Bastion and Repatriation Commission [2002] AATA 679 (12 August 2002)

Last Updated: 13 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1845

VETERANS' APPEALS DIVISION )

Re William Leslie Bastion

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date 12 August 2002

Place Sydney

Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Bastion has a war-caused condition of post traumatic stress disorder with major depression and is qualified for Disability Pension for this condition with effect from and including 12 May 1999. 2. The Disability Pension for all of Mr Bastion's war-caused conditions is assessed at 90 per cent of the General Rate with effect from and including 12 May 1999. .............................. Ms S M Bullock Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Disability Pension - Operational Service - Reasonable Hypothesis Diagnosis - Post Traumatic Stress Disorder - Assessment - Special Rate

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 24, 119, 120, 120A

AUTHORITIES

Repatriation Commission v Deledio (1998) 49 ALD 193

O'Neil v Repatriation Commission (2001) 34 AAR 290

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Budworth (2001) 66 ALD 285

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119

Re Mulvany and Repatriation Commission (2000) 59 ALD 602

Re Repatriation Commission and Freeman (2000) 61 ALD 259

Repatriation Commission v Binding [1999] FCA 974

Re O'Leary and Repatriation Commission [2000] AATA 836

Dixon v Repatriation Commission (1999) 59 ALD 315

Forbes v Repatriation Commission (2000) 58 ALD 394

Cavell v Repatriation Commission (1988) 9 AAR 534

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

12 August 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr William Leslie Bastion, the Applicant, of a decision of the Repatriation Commission ("the Commission") made on 15 November 1999 (T2), which on review by the Veterans' Review Board ("the Board") on 22 November 2000 was varied by amending the diagnosis of "nervous condition" to "post traumatic stress disorder with major depression", and then affirmed the decision as varied (T17). The Board consented to the withdrawal of the application for review in relation to the conditions of hypertension, seborrheic dermatitis and alcohol abuse pursuant to subsection 155(1) of the Veterans' Entitlements Act 1986.

2. A hearing was held before the Tribunal in Sydney on 4 December 2001. Mr Bastion provided oral evidence to the Tribunal as did Consultant Psychiatrist, Dr A Dinnen. Mr Bastion was represented by Mr N Dawson of Counsel. The Respondent, the Commission, was represented by Mr J Marsh, Senior Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T21) and the following exhibits:

Exhibit No. Description Date

A1 Statement by the Applicant, Mr W L Bastion 11 April 2001

A2 Report by Dr A Dinnen, Consultant Psychiatrist 3 May 2001

R1 Report by Mr P Defina, Clinical Psychologist, Vocational Capacity Centre 28 May 2001

R2 Report by Dr J Chen, Consultant in Occupational Medicine 1 May 2001

R3 Report by Mr J Tilbrook, Writeway Research Service 12 August 2001

R4 Clinical Notes by Dr D McKay, General Practitioner Various

R5 Report by Dr J W Shand, Psychiatrist 18 June 2001

R6 Employment Records from Pricewaterhouse Coopers HR Services 11 July 2001

R7 Additional Employment Records from Pricewaterhouse Coopers HR Services 26 June 2001

R8 Department of Defence Record of Service 19 February 2001

ISSUES

3. The issues before the Tribunal are:

(i) Whether or not post traumatic stress disorder with major depression is the correct diagnosis of Mr Bastion's psychiatric condition;

(ii) Whether or not Mr Bastion is entitled to Disability Pension for his psychiatric condition of post traumatic stress disorder with major depression or some other psychiatric condition;

(iii) What is the correct General Rate assessment of Mr Bastion's war-caused conditions;

(iv) Is Mr Bastion qualified for payment of pension at the Special Rate.

SERVICE

4. Mr Bastion served in the Royal Australian Air Force ("RAAF") from 5 January 1956 to 4 January 1968 and from 24 January 1969 to 1 December 1980 (Exhibit R8). His eligible war service was with the Far East Strategic Reserve in North-East Thailand from 22 March 1961 until 9 March 1963. Mr Bastion also rendered defence service as defined in Part 1V of the Veterans' Entitlements Act 1986 from 7 December 1972 until 1 December 1980.

LEGISLATION

5. A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").

6. Mr Bastion rendered both operational and defence service. As the issues to be determined in this matter relate to Mr Bastion's period of operational service, the Tribunal will confine its consideration to that period of operational service and the requisite legislative provisions.

7. Section 5D of the Act deals with the definition of injury and disease.

8. Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant:

"9 War-caused injuries or diseases

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(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;

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

..."

9. Section 13 of the Act deals with eligibility for pensions.

10. Section 24 of the Act deals with qualification for the Special Rate and as relevant states:

" 24 Special rate of pension

(1) This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

..."

11. Section 119 of the Act reflects that decision-makers are not bound by the technicalities and that decision-making under the Act is of an administrative nature rather than judicial. Section 119 also allows decision-makers to take into account matters such as the effects of the passage of time, the absence or deficiency in records and diminished memory.

12. The standard of proof to be used in relation to Mr Bastion's operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:

"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.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

..."

13. In relation to the Tribunal's decision about the correct diagnosis of Mr Bastion's psychiatric condition, the standard of proof to be applied is contained within subsection 120(4) of the Act which provides:

"4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

..."

14. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:

"120A Reasonableness of hypothesis to be assessed by reference to

Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)the kind of injury suffered by the person; or

(b)the kind of disease contracted by the person; or

(c)the kind of death met by the person;

as the case may be...."

STATEMENT OF PRINCIPLES

15. The Statement of Principles considered relevant by the Tribunal and agreed to by the parties is Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder.

EVIDENCE OF MR WILLIAM LESLIE BASTION

16. Mr Bastion was born on 12 May 1938 in Sydney. He left school and undertook an apprenticeship as a fitter and machinist. Mr Bastion did not complete the apprenticeship and worked as a labourer for approximately 12 months.

17. Mr Bastion provided a statement to the Tribunal dated 11 April 2001 (Exhibit A1) which he declared was true and correct. In 1956, Mr Bastion joined the Air Force and had a period of approximately 23 years of service, with an approximately 12 to 18 month break after the first 12 years. In the interim period between the two periods of service in the Air Force, Mr Bastion stated that he worked as a computer technician at IBM. Mr Bastion's initial training was as a radio technician, requiring him to service the electronics in the aeroplanes.

18. In 1961, Mr Bastion was allotted for overseas service at Butterworth in Malaya. From there he went in 1962 to Ubon.

19. Mr Bastion related to the Tribunal an incident which occurred on 20 June 1962 in Ubon. Mr Bastion remembered being awakened in the dark at approximately 3am. He was told to go to the armoury tent which was lit by a halogen lamp where he was issued with a Bren Gun and ammunition and directed to dig a trench. He was told bluntly that the camp was under imminent threat of attack and he should prepare himself. Mr Bastion told the Tribunal that he remembered being asked whether he wanted a Bren Gun or a rifle. He chose the Bren Gun because it had a rapid rate of fire and it was easier to provide a field of fire ahead of where he would be operating. It was when lined up outside the armoury tent that he first heard that the base was under threat of attack and that there had been radar signals indicating this. Mr Bastion explained that he was ordered by an officer to dig a trench. He dug the trench with a "trenching tool" which is a short, small shovel and he supposed that he obtained this from the armoury tent. Mr Bastion could not remember how big the trench was, but recalled that it did not take long to dig because the ground was very soft. Mr Bastion told the Tribunal that he was 24 years old at that time. He could not recall the proximity of the other men. There was no talking between the men. Mr Bastion stated that he could remember checking the ammunition bag while in the trench and checking the magazine to make sure that the ammunition was loaded properly. Mr Bastion denied the possibility that he was not in a trench, providing the evidence that two days after the incident, there was heavy rain and all the trenches filled up with water.

20. Mr Bastion told the Tribunal that in the trench he was by himself and he was terrified. He thought he was going to be attacked. When the sun came up, he and the other men were directed to go to the "flight line" to prepare the aircraft for flying. The aircraft at that time were already armed with missiles and guns loaded. These circumstances made Mr Bastion think that this was not an exercise and confirmed his belief that the base was under threat of attack. Mr Bastion agreed that apart from the omission of details concerning the issue of arms and the digging of trenches, the account recorded in Mr Tilbrook's report of 12 August 2001 (Exhibit R3) at pages 10 and 11, accorded with his memory of events as noted in the Unit History Sheet from the RAAF Contingent in Ubon for June 1962. The history recorded by Mr Coulthard-Clark in Chapter 1 of the official history of "The RAAF in Vietnam" accorded more closely with Mr Bastion's recollection of events.

21. Mr Bastion acknowledged that the official report of 20 June 1962, provided by Wing Commander J W Hubble in the Unit's monthly report to Canberra contained no detail of the digging of trenches or provision of arms (Exhibit R3, p10). Mr Bastion maintained that he was provided with a Bren Gun and ordered to dig a trench. Mr Bastion did not remember other matters mentioned in the official Unit History such as there being a tent pole shortage, but stated that this did not apply to him. Mr Bastion also did not remember other incidents recorded in the Unit History for June 1962, including the film projector blowing a light or the visit of Sir Garfield Barwick. Mr Bastion did not play golf and therefore was unaware of a mini golf championship also recorded in the official history.

