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[2004] FCA 1158
Federal Court of Australia
2004-09-08
Spender J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") which, on 22 April 2004, affirmed the decision of the Veterans' Review Board of 13 August 2002, which in turn had affirmed the decision of the Repatriation Commission made on 7 February 2002, that post-traumatic stress disorder ("PTSD"), alcohol dependence or alcohol abuse, and psoriasis of the applicant, Jan Hendrik Schmidt, were not "war-caused" within the meaning of s 9 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 Mr Schmidt, who was born on 14 December 1947, enlisted in the Royal Australian Air Force on 8 February 1965, and was discharged on 3 November 1983. The applicant had "operational service" at Ubon, Thailand from 14 July 1966 to 8 September 1966. The applicant also had "defence service" from 7 December 1972 to 3 November 1983. The present application places no reliance on Mr Schmidt's defence service. 3 The applicant claimed that his PTSD, alcohol abuse/dependence and psoriasis were war-caused. The Repatriation Commission has accepted that the condition of sensori-neural hearing loss of the right ear with tinnitus is a war-caused condition, and the applicant is in receipt of a disability pension at 10 per cent of the general rate. 4 The hypothesis advanced by the applicant was that three incidents during his service in Thailand caused him to suffer from PTSD and alcohol abuse/dependence, and that these conditions had their onset whilst in Thailand or, in any event, within two years of those incidents. Those incidents were a Red Alert incident at Ubon; secondly, the wrongful apprehension of the applicant by a Thai guard whilst he was on patrol; and thirdly, arrest and incarceration by Thai police. The applicant contended that his psoriasis arises as a consequence of suffering a clinically significant anxiety disorder (PTSD), which itself is claimed to be war-caused. 5 The scheme of the Act, in its application to the circumstances of this appeal, is accurately summarised in the submissions on behalf of the applicant: '15. The Act establishes a beneficial legislative scheme, providing pensions and other entitlements for persons who have served Australia in both times of conflict and, in certain circumstances, through their service with the Australian Defence Forces. 16. A person who becomes incapacitated from a war caused injury or war caused disease is eligible for a pension in accordance with the Act. Part II of the Act deals with eligibility for such pensions. For war caused injuries or diseases, a reference to the incapacity of a veteran from a war cause injury or disease is a reference to the effects of that injury or disease not the injury or disease itself (s.5D(2) of the Act). 17. Section 9 (1)(b)of the Act defines for the purposes of the Act when an injury or disease may be taken to be a war caused injury or war caused disease. For the purposes of this appeal, that obliges that an injury or disease shall be taken to be war caused if: (b) The injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; 18. Section 7(1)(a) provides that a person who has rendered operational service is taken to have been rendering eligible war service while they were rendering operational service. Pursuant to s. 6F of the Act, a person is taken to have rendered 'operational service' during any period of warlike or non-warlike service. Warlike service is defined in s. 5C(1) of the Act as 'service in the Defence Force of a kind determined in writing by the Minister for Defence to be warlike service'. On 4th January 2001, a determination that service in North East Thailand (including Ubon) between the period 25th June 1966 to 31st August 1968 inclusive (in the units mentioned) was warlike service was made by the Minister for Veterans' Affairs for an on behalf of the Minister for Defence. 19. Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and s. 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans' Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable. 20. The Act establishes in Part II a scheme that provides for 4 different rates of pension, depending upon the degree of impairment. 21. In determining a causal link between the service of a veteran and particular diseases and injuries, the Act provides for the development and determination of Statements of Principles by a body entitled the Repatriation Medical Authority (s. 196B). A Statement of Principle determined under s. 196B is a disallowable instrument (s. 196D). The RMA has determined Statements of Principles in respect of the conditions of post traumatic stress disorder, alcohol abuse/dependence and psoriasis. These are: (a) Instrument No. 3 of 1999 as amended by No. 54 of 1999 (Post Traumatic Stress Disorder - operational service); (b) Instrument 76 of 1998 (Alcohol abuse/dependence - operational service); and (c) Instrument No. 56 of 2002 (Psoriasis - operational service) 22. The Act sets out the standard of proof in respect of determinations in s. 120, and where a Statement of Principle is in effect for the claimed condition, the operation of s. 120 is controlled by s. 120A (for operational service). 23. In respect of post traumatic stress disorder and alcohol abuse/dependence the relevant SoP's provide that a reasonable hypothesis links a veteran's condition and operational service if the veteran:
(b) experiences a severe stressor in the two years prior to clinical onset of the condition.
