be informed of any such attack but conceded that this was more likely in the event that one of his cooks had been injured.
45. Mr Gilmore said that he could not recall any incident involving a rocket attack on the R and C Centre but he also said that he was unaware of any rocket attacks at all during his period of time in Vietnam. He said that sentries were routinely provided for the R and C Centre by 1 ALSG units on a roster basis. He said that, during heightened activity, these were doubled.
46. Mr Gilmore said that security measures at the R and C centre were adequate and well monitored. He also said that there was a written contingency plan for a ready reaction force to respond quickly to any surprise event and to facilitate the evacuation of the R and C Centre.
Seventh hypothesis: bodies at a civilian hospital
47. Mr Warren said that there was a civilian hospital within walking distance of the Centre and also a military hospital at 1 ALSG. He said he had been to each of these hospitals and had obtained penicillin to treat venereal disease. He had been under the belief that any soldier who reported on two occasions with venereal disease was sent home. For that reason, he went to the civilian hospital to obtain penicillin from nurses whom he knew and he did this without any formal records being kept. On this occasion, he saw bodies lying on the ground at the hospital. He said they were not Australian and that it had made him feel “funny in the stomach”. They were stacked under a verandah and individually wrapped and covered and there was blood everywhere. He said that he had a daughter aged about two years at the time and seeing the bodies of the children made him feel “pretty bloody lousy”.
48. Mr Tilbrook said that there was a civilian hospital located some 200 metres from the R and C Centre. He described it as being not well-equipped or staffed and as having a shortage of medical supplies and personnel. He said that the 1 Aust Field Hospital at 1 ALSG would provide assistance to it from time to time. He noted from hospital records that Mr Warren had attended 1 Aust Field Hospital for inoculations for venereal disease on 11, 12 and 16 May 1968.
49. Mr Tilbrook consulted Vung Tau records which recorded incidents involving enemy contact and casualties and said there were no such incidents involving casualties concerning women and children at the time when Mr Warren was at the R and C Centre. He found a reference to the wounding of three women and two children in May 1968 some kilometres from Vung Tau and he said that it was unlikely that they would have been brought for treatment to Vung Tau. He conceded that the records that he consulted would not have provided data on casualties related to domestic criminal activities.
50. Mr Tilbrook said that it was unlikely that dead bodies would be seen at the 1 Aust Field Hospital because it did not have a mortuary at the time when Mr Warren was there. Mr Gilmore said that he was not aware of anyone other than Australian military personnel attending for any form of treatment at 1 Aust Field Hospital as it was not set up for civilians. Mr Doidge said that, in his visits to 1 Aust Field Hospital, he had not seen any civilians there for treatment.
Deledio Step 3: Reasonableness of Hypotheses
51. An analysis of the experiencing of a severe stressor involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission (2003) 37 AAR 443 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, there is no requirement that there be an actual threat: see Stoddart at paragraphs 30-31 and Woodward at 149-150. In Stoddart, the Full Federal Court adopted the following statement from Woodward’s case:
“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.”
52. The evidence before the Tribunal in relation to the first, third, fourth and fifth hypotheses does not point to circumstances which meet the experiencing of a severe stressor in either of the relevant Statement of Principles. It does not point to Mr Warren experiencing, witnessing or being confronted by events of the kind detailed in the respective definitions. In relation to the landing in Vung Tau Harbour, the evidence does not point to gunfire in any close proximity to Mr Warren and his feelings at the time were merely those of vulnerability. In relation to the escorting of civilians, no specific event was identified and, again, Mr Warren described feeling vulnerable. No explanation was provided to Mr Warren for the presence of the light bulbs that he found and, given the nature of the lighting on Radar Hill as described by Mr Tilbrook, a reasonable person would not reach the conclusion that Mr Warren claims to have reached at the time. When he was undertaking convoy duty, the evidence does not point to any event which was or might be reasonably perceived to be a threat to Mr Warren. Neither Dr May nor Dr Kingswell made reference to any of those matters in their reports. In only one of the six reports completed by Dr May is reference made to the fifth hypothesis concerning convoy duty. As the first, third, fourth and fifth hypotheses do not fit the template of either of the Statement of Principles, those hypotheses are not reasonable and, to the extent that Mr Warren relies on them, his claim fails.
53. The material before the Tribunal in relation to the second, sixth and seventh hypotheses does point to a satisfaction of the terms of the factors and associated definitions in the relevant Statements of Principles and, therefore, they are reasonable. This means that, applying step 4 of the procedure in Deledio, the post traumatic stress disorder and alcohol abuse/dependence will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence in relation to them.
Deledio Step 4: Are the Conditions War-caused?
54. This final stage for determining causation involves finding facts after considering all of the evidence in relation to the three hypotheses that have been found to be reasonable. Clearly, this will involve a consideration of the evidence given by Mr Warren. Mr Smith submitted that Mr Warren was a credible witness whose evidence should be accepted because it had not been effectively refuted by the respondent. I do not accept that submission.