22. Mr Bastion confirmed that he had told Dr Dinnen that his problems had started in 1962 when he had been sent to Ubon for exercises. Mr Bastion believed that he was going to undertake exercises or war games but it turned out to be more than just exercises. Mr Bastion told the Tribunal that he knew he was going to an operational training exercise as part of the South East Asia Treaty Organisation ("SEATO"). Mr Bastion explained that he had told Dr Dinnen that he did not know what missions the Sabre Aircraft were flying on. Mr Bastion stated that he has since learned subsequent to his airforce service, that the missions were of a search and destroy nature. Mr Bastion told the Tribunal that he thought that normally, war games or exercises did not take place with aircraft loaded with live ammunition and missiles. He later agreed that it was part of normal airforce training for pilots to use live ammunition. However, when in Ubon on 20 June 1962, when Mr Bastion saw that the aircraft were loaded with ammunition and he had been told that there was a threat of attack, he thought that this was an operational mission and not training. Mr Bastion also confirmed for the Tribunal that he was never attacked during that period in Ubon or that he never fired his weapon.

23. Mr Bastion told the Tribunal that he did not know what the "Rules of Engagement" for the RAAF in Thailand were, as detailed in Mr Tilbrook's report (Exhibit R3, p3). Mr Bastion maintained that from the information he had been provided since leaving the airforce, the Ubon flights were search and destroy missions, even though he acknowledged at the Hearing , that according to the Rules of Engagement, this could be considered a misconception. The Tribunal was informed by Mr Bastion that he believed that as part of the ground staff, he had been misled by the airforce because he and others believed they were going to Ubon on exercises and there was no danger. There was danger and the area should have been considered as an operational area in 1962. In holding this view, Mr Bastion further acknowledged that he was not in battle or that there was never, whilst he was there, any enemy action.

24. Mr Bastion stated that he was angry at the politicians because he believed that the reason troops were sent to Ubon was related to a political decision and they were innocently posted into a war area. He noted that operational service at that time was not recognised until much later, he believed in 1995.

25. Mr Bastion explained that the stress he had concerning politicians was that he blamed them for what happened to him in that it was the politicians who sent men like him to Ubon to participate in what they thought was an exercise. Mr Bastion stated he is very angry about this, but noted that since being on medication prescribed by his psychiatrist, his anger is more controlled.

26. Mr Bastion told the Tribunal that he would wake up two or three times a night not necessarily with nightmares but would wake up in "a sweat" (T16, p79). This started in about 1975 or 1976. Mr Bastion has no recollection of why he would wake up or of any details of possible dreams. He agreed he could have woken up hot and sweaty from other things besides his experiences at Ubon. Mr Bastion further agreed that in June 1976, he had consulted an Airforce Doctor about problems of irritability and was then referred to another doctor (T3, p9). Mr Bastion did not know the referral was to a psychiatrist. Mr Bastion agreed he had previously had marital problems. Mr Bastion also acknowledged that at that time, there was no nightmares of the difficulties he experienced in Ubon or waking up being hot and sweaty. Mr Bastion stated that back in 1976, he did not realise the impact of his service in Ubon. Mr Bastion did not agree that the logical conclusion from his service medicals was that he was not having any problems related to Ubon. Mr Bastion noted that there was no mention of the impact upon him of his Ubon service in 1970 when he had trouble in his first marriage, stating that the problems he had at that time related to his excessive drinking. Mr Bastion later agreed that another factor in the marital breakdown was his wife's infidelity (T3, p10). It was in about 1970 that Mr Bastion was first referred for psychiatric help. His continued excessive alcohol consumption was subsequently discussed with Mr Bastion's second wife who delivered an ultimatum that unless he ceased his heavy alcohol consumption, she would leave. Mr Bastion stated that the situation of having a wife and daughter who loved him was worth the effort of cutting down his alcohol consumption.

27. When Mr Bastion rejoined the airforce for his second period of service, he had not worried about any problems in Ubon because he did not realise the impact. He stated to the Tribunal, as he had told Dr Dinnen and Dr Shand, that he enjoyed his career in the airforce. Mr Bastion told the Tribunal that he also knew that by rejoining the airforce in 1969, he would be provided with medical care.

28. Mr Bastion noted that his second wife has told him on a number of occasions that she wakes up from him kicking around and throwing off the covers. Mr Bastion does not remember nightmares but he has been perspiring profusely. Since being treated by Consultant Psychiatrist, Dr G Altman, Mr Bastion has found that his sleep is more regulated and controlled and he now rarely wakes in the middle of the night (Transcript, p42).

29. After the airforce, Mr Bastion remained living in Canberra. His first position in 1981 was in the Court Reporting Service for two years. Mr Bastion next worked with a security firm for a short period, finding employment later at the CSIRO, involved in building maintenance activities. From approximately 1990 until 1997, Mr Bastion worked for ASIO. He left this employment "Because the job was getting on top of me and ASIO itself had been-was being restructured at the time" (Transcript, p21). In ASIO, just prior to leaving that organisation, he had been promoted to Senior Information Technical Officer Grade C. This was a position in a unit similar to a police internal investigation branch in which there was a great deal of secrecy and Mr Bastion had to be careful about what he said and to whom he talked. Mr Bastion was offered a redundancy package and he accepted it. He stated that there was no medical issue in terms of this retirement.

30. After accepting the voluntary redundancy, Mr Bastion did no work for a period of approximately 18 months. He then commenced working with Comcar in about March 1999. Mr Bastion was medically examined for his position and was found to be fit to be a driver. There was a health condition of emphysema mentioned and no other health problems. Mr Bastion stated that the medical examination was typical of a government examination where there would be a form which required ticks, "yes" or "no". Mr Bastion stated that he filled in the form and signed it. The position involved Mr Bastion chauffeuring a range of Commonwealth public servants, politicians or dignitaries around Canberra. Mr Bastion estimated he would work from four to ten hours per day depending on how long Parliament was sitting or whether there were any special events. The hours would vary from day to day. Mr Bastion worked normal weekdays Monday to Friday but often worked on Sunday nights as many politicians returned to Canberra prior to commencement of the working week. In a busy week, Mr Bastion estimated he could work a ten hour shift and up to 60 hours per week. When Parliament was not sitting, he would not work. Mr Bastion told the Tribunal that it was impossible for him to put an average on his working hours per week.

31. Mr Bastion left Comcar on 22 June 2000 (Transcript, p44). There is no particular significance of this date. Mr Bastion told the Tribunal that he left the Comcar job because he wanted to reduce the stress on himself. He had discussed this with Dr Altman and his wife. Mr Bastion also told the Tribunal that he had had some discussions with a veterans' advocate in Queanbeyan about the problems he was having at work and problems at home with his wife, daughter and grand-children. Mr Bastion noted that he was arguing with his wife and was angry for no apparent reason and then would get upset with himself. He had in fact then been referred by that advocate to Dr Altman and had been consulting Dr Altman approximately every five weeks since about February or March 2000. Mr Bastion was still working when he first consulted Dr Altman but ceased work approximately three months later. Dr Altman noted that Mr Bastion had been an inpatient in Eversham Clinic on three occasions for periods of three or four weeks on each occasion. The most recent admission occurred in August / September 2001. Mr Bastion told the Tribunal that his cessation of work at Comcar was not an age-related retirement. He told his employer he was leaving because of medical reasons. Mr Bastion agreed that he had not taken any sick leave but added that it was a casual job which allowed him time off work.

32. Mr Bastion agreed that he has significant lumbar and cervical spine problems which may have some future impact upon his work capacity. He noted however that this condition had not been a problem in the past. Mr Bastion was referred to radiological reports from Canberra Imaging Group dated 19 February 1999, which noted at the C5/6 level, that there is a "marked disc height loss with end plate spurring, the posterior component of this narrows the canal. There is also marked osteoarthrosis of the uncovertebral joints causing foraminal narrowing, particularly on the left "(Exhibit R4, p9). Mr Bastion noted that he had had pains appearing in his arms in 1999 particularly on the upper forearm and there seemed to be no reason for the pain that precipitated the referral for an x-ray. Mr Bastion noted that he has had some physiotherapy on his neck, massage and the use of a "stretching-type device to try and actually lift the discs themselves" (Transcript, p46). He stated that since that time, he has had some problems with his right leg and a similar sort of problem at the base of his spine. He noted that these problems he believed had occurred when he was still in the airforce, towards the end of his airforce career in the late 1970s. He had had the problems with the leg and neck on and off. Mr Bastion noted that the problems were a nuisance in his life and the pain has never been so bad that he could not put up with it. He noted that he was always cognisant of the fact that in the RAAF, he could obtain medical treatment if there was anything wrong with him. Mr Bastion noted that these problems did not impact upon him in driving for Comcar. He stated that driving the cars was extremely comfortable and his spinal conditions had no impact on his decision to leave work.