"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' Entitlement Act applies, events that qualify as stressors include:
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;' 6 The definition of "experiencing a severe stressor" in Instrument No. 76 of 1998, is in similar terms to that in Instrument No. 3 of 1999, except that the end of the first limb of the definition includes "which event or events might evoke intense fear, helplessness or horror". Instrument 3 of 1999 is the relevant Statement of Principle ("SoP") in the present application. 7 It is common ground that the applicant's claim for psoriasis depends upon a successful claim for PTSD. 8 The AAT found that the applicant suffered from the claimed conditions of PTSD, alcohol abuse/dependence, and psoriasis. The AAT followed the steps referred to by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio"). The AAT found that the material raised a hypothesis connecting the claimed conditions to the circumstances of the service rendered; that there was in existence a SoP for each claimed condition; that the hypothesis was a reasonable one, that is, it fitted the relevant Statement of Principle. 9 The AAT then said: 'It is now necessary to consider the evidence to determine if the Tribunal is satisfied beyond reasonable doubt that the applicant's injuries were not war- caused in accordance with step four [of Deledio]' 10 After reviewing the evidence, the Tribunal concluded: '59. … as far as operational service is concerned the Tribunal is satisfied beyond reasonable doubt that the applicant did not experience a severe stressor in terms of the relevant SoPs and therefore determines that the hypothesis of the applicant is not reasonable. Therefore, the claim must fail.' 11 The three incidents in Ubon on which the applicant relied were described by the AAT as follows: '5. Mr Schmidt told the Tribunal he was 18 years old when he served in Ubon. He said that he served as a General Hand and as an Airfield Defence Guard. He said his shift would start at 7.00 at night for 12 hours. He said he knew there was a possibility of attack from insurgence [sic]. 6. He described the following incidents involving a Thai Guard. The applicant said that usually the Australian and Thai Guards would get together about 4 pm to exchange passwords and to become familiar with each other so that if their paths crossed during the evening the Guards would recognise each other. 7. On this occasion the applicant said that he was patrolling along the fence which separated a fuel dump from the Australian compound. It was dark, the applicant was armed. The applicant then felt something sharp pointing into his back. The applicant says that he initially felt panic. He was then directed into a building. After a short time his ID was checked and some other Australians came to collect him. He said he thought Sergeant Magill was one of these. 8. The applicant said that initially he did not know who had stuck their bayonet in his back. However, he realised after a time that it was the Thai Guard. Although the applicant had given a password, the Thai Guard did not appear to accept it. The applicant said he was scared and feared for his safety. He said he had been told that "Thais do not mess about and that they would shoot" and that it was best to do what they say. The applicant said that after the incident he became hyper-vigilant and carried his gun at the ready position. He also preferred to patrol on the operational side of the base where the Thais were not patrolling. 9. The second incident involved the applicant obtaining a licence for a pushbike. The applicant said that he was told that he needed to obtain a pushbike licence. He rode to the local Police Station. Upon arrival he indicated that he was looking for a licence. The Police did not appear to understand what he was saying and pushed him into a room and locked the door. The applicant came to realise that he was in a cell. He says he was in this cell for 4 or 5 hours and he recalls shouting and yelling out. The applicant said that he did not know what was going on or what would happen to him. He said he recalled that after about 4 or 5 hours some Australian troops arrived and took him back to the base in a jeep. However, he said that he was given a licence to drive the pushbike before he left the station. 10. The applicant said he recalled being very angry about being locked up. He said that he had only been in Ubon for about 3 months when this incident occurred. He says he did not leave the base after this incident. 11. The third incident related to a Red Alert. He recalls that the Red Alert occurred in the evening. He says US Forces put up red flares around the perimeter. He said that the troops had been told that during a Red Alert there was a possibility of an imminent attack. Mr Schmidt said he was told by Sergeant Magill to stay with him as he was the youngest in the unit. He says he had his rifle with him. He said he removed the first rubber bullet from the chamber so that his first round was a live round. He said that they were ordered not to shoot unless there was an order to fire. He said he recalls being at a high state of alert and that he was scared. He said, "I was 18 years of age". He recalls one of the other personnel firing a bullet into the jungle as he thought he saw something. He said he was quite frightened at that stage. 12. Mr Schmidt said he recalled that they were standing under a large spotlight. He and Sergeant Magill considered shooting out the light but instead moved away from it. They continued to guard the gate. Mr Schmidt said he could see flares being dropped around the perimeter of the airbase and he believed they were being dropped by US Forces. 