55. I do not accept Mr Warren’s description of the absence of proper security and contingency plans in the event of enemy action. It was at odds with the evidence of Mr Gilmore. Also, annexed to the reports prepared by Mr Tilbrook were extracts from various unit logs including a copy of 1 ALSG Standing Orders which set down the requirements for the defence of that base and evacuation of the R and C Centre (see exhibit 10: attachment 13) and this confirmed Mr Gilmore’s evidence.
56. Mr Tilbrook provided a statement from Mr David Lees who commanded the Royal Australian Navy Clearance Diving Team which was responsible for investigating explosion sites. He commenced duty on Radar Hill on 11 February 1968. He said that there was no record of any rockets landing in the area before he arrived and no other rocket attacks until 23 April 1968. He said that these rockets were fired into and caused damage at an American airfield some kilometres from the R and C Centre. He said that there were no “clean ups” to the south of Radar Hill which was where the R and C Centre was located and this was explained by greater distance of the R and C Centre from the launch sites on Long Son Island. Attached to Mr Tilbrook’s report was a record of enemy rocket attacks between January and June 1968 and the only recorded incidents are on 23 April 1968 (see exhibit 14: attachment 1). On the evidence before me, I am satisfied beyond reasonable doubt that the R and C Centre was not the subject of a rocket attack while Mr Warren was serving there in 1968.
57. There were inconsistencies in Mr Warren’s evidence concerning the bodies that he claims to have seen at a hospital in Vung Tau. In his statement (exhibit 7), he saw these when he “had to report to the hospital for medical treatment during the TET offensive”. The need to “report” would suggest that 1 Aust Field Hospital was the place of attendance. His service medical records show that he was treated there for venereal disease in May 1968. The evidence before the Tribunal was that civilian personnel would not have been treated there and the absence of a mortuary at that time would preclude the presence of dead bodies. However, Mr Warren said he attended, unofficially, a civilian hospital to obtain penicillin from nurses whom he knew and that this was where the bodies were. He also said that this was the first time he had venereal disease and that his hospital visit occurred during the early part of his time in Vietnam between February and April. This was before his only documented treatment at 1 Aust Field Hospital in May and yet the reason given by Mr Warren for attending the civilian hospital was that he had a belief that, if he were discovered to have contracted venereal disease on two occasions, he would be returned to Australia. The timing of the visit also preceded the wounding of the three women and two children referred to by Mr Tilbrook.
58. Mr Warren was able to say that the bodies were “women and children” and that they were “not Australian”. Yet, he said that they were “covered”, “wrapped individually”, “on the hospital grounds” and “stacked under a verandah”. He also said that it was “obvious that they had severe wounds as blood was very evident”. His evidence about hospital attendance was quite confusing and I have difficulty in accepting that he did see bodies at all. The definition of experiencing a severe stressor in the Statement of Principles for post traumatic stress disorder does not refer to the nature of the reaction by a claimant. In that regard, it differs from the Statement of Principles for alcohol abuse/dependence. However, in assessing the experience of Mr Warren, I note that his declared reaction at the time was of feeling “funny in the stomach” and “pretty bloody lousy”. It is also significant that this event was described by Dr May in only his final report in October 2004. In the report completed by him on 7 December 2001 for the purposes of Mr Warren’s initial claim and in four subsequent reports, it is not mentioned. In relation to the dead bodies, Dr Kingswell said that the description given to him in April 2004 was that they were all completely covered and he saw no actual bodies but rather bodies wrapped in shrouds and he said there was no subjective response described by Mr Warren to him in relation to the incident. I am satisfied beyond reasonable doubt that seeing bodies wrapped individually in the manner he described does not constitute experiencing a severe stressor as defined in either of the Statements of Principles.
59. The final matter for consideration is hypothesis 2 relating to the shooting of the soldier after curfew. Mr Warren claims that he witnessed the event. Certainly, it occurred when he was serving at the R and C Centre. There was an injury incurred and this was described in records provided by Mr Tilbrook as “an oblique skin wound without bone damage” (see exhibit 10: attachment 10). This event could constitute a severe stressor in appropriate circumstances. However, it did not in Mr Warren’s case. It is not an event which he considered significant enough to relate to Dr May who did not refer to it in his reports. Also, in a statement Mr Warren made on 10 June 2002, some three months after his initial claim, he described the incident and then qualified its significance to him by adding:
“I only relate this story to help you understand how we were hyped up around the time of the Tet offensive.”
60. I accept that there was a heightened level of apprehension amongst service personnel in Vietnam during the TET offensive. But that, by itself, does not satisfy the requirements in the Statements of Principles. Dr Kingswell said that the experience involving the shooting was recounted to him in a way which did not indicate that Mr Warren was greatly affected at the time and, indeed, he had simply said that it made him realise that it was “not all roses” in Vietnam.
61. I am satisfied beyond reasonable doubt that the shooting incident does not constitute experiencing a severe stressor as defined in either of the Statements of Principles in Mr Warren’s case.
Decision.
62. The Tribunal affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 12 November and 7 December 2004
Date of Decision 14 January 2005
Counsel for the Applicant Mr C Smith
Solicitor for the Applicant Sciacca's Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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