EVIDENCE OF DR A DINNEN, CONSULTANT PSYCHIATRIST

33. Dr Dinnen provided a report dated 3 May 2001 (Exhibit A2). Dr Dinnen opined that having examined Mr Bastion and considered documentation, it was more likely than not that Dr Altman's assessment of Mr Bastion was correct in that Mr Bastion has post traumatic stress disorder with major depression. Dr Dinnen further concluded that a significant factor in the development of the condition was Mr Bastion's service in Ubon. The condition causes ongoing incapacity and would prevent him "at present from working more than eight hours a week" (Exhibit A2). Dr Dinnen assessed post traumatic stress disorder with major depression as having an impairment rating of 28 points from Chapter 4 of the "Guide to the Assessment of the Rates of Veterans' Pension" ("the Guide"). Dr Dinnen preferred Dr Altman's opinion to that of Dr P Cullen, Psychiatrist, who on 7 September 1999, opined that there was no psychiatric diagnosis, but that Mr Bastion has an anxiety trait and a moderate preoccupation with physical health. Dr Cullen concluded that Mr Bastion may have the possibility of being vulnerable to the development of depression in the future (T11, p51). Dr Cullen noted that Mr Bastion had a psychological breakdown requiring brief intervention in the 1960s and 1970s but that in 1999, there was no major disability.

34. At hearing, Dr Dinnen noted that depression symptoms were part of the post traumatic stress disorder condition. Dr Dinnen further noted, referring to the relevant Statement of Principles, Instrument Number 3 of 1999 as amended by 54 of 1999 concerning Post Traumatic Stress Disorder and the DSM-1V diagnostic criteria, that the stress experienced by Mr Bastion in Ubon in June 1962, in his opinion, met the definition of a severe stressor. Dr Dinnen noted that the evidence provided by Mr Bastion to Dr Altman and himself was consistent with an event occurring in the early hours of the morning when Mr Bastion believed there was a threat of attack and was asked to dig trenches and was allocated with a weapon. Dr Dinnen reported that at that time, he understood Mr Bastion to be located in a frontline position by which he meant a "frontline operational air field" (Transcript, p54). Dr Dinnen stated that as a Consultant Psychiatrist, who had set himself up as an expert "in the military adventures of Australia throughout the last hundred years", most servicemen he has treated through the years, do not know the history of the operational theatre of war in which they have served. They mostly do not know about the politics of the conflict in which they are involved. What servicemen and women do know is that they are part of a defence service ordered to serve in a particular area. Dr Dinnen opined that most servicemen would not know until they get to their posting, what they are likely to encounter.

35. From his discussions with Mr Bastion, Dr Dinnen considered that Mr Bastion was under the belief that he was participating in RAAF training exercises. Shortly after arriving in Ubon, Mr Bastion found he was digging a trench in preparation for what he believed was an enemy attack. As he understood this, Dr Dinnen noted that Mr Bastion was terrified that he was about to be thrust into frontline operational action. The fact that this had not occurred and Mr Bastion and the Unit were not overrun by communist insurgents, nor were they attacked by enemy aircraft, does not bear on Mr Bastion's state of mind at the time the traumatic event occurred. Dr Dinnen noted that from his point of view as a psychiatrist, Mr Bastion believed he was under attack and was terrified at that prospect (Transcript, p54).

36. Dr Dinnen referred to the Statement of Principles and in relation to Mr Bastion being exposed to a traumatic event and the definition of this. Dr Dinnen opined that the fact that there was no actual attack on Mr Bastion and no shots fired, is still covered with reference to paragraph 2(b)(A) of the Statement of Principles and the requirement of there being a threat of serious injury or threat to the physical integrity of self or others. Dr Dinnen did not agree with Dr Shand's opinion that the perception of danger which was not realised did not satisfy the Statement of Principles diagnostic definition or that of the Factor 5(a) of experiencing a severe stressor. Dr Dinnen opined that Dr Shand was wrong in his opinion and provided an example of someone running down one hundred and ten stairs at the World Trade Centre to safety and then not being able to satisfy the definitional requirements, thus preventing a diagnosis of post traumatic stress disorder being made. Dr Dinnen explained that the world standard in psychiatry for understanding the nature of traumatic events and the impact that they have on a person's psychological health, generally accepts that a perception of danger, where there is real reason to perceive danger at the time, but no adverse outcome, is nonetheless a traumatic event. Dr Dinnen explained that the background for the individual's perception of a severe stressor cannot be an imaginary or trivial matter. The example provided by Dr Dinnen to illustrate his point was that if a man became very disturbed and distressed about the prospect of the Twin Towers in New York being destroyed, but he was some 50 miles away and he had no one involved directly or indirectly in that event, then that could not be considered to be suffering a severe stressor in accordance with the Statement of Principles. Specifically in Mr Bastion's case however, Dr Dinnen noted that Mr Bastion had an experience where there was some real basis for his concern that he was in danger, because he was told there was a threat of imminent attack, he was ordered to dig a trench and given a weapon. There was therefore a reality to Mr Bastion's perception. It was not fantasy but a perception of an event where there was a real threat. Even though it turned out subsequently that the threat did not eventuate, it still was a traumatic event for Mr Bastion.

37. Referring to the DSM 1V diagnostic criteria contained within the relevant Statement of Principles, Dr Dinnen stated he was satisfied that Mr Bastion was exposed to a traumatic event as detailed in paragraph 2(b)(A) and that Mr Bastion experienced great terror as described to Dr Dinnen by the Applicant.

38. In relation to paragraph 2(b)(B) within the Statement of Principles, which deals with the traumatic event being persistently re-experienced in one or more ways as detailed, Dr Dinnen noted that Mr Bastion had distressing memories and recollections becoming more prominent in recent years [2(b)(B)(i)] which came to light when he started psychiatric treatment. Dr Dinnen noted that since he examined Mr Bastion, he has been put on heavier medication and this treatment has resulted in Mr Bastion presenting with less objective stress than if he were to present untreated. Dr Dinnen did not consider that Mr Bastion met diagnostic criteria 2(b)(B)(ii), which deals with having recurrent distressing dreams of the event.

39. In relation to diagnostic criteria 2(b)(C), concerning persistent avoidance of stimuli associated with the trauma and the numbing of general responsiveness, Dr Dinnen noted that Mr Bastion described the effect of his condition on his emotional relationships which is covered by diagnostic criteria 2(b)(C)(v) and (vi) which deal with feelings of detachment and estrangement from others and a restricted range of affect. Dr Dinnen further opined that Mr Bastion used alcohol in the early years after 1962 to avoid thoughts and feelings arising out of the event in Ubon [2(b)(C)(i)]. Mr Bastion also avoided activities, places or people arousing recollections of the trauma [2(b)(C)(ii)]. Dr Dinnen noted that in fact Mr Bastion was treated for depression in 1970 and there was also conflict in his relationships about the level of his alcohol consumption.

40. Dr Dinnen opined that in relation to criteria 2(b)(C)(iii), which deals with an inability to recall an important aspect of the trauma, Mr Bastion was not fulsome in his description of the alleged event in Ubon. Therefore, Dr Dinnen opined that Mr Bastion met the diagnostic criteria 2(b)(C)(i), (ii), (iii), (v) and (vi).

41. Dr Dinnen opined that it is not unusual for people who have been traumatised to nonetheless return to the traumatic environment. Thus, for Mr Bastion to return to service in 1969, was not necessarily inconsistent with him having avoidance behaviour. The best psychological explanation for such action is that a person may try to master his or her fear, for example, by getting back onto a horse which has just thrown that person.

42. Dr Dinnen further noted that a person could have post traumatic stress disorder without evidencing symptoms for some time, until a life crisis such as marital breakdown precipitated the presentation of symptoms. The fact that when Mr Bastion was treated by a psychiatrist in 1970 and 1976 there was no mention of post traumatic stress disorder, did not mean that the symptoms were not present, Dr Dinnen stated. Dr Dinnen opined that in retrospect, the depressive illness treated in 1970 and 1976 was a consequence of traumatic service. A diagnosis of post traumatic stress disorder was not identified at those times because the diagnosis did not exist. At that time, previous war experiences were discounted by clinicians and by patients, Dr Dinnen stated.

43. In relation to Dr Shand's opinion that the possible diagnoses of Mr Bastion's psychiatric condition were: a personality disorder of the obsessive compulsive type; personality disorder with alcohol abuse; personality disorder not otherwise specified; or, a chronic adjustment disorder with depressed and anxious mood with strong contributions by Mr Bastion's personality disorder, Dr Dinnen did not agree with any of these diagnoses. Dr Dinnen stated that what Dr Shand was in fact describing by these diagnoses, in his view, was a chronic post traumatic stress disorder. Dr Dinnen noted that historically, what is now called post traumatic stress disorder has been given various labels over the past years. Mr Bastion's symptomatology described by Dr Shand has been consistent, including sleep disorder, distressing recollections of combat experience, somatic symptoms, anxiety, depressed mood and guilt feelings. Dr Dinnen opined that what Dr Shand has concluded is sufficient to warrant a diagnosis of post traumatic stress disorder and this was a good example of changing diagnostic categorisation and classification. Dr Shand had said that Mr Bastion has a neurotic reaction to a specific event and this was precisely what was dealt with in the Statement of Principles concerning Post Traumatic Stress Disorder, Dr Dinnen concluded.