13. Mr Schmidt said he recalls being on duty on this occasion for 48 hours which was the period of the Red Alert. He says he cannot recall that he slept during this time. 14. He says he has dreams about this event and in particular the shot being fired and standing under the light. He says that: "in my dreams I am running away but before I am caught I wake up. I don't know who is chasing me. Sometimes I am riding a pushbike and it's the same dream, I am running away but I wake up before I am caught."' 12 A report of Dr John Rogers, a psychiatrist, dated 13 August 2001 was in evidence before the Tribunal. In that report, Dr Rogers refers only to the incident whilst on patrol and the incident concerning the bicycle licence. Dr Rogers said in that report: 'He fulfils criteria for chronic war caused Post Traumatic Stress Disorder as defined in the Statement of Principals. Likewise arising out of this is Alcohol Dependence (physiological).' 13 So, too, in a report of Dr Michael Likely, a consultant psychiatrist, dated 5 June 2003, the history as recorded by Dr Likely refers to the Thai Guard incident and the arrest for riding a bicycle without a licence, but makes no reference to any Red Alert incident. Dr Likely expressed the opinion: 'Mr Schmidt has been suffering in my opinion from combat related post traumatic stress disorder complicated by alcohol abuse. Both of these arose as a direct result of his service …' 14 In evidence also was an extensive report by Dr Peter Mulholland, a psychiatrist, dated 3 July 2003. Dr Mulholland expressed his opinion: 'The clinical picture that this man describes is consistent with long term chronic alcohol abuse/dependence and chronic PTSD. I regard his alcoholism as clinically being the more important problem. One can easily become buried in the chicken and the egg type arguments in terms of which came first - the PTSD or the alcoholism - … I think the situation in this case is that his history is consistent with the development of alcoholism from his late teens and from when he served in Ubon and has gradually become worse over the years. Likewise he has a history which is consistent with developing features of PTSD at that time and then these gradually becoming worse over the years.' Dr Mulholland expressed the view: 'The difficult question is the one as to whether he experienced a "severe stressor" as defined. The proposition that he experienced a severe stressor in Ubon could be argued both ways. The same comments could be made in respect of PTSD. Speaking as a psychiatrist I can say that he experienced stressors in relation to his service in Ubon however I consider it is ultimately up to the AAT to determine whether these matters constituted a severe stressor or not.' [Emphasis in the original] 15 There was conflicting evidence, particularly concerning the frequency and effect of Red Alert episodes. The AAT accepted evidence set out in a report by Writeway Research Service and set out excerpts from that research, namely: 'Based upon the information assembled in this Report, and in the accompanying Enclosures and attachments, it is the Researcher's finding that there is no evidence in official records to substantiate the traumatic episode being claimed by the Veteran. The Veteran's unit OC at UBON in 1966 (GPCAPT Cedric Thomas) has also advised that he has no knowledge of such security incidentinvolving RAAF airmen being taken hostage and threatened by Thai guards at UBON in 1966.' And in a further report of Writeway Research Service: 'GPCAPT Thomas stated that life at UBON was quite mundane. There was no perceived threat to speak of, and the camp life was centred on social, sporting and recreational activities (such as open air movies every evening, weather permitting). Against this background GPCAPT Thomas believes that had the security incident now cited by the Veteran occurred at UBON it would have represented the first and only such occurrence, and would have been widely debated amongst the camp population. GPCAPT Thomas has also consulted the former Chief Clerk (Warrant Officer) of the RAAF Contingent UBON (Base Squadron) who also has a good recall of events at UBON, but he also has no knowledge of the notifiable security incident being claimed by ex Warrant Officer Jan Schmidt.' 16 The AAT then expressed its conclusions, dealing first with the incidents with the guard and the push-bike, and then with the Red Alert incident. The AAT said: '56. … In the Tribunal's view the incidents with the guard and the push-bike may have raised in the applicant feelings of anger and frustration. The applicant may have even felt trepidation. However, the Tribunal does not accept that the applicant felt in fear for his life or of injury, as required by the definition of experiencing a severe stressor as set out in the relevant SoPs. Whilst the applicant may have subjectively experienced some fear, objectively there does not, on the evidence before the Tribunal, appear to be any objective suggestion that the applicant was in any real danger. 57. As to the Red Alert incident the Tribunal is satisfied on the evidence that the incident did not occur as described by the applicant. The Tribunal is satisfied on the evidence that the applicant did not fear for his life or safety as required by the definition of experiencing a severe stressor as required by the relevant SoPs during this incident. The evidence relied on by the Tribunal is that such events were rare and in any event there was no objective threat to the base or to personnel. 58. In this case the Tribunal is therefore not persuaded that any of the events described by the applicant were of such a nature as to raise feelings of actual or threat of death or serious injury to the applicant. The Tribunal finds the applicant did not experience severe stressors as defined in the relevant SoPs and does not satisfy the relevant factors as set out above.' 