44. In relation to Dr Dinnen's assessment under Chapter 4 of the Guide, he noted that he had concluded that Mr Bastion could not work for greater than eight hours per day based on Mr Bastion telling Dr Dinnen that he could not work. Dr Dinnen's opinion was formed on the basis of Mr Bastion's subjective response to questions about work combined with the doctor's clinical assessment. Dr Dinnen added that it is common for people suffering from depression to say they cannot cope with working and it is difficult to get a person to work if they feel they cannot. The reason there was a discrepancy between Dr Dinnen's assessment of 28 points and Dr Altman's assessment of 48 points is that Dr Dinnen made his assessment after Mr Bastion had been treated. Dr Altman's assessment is provided from the perspective of the treating psychiatrist and therefore he would probably have a better understanding of the underlying level of Mr Bastion's impairment. Dr Dinnen opined that Dr Cullen's conclusions of no major disability and no psychiatric diagnosis had to be balanced against the opinion of the treating psychiatrist and Dr Dinnen's own opinion.

EVIDENCE OF DR G ALTMAN, PSYCHIATRIST

45. Dr Altman provided a report dated 26 July 2000 (T16). Dr Altman took a history from Mr Bastion of him being woken up at about 3 am to be told to assemble at the armoury tent. Dr Altman reported the history that Mr Bastion was provided with arms and ammunition and directed to dig trenches because the unit was under threat of attack. Dr Altman noted Mr Bastion's reaction of it "freaked me out something shocking". He stated that during the night he was terrified as it had never happened to him before. He did not know what was going to happen and it was dark. The next morning Mr Bastion had noted to Dr Altman that the aircraft were loaded with missiles and it became apparent to Mr Bastion that this was not an exercise but "the real thing". Dr Altman noted Mr Bastion stated that he did not know what was going to happen after that and he was smoking tobacco and drinking more alcohol. Dr Altman noted Mr Bastion's symptoms following the experience in Ubon of increased smoking; increased binge drinking; becoming a loner; an inability to talk to people; wanting to be alone; feeling inadequate; suffering from mood swings such as being angry at the slightest thing or depressed; difficult relationships with his wife and daughter; no contact with the service at all; and, non-existent sexual activity. Dr Altman noted Mr Bastion did not report nightmares but he would wake up with feeling very hot, uncomfortable and sweating and this first occurred twenty-five years ago as reported by Dr Altman in 2000. Mr Bastion avoided thoughts associated with his Ubon experience and tries to think of something else. He avoids talking about his experiences and avoids watching war movies or attending reunions. When exposed to any reminders of his Ubon experience, Mr Bastion was noted to become distressed. His activities and hobbies have diminished and he reported difficulty in showing affection towards his loved ones. Mr Bastion reported to Dr Altman that he generally feels detached from others as he places a barrier between himself and other people. He has a sleep disturbance.

46. Dr Altman noted significant symptoms indicative of the major depression. In this regard Dr Altman noted low mood, sleep disturbance, diminished energy, low libido, low confidence and motivation and the cessation of activities which he formerly enjoyed.

47. Dr Altman noted a past psychiatric history of Mr Bastion suing a mental health worker, possibly at the colleges in the 1960s. At that stage Mr Bastion was having marital problems and he then saw another psychiatrist in Canberra in approximately mid 1999 on one occasion. In relation to his work situation, Dr Altman reported that Mr Bastion was finding it difficult to talk to his passengers and to the other drivers at Comcar. At previous jobs, Mr Bastion reported feeling uptight and worried. Further difficulties were noted with Mr Bastion working full time because he was always tired because of his sleep disturbance. In the employment at Comcar, Mr Bastion worked on a casual basis and could decline a job if he did not wish to take it and he took this opportunity from time to time.

48. Dr Altman noted that Mr Bastion married for the first time in 1965 and divorced in 1968 after his first wife had left him. The problems with the marriage related to his consumption of excessive amounts of alcohol and that he was suicidal. Mr Bastion married for the second time in 1975 and there have been times when this current marriage has been very problematic. There was a possibility of the second marriage dissolving in the late seventies but fortunately this has not eventuated.

49. Dr Altman concluded that as a result of his experience in Ubon, Mr Bastion suffers from severe chronic post traumatic stress disorder with associated major depression. In Dr Altman's opinion, Mr Bastion's psychiatric impairment from Chapter 4 of the Guide is 48 points. Furthermore, as a result of post traumatic stress disorder alone, Dr Altman opined that Mr Bastion is totally and permanently unfit to work and should be placed on the "T&PI" pension.

EVIDENCE OF DR J W SHAND, PSYCHIATRIST

50. Dr Shand provided a report dated 18 June 2001 having carried out a psychiatric assessment on 1 and 23 May 2001 (Exhibit R5).

51. Dr Shand noted that the history obtained from Mr Bastion was at first hard to believe, but became more credible when the extent of Mr Bastion's immaturity and naivety became clear. Dr Shand noted that Mr Bastion's alleged failure to make a connection about his anxiety and feelings of inadequacy and the alleged increase of his drinking and smoking so that he became a chronic substance abuser was difficult to comprehend. Dr Shand concluded that the overall history indicates a "long-standing Personality Disorder of the type "Not Otherwise Specified"". Dr Shand opined that Mr Bastion does not suffer from "Post-Traumatic Stress Disorder" or "Major Depression" nor does he suffer from "Alcohol Abuse/Dependence". In so opining, Dr Shand noted that if the history was reliable, the disorder comprising anxiety and probable depression was "related to the "incident" in Ubon in June 1962 although he [Mr Bastion] allegedly made this connection only during his second trip to Ubon from 7 November 1962 to 9 March 1963, when he had started abusing both alcohol and tobacco" (Exhibit R5, p8). Dr Shand noted the treatment by Dr Altman has led to an improvement of Mr Bastion's symptoms and related behaviour disorder.

52. Having considered the report of Consultant in Occupational Medicine, Dr J Chen, Dr Shand later diagnosed in his report that Mr Bastion's "Personality Disorder is of Obsessive-Compulsive type" and not a "Personality Disorder" of the type "Not Otherwise Specified". At page 9 of his report, Dr Shand opined at point 4 that Mr Bastion's "current diagnosis is Personality Disorder with Alcohol Abuse, not Post-Traumatic Stress Disorder nor Major Depression". At point 5, Dr Shand noted the diagnosis for Mr Bastion's condition is "Personality Disorder of Obsessive-Compulsive Type".

53. At point 12, Dr Shand opined that on the balance of probabilities Mr Bastion suffers from what used to be known as "neurotic reaction to the "incident" in Ubon in June 1962, in association with his long-standing Personality Disorder of Obsessive- Compulsive Type". Dr Shand concluded that the "best fit current psychiatric diagnosis would be Chronic Adjustment Disorder With Depressed and Anxious Mood with a very strong contribution from his Personality Disorder".

54. Dr Shand commented that Mr Bastion probably does suffer from depression from time to time, but this is probably related to his personality disorder.

55. Dr Shand did not agree with Dr Altman's assessment of the incident in Ubon qualifying as a major stressor because the mere perception of danger does not satisfy the Statement of Principles' definition of a severe stressor and furthermore in relation to major depression, Mr Bastion did not have a severe stressor within two years of the onset of the condition as is required by the relevant Statement of Principles.

56. Dr Shand assessed Mr Bastion under Chapter 4 of the Guide as having an impairment of 17 points.

57. In relation to work, Dr Shand opined that prior to Mr Bastion's psychiatric treatment, his condition would have prevented him from continuing his remunerative work whether eight hours or more per week or 20 hours or more per week. Dr Shand considered that Mr Bastion's psychiatric condition would have prevented him from working during the assessment period from 12 May 1999 to the present. Dr Shand considered that Mr Bastion's Personality Disorder has been a sole cause of any unfitness for work. Dr Shand further concluded that the longitudinal history from childhood to the present day is consistent with a diagnosis of "Personality Disorder" which makes the "extraordinary psychiatric history following the "incident" in Ubon in June 1962, plausible" (Exhibit R5, p11). Dr Shand noted that if the treatment program is successful in "resolving at least the dynamics of the "neurotic" reaction to the "incident", or at least improving [Mr Bastion's] ability to cope with his symptoms, particularly his tendencies to abnormal anger, he may become employable" (Exhibit R5, p11).

EVIDENCE OF MR J TILBROOK, WRITEWAY RESEARCH SERVICE

58. Mr Tilbrook provided a report dated 12 August 2001 (Exhibit R3).

59. Mr Tilbrook noted that Mr Bastion was a member of a RAAF Contingent, comprising a squadron of eight Sabre aircraft (No. 79 squadron) and a supporting base squadron, deployed from RAAF Butterworth and located at the Royal Thai Air Force airbase at Ubon in eastern Thailand. The Ubon airbase was strategically situated 30 miles from the Laotian boarder and 50 miles from the Cambodian boarder. The RAAF Contingent was continually maintained at Ubon from 31 May 1962 until 31 August 1968.

60. Mr Tilbrook reported that the task of the RAAF Contingent was to cooperate with the Royal Thai Armed Forces and other forces deployed by SEATO partners, such as the United States Air Force and was aimed at maintaining the territorial integrity of Thailand. The RAAF Air Defence Guards provided security for the RAAF facilities at Ubon and were involved in limited patrolling confined to the immediate area outside the airbase. Operational flying training consisted of air defence exercises in conjunction with the Royal Thai Air Force and the United States Air Force, missile and gun tactics, controlled strikes, navigation exercises, close air support and reconnaissance exercises.

61. There were Rules of Engagement for the RAAF in Thailand and the Contingent was directed not to use force except in self-defence or in the air defence of Thailand if its territory became subject to air attack. The Rules of Engagement were recorded by Mr Tilbrook (R3, p3) as:

"a. No aircraft will be directed to investigate any unidentified contacts unless specifically requested by the Royal Thai Government.

b. No RAAF aircraft will attack unless fired upon."

62. In terms of the threat assessment for the Ubon airbase, Mr Tilbrook noted from a Minute dated 24 March 1965, the Chief of the Air Staff advised the Chairman of the Defence Committee in Canberra that although Ubon was within range of aircraft based in North Vietnam, the probability of enemy attack would be slight and would lead to quick elimination of the bases in North Vietnam by US Air Forces. Sabotage attacks against Ubon by long-range enemy patrols or by clandestine parties would be much more likely, the Chief of Air Staff advised. Mr Tilbrook emphasised that the Rules of Engagement for Ubon made it clear that force was only to be used by the RAAF aircraft in self-defence. With the benefit of hindsight, Mr Tilbrook noted that it was known that during the period of occupation of Ubon by the RAAF no enemy forces attacked the airbase and none of the 79 squadron Sabres were engaged in any hostile or warlike operation during its deployment in Thailand.

63. Mr Tilbrook noted that the conditions in Ubon were basic utilising tented accommodation, marquees for the operations room and messes. The runway and fuel facilities at Ubon were of a good standard with flight operations assisted by a radar unit known as "Lion". The work routine at the base comprised of a five day week with stand down periods on weekends plus the observance of public holidays participation in national holidays in the country and recognition of religious holidays or events. There were social occasions of barbeques, concert parties, visiting allied forces, clubs or making frequent visits to popular local Thai bars or entertainment venues. There was sport played in Ubon including softball, mini-golf, tennis and soccer. There were many visits by dignitaries, politicians and senior military officers both of Australian and other allied forces.

64. Mr Tilbrook opined that "boredom, tedium and isolation" were the biggest issues facing the RAAF and allied forces in Ubon.

65. Mr Tilbrook noted the ongoing efforts to obtain Veterans' Entitlements Act benefits for the RAAF Contingent in Ubon and noted extracts by Dr A Stephens in Chapter 14 of his book "Going Solo" in which the hazards faced by the personnel were summed up. Furthermore Mr Tilbrook referred to a submission in May 1967 seeking repatriation benefits stating that RAAF personnel at Ubon were living in an atmosphere of tension and a continued state of semi-alert with RAAF aircraft on continual "dawn to dusk" runway alert against air attack.

66. There was a record of a "RED ALERT" at the Ubon air base on 24 July 1965 when the entire base was placed on a full alert after an unidentified aircraft was sighted on radar. The red alert was reduced to amber alert most likely after no more than forty-eight hours. Mr Tilbrook noted that there were many other false "alerts" at the air base reported by the RAAF Contingent Ubon related to radar sightings that were later determined to have been the product of meteorological phenomenon due to rapid movement of pockets of supersaturated air.

67. Referring to Mr Bastion's contention of the incident on 20 June 1962, Mr Tilbrook noted that it is confirmed by the "Unit History Sheets" for the RAAF Contingent Ubon as reported by Wing Commander J W Hubble that:

"20 Jun 62. At three o'clock in the morning the base was alerted when GCI plotted numerous slow flying tracks approximately 12 miles away from the aerodrome. Aircraft were armed and put on two minute alert. At daybreak two aircraft were scrambled and vectored onto three of the plotted 'blips' on the radar. However they could not see anything in the area although the radar blips of out aircraft and the strangers (sic 'blips') merged. The alert was made more realistic by an accidental oil fire in transport section that blazed merrily for sometime during the alarm period. The Squadron remained on alert till about 1400 hrs when we reverted to normal training. A Hercules arrived in the morning with some Base Squadron replacements and ACS personnel, and one of our pilots went home for a weeks leave'." (Exhibit R3, p10)

68. Mr Tilbrook provided another report in relation to the false alarm incident on 20 June 1962 contained in the book "The RAAF in Vietnam", Chapter 1 by Mr Coulthard-Clark. This record apparently arose out of evidence, which Mr Tilbrook said was uncorroborated, provided to Mr Coulthard-Clark by two pilots, Flight Lieutenant D M Johnston and Flying Officer C S Viertel. Mr Coulthard-Clark noted of the 20 June 1962 incident, that the RAAF personnel deployed at Ubon had "not the slightest doubt that we were at war. Heightening this belief were events in mid-June, after the Lion radar at the base detected, on several days in succession, what appeared to be pre-dawn enemy helicopter flights in a nearby area of crucial road junctions" (Exhibit R3, p10). It was noted that when the American Station Commander initiated defensive measures, the RAAF Commander, Wing Commander Hubble did the same. Mr Coulthard-Clark noted that the Australians were issued with point 303 rifles and Bren Guns with live ammunition and frantically dug slit trenches in preparation for defending the squadron area. Mr Coulthard-Clark further reported that Wing Command Hubble decided to attempt to intercept the intruding helicopters in the air by a pre-arranged scramble of several of his fighters. It was noted that fifteen minutes before first light, two Sabres piloted by Flight Lieutenant Johnston and Flying Officer Viertel took off with live 30mm cannon ammunition and Sidewinder missiles. There was nothing to be seen and the two pilots returned to Ubon to make their "puzzling" report. It was subsequently determined that the radar sightings were the product of a meteorological phenomenon involving a rapid movement of pockets of supersaturated air down and along the hill slopes until they reached a valley floor where the roads were usually located, before falling as dew. It was noted in Mr Coulthard-Clark's book that:

"Notwithstanding that the alert on 20 June (1962) had been a false alarm, a high degree tension remained for several weeks afterwards. Insurgent activity on the Cambodian border in this period seemingly emphasised the on-going threat of possible attack." (Exhibit R3, p11)

69. Mr Tilbrook noted that the content of Unit History Sheets for the RAAF Contingent through June, July, November 1962 and to March 1963 did not convey the level of fear of enemy attack and on-going heightened tensions as described by Mr Coulthard-Clark. There was no mention of Bren Guns, rifles, live ammunition or the digging of trenches as reported either in Mr Coulthard-Clark's book or by Mr Bastion.

70. Mr Tilbrook concluded that there were isolated incidents of false alerts arising from mistaken observations made by the radar station at Ubon. There were no reports of any measured or substantiated enemy threats or imminent attack against the Ubon base. The presence of RAAF contingent in Ubon was largely symbolic in meeting the political expectations of the SEATO partners, Mr Tilbrook opined. There was never any enemy attack or sabotage against the Ubon airbase. Reports in the Unit History and proceedings indicate trivial details of a shortage of tent pegs, sporting activities, golf tournaments and visiting dignitaries. Mr Tilbrook opined that had there been a level of alert and tension described by Mr Bastion or Mr Coulthard-Clark, then this would have been recorded in the official Unit History. The reports provided by Mr Coulthard-Clark or in submissions in relation to service in Ubon, particularly that by Dr A Stevens, were drawn on uncorroborated evidence, Mr Tilbrook opined. Certainly, Mr Tilbrook acknowledged that Mr Bastion would have had some weapons training and firing of the Bren Gun as it was a section defence weapon. It was also noted that the Bren Gun is an extremely accurate automatic weapon. Mr Tilbrook further opined that it was unlikely that Mr Bastion would have been employed in an armaments role of arming Sabre fighter aircraft with sidewinder missiles and cannon ammunition as his position was as a "Radio Tech Air". It was noted that Mr Bastion had told the Board that at first light he was told with others to go to the tarmac and get the planes ready to take off and that he was involved in pre-flight checks as a Radio Technician.

71. Mr Tilbrook concluded that any claims made by Mr Bastion or indeed uncorroborated evidence had to be considered in the context of the lack of any enemy threat or attack mentioned in the Unit records at the time.