17 The Notice of Appeal asserts that the questions of law raised on the appeal are: 'A. Whether the learned member correctly applied Stoddart v Repatriation Commission [2003] FCA 334 and Woodward v Repatriation Commission [2003] FCFCA 160 in determining whether the Applicant suffered a severe stressor under Statement of Principle No. 3 of 1999 (as amended). B. Whether the learned member was entitled to rely upon evidence that certain events were rare and were not objectively threatening to support a finding of fact that the Applicant did not fear for his life or safety. C. Whether the learned member was entitled to measure the Applicant's subjected [sic, subjective] fear by determining if there was an objective threat to the Applicant's life, without consideration of the Applicant's subjective interpretation of the event.' 18 In respect of a claim such as the applicant's (which was made after 1 June 1994), s 120(3) of the Act requires that the Commission: '… shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining [a disease was a war-caused disease] … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.' 19 It is convenient to deal first with the contention on behalf of the applicant that the finding of the AAT that the Red Alert incident did not occur as described by the applicant was a finding of fact which was not reasonably open to it on the evidence. 20 The finding by the AAT that the Red Alert incident did not occur 'as described by the applicant' has, in my opinion, to be judged against the conflict in the evidence concerning the Red Alert incident, some of which the AAT referred to in its reasons. 21 Squadron Leader Helman had written a letter addressed 'To Whom it may Concern' which was in evidence before the AAT, which letter said in part: 'I also recall that during my time in country, we were placed on "Red Alert" on at least three occasions. This resulted in a general "Stand To" (threat of attack imminent). LAC Schmidt joined our group in June 1966 and was present during at least one of the "Stand To" situations. On each occasion, this resulted in our group having to complete extended shifts in the bunkers located in close proximity to the Sabre aircraft. As a result of the threat, I personally developed an extreme state of anxiety with expectation of death or serious injury. While not being able to speak on behalf of the other members of the group: I believe that most of them also developed some problems. I would think that Hank Schmidt would have been one of these people, considering his youth at the time, (I think he may have been one of the youngest member of our group). To compound the situation, the bunkers were renowned havens for snakes. Further, at the time, our attachment was "open-ended" (no fixed date of return to Australia). This was also a most worrying situation, as without exception, all other members attached to Ubon had a cease by date and could plan on going home.' 22 The AAT contrasted that account with the information contained in the report by Writeway Research Service: 'It is noted that 10 days after the (then) AC Jan Schmidt arrived at UBON the base was put on full alert at 2200 hrs on 24 Jul 66 as a consequence of the US Air Force (USAF) radar unit plotting unidentified aircraft (thought to be helicopters) just five miles north of the base. The UBON base was placed on "RED ALERT" for the first and last time during the history of the base, and RAAF personnel were issued with personnel weapons and ammunition in the event of an enemy ground assault. The USAF F4 Phantom jet fighters were scrambled, USAF helicopter flare ship dropped flares, but nothing was found. The security status of the base was reduced to "AMBER ALERT" on 25 Jul 66, and then called off altogether when it was established that the "blips" visible on the base radar was most likely to have been the result of some meteorological phenomenon due to the rapid movement of pockets of supersaturated air moving towards the UBON airbase.' 23 The report by Writeway Research Service was based on a "Background paper on RAAF Contingent, Ubon", annexure 4 to the report, which contains the following: 'There is only one recorded "RED ALERT" at the UBON air base, and this security "incident" occurred at 2200 hrs on 24 Jul 65 [sic, should be 66] when the entire UBON air base was placed on full alert after an "unidentified aircraft" had been sighted on radar about five miles north of the base. A US Air Force flare ship dropped flares in the immediate area and USAF Phantom fighter-bombers were scrambled without any result. This "RED ALERT" state was reduced to "AMBER ALERT" after the USAF air activity had concluded; but as a matter of precaution the UBON camp was closed (with no local leave) and personal weapons and steel helmets were issued. There is no record in the RAAF Base Squadron's records that shows just how long the UBON air base remained in the "AMBER" state of alert (most likely no more than 48 hours). There were many other false "alerts" at the airbase reported by the RAAF Contingent UBON of radar sightings that were later determined to have been the product of meteorological phenomenon due to rapid movement of pockets of supersaturated air.' 24 There was also in evidence a written account of a single Red Alert incident in the statement of Mr Schmidt dated 21 August 2003. In that account Mr Schmidt indicated that he removed a rubber bullet as the first round in his SLR, and that another person with him did the same, and that at some time during the evening that person fired a round into the jungle, believing that he had seen something. Mr Schmidt said