EVIDENCE OF DR J CHEN, CONSULTANT IN OCCUPATIONAL MEDICINE

72. Dr Chen provided a report dated 1 May 2001 (Exhibit R2).

73. Dr Chen noted Mr Bastion's employment history and most recently from 1990 until 1997, he worked for ASIO as the Computer System Manager, looking after software and hardware. Dr Chen noted Mr Bastion's statement that the job was stressful as he was not given the parameters in terms of his job description. After leaving ASIO, Mr Bastion was out of work by choice for approximately 18 months. From March 1999 until June 2000, Mr Bastion worked on a part-time basis for Comcar as a Driver, driving politicians, judges and other VIP's when Federal Parliament was sitting which was approximately 22 weeks per year. Dr Chen noted that the shifts varied from four to nine hours in duration and he worked on average 30 hours per week during that period. Dr Chen reported that Mr Bastion could not cope any longer in June 2000. He stated that he was experiencing anger towards politicians whom he blamed for sending him to war. He was worried about having an accident and was anxious about other people's lives in his hands. Since resigning from Comcar in June 2000, Mr Bastion has not sought employment stating to Dr Chen that he did not feel that he could handle any more work and also noting that his psychiatrist, Dr Altman, had advised him the best way to deal with his post traumatic stress disorder was to keep his stress levels down.

74. Dr Chen noted Mr Bastion's accepted conditions of chronic solar skin damage; chronic bronchitis and emphysema; tinea; irritable bowel syndrome; haemorrhoids; and, amoebic liver abscess. Dr Chen noted non-accepted conditions of hypertension which was diagnosed in 1982 and was well controlled on "Veracaps". He also suffers from seborrheic dermatitis for which there are no symptoms but he complains of dry skin on his legs, back and the dorsum of his arms for which he uses sorbolene. Dr Chen further noted that Mr Bastion started drinking alcohol after joining the airforce and that he continued to drink heavily when he returned to Australia. He eventually reduced to an intake of six schooners of beer each night. In the 1970s, he cut down his alcohol intake significantly when his second wife threatened to leave him. For the past 25 years or more, Dr Chen reported that Mr Bastion has only drunk alcohol socially and not at home.

75. In relation to the other non-accepted condition of post traumatic stress disorder, Dr Chen noted that Mr Bastion was diagnosed by Dr Altman as suffering from post traumatic stress disorder with major depression diagnosed around July 2000. Mr Bastion reported to Dr Chen that he started experiencing psychological difficulties when he first returned from Ubon in 1963. He considered that he had changed from a normal easy-going fellow to a loner, he drank until he is drunk every night and smoked heavily. Mr Bastion reported to Dr Chen that he had feelings of inadequacy and shame when considering his reaction to the threat of an imminent attack in Ubon. He stated furthermore that he experienced intense fear and once more noted his shame of his reaction. Since receiving treatment from Dr Altman, Mr Bastion reported positive benefits in that he is now sleeping better, is less angry and coping better with life. He did not recall any actual dreams or nightmares but reported awakening three or four times at night probably, he thought, related to war-anxiety. Mr Bastion denied any problems with public transport but noted he does not like driving and will drive in Canberra but not in Sydney.

76. Dr Chen reported that she questioned Mr Bastion about any other health problems and he stated that he suffers from neck and lower back pain. He noted that he has had intermittent neck pain and tightness in the shoulder girdles for over 20 years. In the past three or four years, he has had episodes of referred pain into the right or left arm due to a "pinched nerve" in his neck. On 24 April 2001, he had a sudden episode of pain in the left upper arm and neck discomfort. Dr Chen reported that over the years Mr Bastion has received physiotherapy and occasional psychiatric treatment. Furthermore, Mr Bastion reported that he has lower back pain dating back to early 1990s. He noted that his back pain began insidiously and was unrelated to trauma. Mr Bastion has had a few courses of physiotherapy for his back condition. Associated with the back condition is right leg pain which indicated to Dr Chen that Mr Bastion probably has a disc problem in his back and spondylosis. He has limitation on his lifting and carrying capacity to a maximum of ten kilograms.

77. Considering the assessment, Dr Chen noted that Mr Bastion has a lifestyle rating of two points from Chapter 22.

78. In relation to the impairment ratings for Mr Bastion's accepted conditions the following impairments were provided:

Condition Guide Reference Impairment Rating

Chronic Solar Skin Damage Table 11.1 2 Points

Chronic Bronchitis and Emphysema Chapter 1 17 Points

Tinea Table 11.1 2 Points

Irritable Bowel Syndrome Table 6.1.8 5 Points

Haemorrhoids Table 6.1.9 5 Points

Cataract Left Eye Table 8.1.2 5 Points

Bilateral Sensorineural Hearing Loss Chapter 7 0 Points

Tinnitus Table 7.1.11 2 Points

Amoebic Liver Abscess 0 Points

Combined Impairment Rating 32 Points

79. A combined impairment rating of 32, rounded to 30, with a lifestyle of 2 produces a disability pension at 50 per cent of the General Rate.

80. In relation to Mr Bastion's work capacity, Dr Chen noted that Mr Bastion does have cervical spondylosis and lumbar spondylosis. She opined that the cervical spondylosis is significant with foraminal exit narrowing causing impingement of the cervical nerve root and left arm pain. In relation to the lumbar spondylosis, there is possibly a disc protrusion with referred pain in Mr Bastion's right leg. The cervical and lumbar spondylosis conditions in Dr Chen's opinion affect Mr Bastion's ability to work as it prevents him from engaging in heavy manual handling with a lifting restriction of ten kilograms, prolonged and repetitive trunkal bending and twisting, sustained overhead work and prolonged and repetitive neck bending and extension. His neck condition would prevent him from driving for long periods and undertaking remunerative work as a driver. Furthermore, Dr Chen opined that it would probably allow him to work on a part-time basis as a driver but not full-time. The neck condition would limit Mr Bastion from working for more than 20 hours per week as a driver, but will allow him to work for more than eight hours a week as a driver. The lower back condition would also affect his driving capability but to a lesser extent than the neck. The neck and back condition would not prevent Mr Bastion from continuing with computer maintenance work. He is able to undertake grocery shopping and does the shopping with Mrs Bastion every three weeks. Mr Bastion usually does the vacuuming, ironing and lawn mowing and has no difficulty with this. There is no heavy gardening at his home. Mr Bastion has experience working as a radio technician servicing aircraft and maintaining computer systems and looking after software and hardware. Dr Chen opined that, given Mr Bastion's skills, qualifications and experience, the type of employment he is qualified to undertake, not taking into consideration his disabilities, would be in the field of aircraft maintenance, computer hardware and software maintenance and repair of Court reporting systems such as dictaphone systems.

81. Dr Chen concluded that Mr Bastion's skills, qualifications and experience given his accepted and claimed disabilities would not prevent him from continuing to undertake remunerative work that he was undertaking for 20 hours or more per week. That is, the accepted and claimed disabilities would not prevent him from continuing to work full-time in a type of work he had been doing in the past. Dr Chen opined that Mr Bastion's accepted and claimed disabilities are not the sole or substantial cause of his unfitness for work. From 12 May 1999, Mr Bastion's non-accepted and non-claimed conditions including cervical spondylosis, referred pain, lumbar spondylosis, right leg pain and anxiety disorder limit his capacity for work.

82. Dr Chen noted Mr Bastion resigned from Comcar stating that he could no longer handle working in that particular job. He had noted that his psychiatric condition was to the point where he is afraid of having an accident. Dr Chen noted however that Mr Bastion did not attempt to obtain any work since resigning in June 2000. Dr Chen opined that Mr Bastion's accepted and claimed disabilities would not be obvious to an employer and would not prevent him from obtaining work.

EVIDENCE OF MR P DEFINA, CLINICAL PSYCHOLOGIST

83. Mr Defina provided a report to the Respondent on 28 May 2001 (Exhibit R1).

84. Mr Defina noted Mr Bastion had a demonstrated stable employment history. It also appeared to Mr Defina that Mr Bastion furthermore had a successful employment history since his departure from the RAAF. He had accepted redundancy from ASIO and felt unable to work for 18 months due to stress. Mr Bastion did however specifically deny any interpersonal conflicts, fights or unsatisfactory relations at work and informed Mr Defina to his knowledge, no complaints had ever been made about his work performance or staff relations in any of his employment situations.

85. In relation to his work with Comcar, Mr Bastion reported interpersonal difficulties that impaired his ability to carry out his work. Mr Defina noted that Mr Bastion commenced treatment with Dr Altman in March 2000. Mr Bastion resigned from Comcar in June 2000, reportedly on advice from Dr Altman and has not worked since.

86. Having administered a battery of tests, Mr Defina noted that Mr Bastion believes he has problems relating to others and feels uneasy in social situations. Mr Bastion's motivation for work, as opposed to the material rewards of employment, is low. The data collected by Mr Defina indicated that Mr Bastion feels happy with his current life situation including his standard of living and leisure activities. He has a good level of psychological adjustment in terms of his freedom from anxiety about his health, paranoia, depression or hostility to others. Mr Bastion rates his abilities such as technology and communication skills as above average and he has other above average verbal reasoning and numeracy skills. Personality testing indicated that Mr Bastion was likely to be socially introverted and suspicious of others' motives. Mr Bastion has a very low level of responding to a vocational interest inventory and is reflective, Mr Defina opined, of Mr Bastion's stated desire not to return to work. Mr Bastion feels incapacitated by his symptoms and believes that this relates primarily to his interpersonal difficulties. The reported history however, Mr Defina opined, suggests that such difficulties did not adversely impact upon Mr Bastion's capacity for employment until after March 1999 when he began working for Comcar. Mr Bastion reported that his difficulties did not result in any complaint being made about him.

87. At interview, Mr Bastion demonstrated good social skills and at least adequate interpersonal skills in all of his employment situations. Without regard to his disabilities, Mr Defina opined that Mr Bastion would be suitable for employment as a Computer Services Manager, Computer Systems Auditor, Officer Manager, Customer Services Manager, Business Machine Mechanic, General Clerk, Purchasing Officer or Automobile Driver. Mr Defina noted that he had not received a copy of Dr Shand's report. Notwithstanding this, given Mr Bastion's history, Mr Defina opined that it was difficult to accept that Mr Bastion's accepted and claimed disabilities would have prevented him from undertaking remunerative work during the assessment period. Any disabilities he has, have not prevented him from developing a successful and full employment history, Mr Defina opined. There is no report of a deterioration of his vocational capacity until after his employment with ASIO.

88. Given Mr Bastion's employment history, Mr Defina opined that there is no evidence that Mr Bastion's accepted and claimed disabilities prevented him from undertaking remunerative work for 20 hours or more per week. Mr Bastion claims the onset of symptoms from 1962, yet there was no report of a deterioration in his capacity for employment until 1997 after the employment with ASIO. At interview, this was attributed to the stressful nature of the work at ASIO. In relation to the resignation from Comcar in June 2000, the issues sighted were the requirement of social intercourse with politicians and Mr Bastion's anxieties regarding driving. Mr Defina noted however that Mr Bastion still feels able to drive in the Queanbeyan and Canberra areas. In regard to the social requirements of the position, Mr Bastion had reported anger specifically directed toward politicians. Mr Bastion was noted not to have sought any form of employment since June 2000. He was concerned that he did not precipitate a relapse and considered that the medication he was taking was not conducive to long term concentration.

89. Mr Defina opined that Mr Bastion presented as a well-spoken, intelligent individual who displays good social skills. There was no overt pain or distress behaviour and Mr Defina did not consider that Mr Bastion's accepted conditions would be obvious to an employer. Furthermore, Mr Defina opined that Mr Bastion's age did not prevent him from obtaining work which he was able to do in March 1999 when nearly 61 years of age. It is possible that his age would diminish his prospects for employment in more demanding work such as that which he had previously held.

EVIDENCE OF PRICEWATERHOUSE COOPERS HR SERVICES EMPLOYMENT RECORDS

90. By letter of 26 June 2001, Ms D Navarro, Pricewaterhouse Coopers HR Services, advised the Department of Veterans' Affairs that Mr Bastion was employed as a Comcar Driver and there were no records of any behavioural or disciplinary problems. Mr Bastion took no leave during his employment with Comcar and he retired from Comcar (Age Retirement). Mr Bastion ceased work on 22 June 2000 (Exhibit R7).

91. By letter of 11 July 2001, Pricewaterhouse Coopers advised the Department of Veterans' Affairs that Mr Bastion was employed as an APS Level 1 Casual Driver employed to drive Commonwealth Vehicles as required. There was no record of Mr Bastion being sick at work. It was confirmed that Mr Bastion left employment with Comcar on 22 June 2000 due to Age Retirement. Mr Bastion was not entitled to sick leave as a casual employee. He did not receive any redundancy package from Comcar and there were no offers made to relocate Mr Bastion to another area within Comcar (Exhibit R6).

SUBMISSIONS

92. Mr Dawson submitted that the appropriate diagnosis of Mr Bastion's psychiatric condition is post traumatic stress disorder with major depression. The submission was made on the basis that it is a diagnosis arrived at by both Dr Altman, the treating Psychiatrist and Dr Dinnen, who had provided evidence to the Tribunal. Mr Dawson contended that the Tribunal should accept the diagnosis of post traumatic stress disorder not just because two doctors had diagnosed it, but because it has to be seen on the balance of probabilities as the most reliable diagnosis before the Tribunal.

93. In relation to Dr Shand's opinion, Mr Dawson submitted that no less than five separate diagnoses were made. In this regard, referring to Exhibit R5, page 7, Dr Shand noted a diagnosis of "long-standing Personality Disorder of the type "Not Otherwise Specified"". Later at page 9 of his report, noting Dr Chen's history, Dr Shand provided another diagnosis of "Personality Disorder" of the "Obsessive- Compulsive Type" and not of the type "Not Otherwise Specified" (Exhibit R5, p9). A third diagnosis provided by Dr Shand later on page 9 of his report is of "Personality Disorder with Alcohol Abuse". In the very next paragraph, Dr Shand noted once again that the diagnosis is "Personality Disorder of Obsessive-Compulsive Type".

94. In paragraph 12 of his report, Dr Shand reported that Mr Bastion suffers from what used to be known as a "neurotic reaction" to an incident in association with a "longstanding Personality Disorder of Obsessive-Compulsive Type" (Exhibit R5, p10). A further diagnosis was provided by Dr Shand at page 10 of his report of "Chronic Adjustment Disorder with Depressed and Anxious Mood" with a very strong contribution from Mr Bastion's "Personality Disorder". Considering these diagnoses, Mr Dawson submitted that the Tribunal would have to find, on the balance of probabilities, that Dr Shand was having more than what Mr Marsh had conceded in his opening address as a "bet both ways". It would be unreliable if the Tribunal was to reject the diagnosis of post traumatic stress disorder and then somehow assess Dr Shand's various diagnoses as to which is the most appropriate, Mr Dawson opined, particularly as Mr Bastion's circumstances met the diagnostic criteria for post traumatic stress disorder as set out in DSM IV.

95. If the Tribunal were to find that it was reasonably satisfied that the diagnosis of Mr Bastion's psychiatric condition is post traumatic stress disorder, then the Tribunal would have to follow the necessary steps of deciding whether or not a reasonable hypothesis is raised. The hypothesis put forward is that Mr Bastion suffered a severe stressor when he experienced the circumstances of being in Ubon in 1962 when an alert of the threat of attack occurred on 20 June. Mr Dawson submitted that the hypothesis raised clearly fits within the template or factor in that Mr Bastion was in a trench on alert. The alert of possible threat of attack in the official account lasted for 11 hours as set out in paragraph 37 of Mr Tilbrook's report. Furthermore, Mr Coulthard-Clark's account which is the official history of "The RAAF in Vietnam", describes the alert in much the same way as the veteran had put forward. Mr Dawson submitted that on all of the evidence, the hypothesis fits Factor 5(a) of the relevant Statement of Principles concerning Post Traumatic Stress Disorder. Mr Dawson submitted that there is nothing in any of the cases attached to the Respondent's Facts and Contentions that would displace the raised hypothesis. Mr Bastion's matter is not a case where the Applicant is saying that he thought they were under attack and as Dr Dinnen put it, Mr Bastion did not fantasise about a possible attack but was in fact told that there was a threat of attack. As the official history of "The RAAF in Vietnam" stated, the pilots deployed on 20 June 1962 had not the slightest doubt that they were under attack. Mr Dawson submitted that it had to be borne in mind that all these circumstances occurred during a period of operational service.

96. Mr Dawson further noted that the heightening of the belief that the event on 20 June 1962 was real, occurred after the Lion radar at the base detected, over several days in succession, what appeared to be pre-dawn enemy helicopter flights. There was certainly a belief that there was an enemy in this conflict. Mr Dawson referred to the history which recorded that in a nearby area of crucial road junctions, ground patrols had failed to find any evidence of enemy intrusions. Continuing radar contacts raised fears however that guerillas from across the Mekong River were being inserted at night to take action against the Ubon base. Mr Dawson submitted that there was certainly no doubt in the official history as to how people saw the event of 20 June 1962 at that time.