that their orders were not to shoot unless there was an order to fire. He said that the position in which he was located was directly under a large spotlight, and there was some conversation about shooting out the light because of the fact that they were well exposed in that area. His account included the following: 'To the best of my recollection I stayed on duty for approximately 48 hours which was the period of the Red Alert. I can't recall exactly what I did during that 48 hour period but to the best of my recollection I do not recall having any opportunity to have any sleeping time. Even today I often have intrusive thoughts about that shot being fired and standing under the light exposed throughout the night. In my dreams I am running away but before I am caught I wake up. I don't know who is chasing me. Sometime I am riding a pushbike and it's the same dream, I am running away but I wake up before I am caught.' 25 I have earlier noted that the history of Mr Schmidt's service in Ubon, as recorded by Dr Rogers and Dr Likely, made no reference to any Red Alert incident in Ubon. This omission was the subject of express reference by the AAT: 'Mr Schmidt was asked why he had not mentioned the Red Alerts to Dr Rogers when he saw him as reported at folio 23 of the "T" documents. Mr Schmidt said that he did not tell Dr Rogers about the Red Alerts because of the Secrecy Act.' And: 'Again Mr Schmidt was asked in cross-examination why he had not mentioned the Red Alerts to Dr Likely. Mr Schmidt responded that it was something he was not prepared to talk about. He said that after a heart attack he had been left a little blank in the mind.' 26 It is impossible to conclude that there was no evidence to support the finding of the AAT that 'the Red Alert incident … did not occur as described by the applicant.' The AAT did not reject the happening of a Red Alert incident. What the AAT did reject was that the applicant feared for his life or safety, as he had belatedly claimed. 27 This ground of complaint is not made out. 28 For the applicant it was submitted that in determining what is meant by "severe stressor" in Instruments No. 3 of 1999 (as amended) and No. 76 of 1998, the correct approach was that as stated by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 ("Stoddart") at 296 where his Honour said: 'In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.' 29 This passage was expressly referred to by the AAT in the context of the need "for the Tribunal to have regard to the principles set out in [Stoddart and Woodward]". 30 Woodward v Repatriation Commission (2003) 200 ALR 332 ("Woodward") at 357-378 accepted the reasoning of Mansfield J in Stoddart and said: '… it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.' 31 The AAT also specifically referred to the observation of the Full Court in Repatriation Commission v Stoddart (2003) 77 ALD 67 at 75 that: '… that events that are objectively "neutral in character" may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.' 32 The central claim for the applicant is that the AAT did not consider the claimed events as judged by an objective observer in the position of, and with the knowledge of, the applicant at the time. Such a judgment would take into account, it was submitted, that the applicant was only eighteen years of age and had only been in Ubon for a short period of time (he being there only for a total of ten weeks); that the applicant was one of the youngest in his troop and on his first overseas posting; and his perception of the Red Alert event was that the Ubon base was on Red Alert and on standby for imminent attack. 33 The assertion for the applicant is that: 'The Tribunal has simply asked whether or not an objective threat existed, and answered that in the negative.' 34 In my opinion, this misstates the reasoning of the AAT. 35 I accept that the Tribunal concluded that, objectively, the applicant was not in any real danger on the occasions of the incident with the guard and the incident with the push-bike. I accept also that in relation to the Red Alert incident, the AAT found that there was no objective threat to the base or to personnel. 36 However, the reason for the AAT's finding that it was satisfied beyond reasonable doubt that the applicant did not experience a severe stressor in terms of the relevant SoPs was that, in respect of the incident with the guard and the push-bike, the applicant did not feel 'in fear for his life or of injury, as required by the definition of experiencing a severe stressor as set out in the relevant SoPs'. In respect of the Red Alert incident, the reason for the AAT's finding is that: '… the applicant did not fear for his life or safety as required by the definition of experiencing a severe stressor as required by the relevant SoPs during this incident.' 37 A subjective fear for one's life or safety is a necessary integer of the requirement of 'experiencing a severe stressor'. The AAT found that no such integer existed in this case. That finding was a finding of fact, and open to the AAT on the evidence. 38 It seems to me, particularly having regard to the conclusions of Dr Rogers and Dr Likely, that it was open to the AAT to find that the applicant experienced a severe stressor or stressors in terms of the relevant SoPs, as a matter of fact. 39 However, the AAT did not so find, and its failure to do so does not constitute an error of law, which has to be demonstrated for Mr Schmidt's appeal to be successful. 40 The conclusions of the AAT were in my view open to it, and no error of law attends its findings. 41 The application is dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .
Solicitor for the Respondent: Australian Government Solicitor
Schmidt
Repatriation Commission