97. Mr Dawson stated that there is not much better proof available in matters that come before the Tribunal than the proof which exists in Mr Bastion's case. Something did happen, in that there was an alert of the threat of attack and there was a belief, as confirmed by Mr Bastion's actions and the reported history, that the base at Ubon thought it was under attack. The men were told of this and they were told to take appropriate precautionary action that involved digging a trench and obtaining armaments. Mr Dawson submitted that, contrary to the Respondent's submissions, the incident on 20 June 1962 was not trivial, aircraft were armed and put on a two-minute alert at 3 am in the morning. The alert lasted for 11 hours. If the Tribunal were not to accept this, then it would have to find that Mr Coulthard-Clark's account in the official history of "The RAAF in Vietnam" was made up of lies and that Mr Bastion himself was lying. It is not reasonable, Mr Dawson submitted, to conclude, as the Respondent had, that because there were reports in the Unit History of a film projector blowing its light bulb or there being a shortage of tent poles, that what Mr Coulthard-Clark had reported and Mr Bastion had consistently told of the circumstances on 20 June 1962, were not true. Mr Dawson submitted that it was not conceivable that the official history of "The RAAF in Vietnam" and Mr Bastion's evidence were full of lies. The situation was that Mr Bastion was digging a trench and was preparing with others to defend the squadron area. In so submitting, Mr Dawson noted that the SEATO rules say that there was only to be attack by the RAAF if fired upon. At page 11 of the official history of "The RAAF in Vietnam", it is noted that aircraft were loaded with 30mm cannon ammunition and Sidewinder missiles and were ordered by radio to penetrate below the cover. Notwithstanding that the alert had been a false alarm, Mr Dawson submitted that a high degree of tension remained for several weeks afterwards as reported in that official history. It was noted that insurgent activity on the Cambodian border in this period seemingly emphasised the ongoing threat of possible attack. Mr Dawson contended that it was unfair not to accept that the conflict in Vietnam was a confused piece of history particularly from the Australian point of view. Mr Dawson noted that it was linguistic game and unfair to continue the linguistic game against veterans given that their service in this area at that time is now recognised as operational service. Mr Dawson submitted that Mr Tilbrook failed in his research report to address the review of service entitlement anomalies in respect of South-East Asian service.

98. This case is not, Mr Dawson submitted, a scare-charge case nor a monkey jumping on the back case. In any event, Mr Dawson noted that in Repatriation Commission v Binding [1999] FCA 974, scare charges were found to be the stressor in relation to a post traumatic stress disorder. The facts in Mr Bastion's case were distinguishable from Re Repatriation Commission and Freeman (2000) 61 ALD 259. The Tribunal was further referred to Re O'Leary v Repatriation Commission [2000] AATA 836 in which that Tribunal found that being told stories by other mariners could in fact themselves be the stressful event. That decision was not appealed.

99. In relation to the Respondent's submission that no one was injured or nothing happened to those at Ubon on 20 June 1962, Mr Dawson submitted that the test for post traumatic stress disorder does not require injury. It requires threat of injury or death. This means that there has to be a perception of threat of injury or death, based on some degree of reality, as Dr Dinnen properly explained. The threat cannot be imaginary or fanciful. Dr Dawson put to the Tribunal that having been issued with a weapon, being in a trench for 11 hours when one thought that one's base was under attack and in circumstances where aircraft remained on two minute alert was not a situation which could be anything else other than a traumatic event. Mr Dawson submitted that it is an insult to ill veterans to suggest that, because they were not in the front line, they should not be entitled to a pension. If there was no threat of serious injury, Mr Dawson wondered why the servicemen were put in trenches. The fact that no shots were fired or the bombs missed for example, does not mean that there was no threat and it is to misconstrue the diagnostic criteria to say that there has to be actual engagement. This would change the whole concept of post traumatic stress disorder in a way that was not meant by DSM 1V. Mr Dawson concluded that this matter is not one of the more difficult matters in terms of clarifying whether or not the definition of stressor can be met. He submitted that it is clear and straight forward and the fact that no shots were fired and the fact that no one was hurt or killed, does not put Mr Bastion's claim outside the current test or beyond the appropriate Statement of Principles' definitions and diagnostic criteria.

100. Mr Dawson referred the Tribunal to the Federal Court decision in O'Neil v Repatriation Commission (2001) 34 AAR 290 which dealt with a veteran suffering from generalised anxiety disorder. North J noted at paragraph 12 that:

"It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs."

101. While Mr Dawson submitted that that decision related to generalised anxiety disorder, North J's observations deal with the overemphasis by the Respondent in general in these matters of this objective/subjective test to be applied in dealing with the definitional criteria. There is no doubt, Mr Dawson further submitted, that in relation to the definition of a severe stressor, in Mr Bastion's case, something did happen, he was told the base was under attack or under threat of attack and he was told to dig a trench. While the threat had to be beyond the realm of fantasy, Mr Dawson contended that it does not actually have to involve man to man, arm to arm combat in order to meet the definition. Thus, Mr Dawson submitted that a reasonable hypothesis was raised as Mr Bastion's circumstances met Factor 5(a) of the relevant Statements of Principles

102. Referring to Repatriation Commission v Deledio (1998) 49 ALD 193, and the four step process detailed in that decision, Mr Dawson submitted that Step 4 requires that the Tribunal be convinced beyond reasonable doubt that there is no fact which disproves the causal relationship between Mr Bastion's psychiatric disorder and service. Mr Dawson contended that the Respondent seems to be arguing that Mr Bastion's psychiatric disorder arose solely from Mr Bastion's marital problems. From Dr Dinnen's evidence, the Tribunal should note that veterans with post traumatic stress disorder often cope quite well until faced with other life crises and then the symptoms arise. Mr Dawson submitted that there is not enough evidence before the Tribunal to misplace that proposal. Mr Dawson submitted that Mr Bastion has post traumatic stress disorder and his personal life crises, such as his wife's infidelity, is what either partially or wholly brought to the fore the symptoms of post traumatic stress disorder.

103. Mr Dawson concluded that Mr Bastion was entitled to Disability Pension for post traumatic stress disorder. The appropriate rating is 28 points from Chapter 4 of the Guide. The overall combined impairment ratings for all of Mr Bastion's war-caused conditions produces a Disability Pension at 90 per cent of the General Rate with effect from 12 May 1999 as assessed by Dr Chen.

104. As Mr Bastion is in receipt of Disability Pension at 70 per cent of the General Rate or greater, Mr Dawson submitted that Mr Bastion was eligible for consideration of pension at the Special Rate. Mr Dawson referred the Tribunal to Banovich v Repatriation Commission (1986) 69 ALR 395, which in Mr Dawson's submission determined that the reason a veteran left employment is not the issue, but rather, it is whether the veteran can continue to work in the assessment period. That is a medical test, Mr Dawson contended. Mr Dawson submitted that Mr Bastion does not have to be in the position where he does not have any other medical conditions. The veteran simply has to be in a position where his accepted conditions alone stop him from working. Mr Bastion has both cervical and lumbar problems but Mr Dawson submitted that the lumbar problem is minor. In relation to the cervical problem, it is also relatively minor and whilst at C5/6 there is a disc height loss, there is no suggestion, Mr Dawson submitted, of anything more than osteoarthrosis in some parts of the joints. Mr Bastion gave evidence about pain in his arms and he did not attempt to hide that. Mr Bastion said that he was able to live with this discomfort. He was able to drive and it did not interfere with his work. There is therefore no real evidence, Mr Dawson contended, that the spinal conditions have been factors in stopping Mr Bastion from working in the past. If these conditions were a problem, then one would have expected that Mr Bastion would have had to have time off work because of his spinal problems and there is no evidence of that. Both Dr Dinnen and Dr Altman have opined that it is Mr Bastion's post traumatic stress disorder alone which prevents him from working. Accordingly, Mr Dawson submitted that Mr Bastion should be granted pension at the Special Rate with the date of effect 23 June 2000. Thus, Mr Bastion should have Disability Pension paid at 90 per cent of the General Rate from 12 May 1999 and then from 23 June 2000, pension should be paid at the Special Rate.

105. Mr Marsh, for the Respondent, submitted that the Tribunal is faced with a diagnostic dilemma in terms of what is the correct diagnosis of Mr Bastion's psychiatric illness. The Tribunal must be reasonably satisfied as to the diagnosis as was discussed by the Full Court in Repatriation Commission v Budworth (2001) 66 ALD 285. There is no doubt that following the Full Court decision in that matter, the Tribunal must first be reasonably satisfied that Mr Bastion suffers from the incapacity claimed, namely post traumatic stress disorder. In approaching the diagnosis issue, the Tribunal is bound by the Statement of Principles concerning Post Traumatic Stress Disorder, that being Instrument Number 3 of 1999, as amended by 54 of 1999. The diagnostic criteria must be satisfied and the first criterion requires that Mr Bastion be exposed to a traumatic event. The Federal Court decision in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 noted that all of the Statement of Principles' criteria must be satisfied and this included diagnostic criteria. Being exposed to a traumatic event means that 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 and the person's response involves intense fear, helplessness or horror. In terms of Factor 5(a) of the Statement of Principles, the definition of experiencing a severe stressor is similar to the definition of being exposed to a traumatic event [paragraph 2(b)(A)(i)], except that there is specific reference to the context of service in the Defence Forces. The definition then goes on to refer to stressors on service including the threat of serious injury or death, engagement with the enemy or witnessing casualties. Those examples, Mr Marsh submitted, are important in indicating the magnitude of the event or stressor in the context of service. It is therefore important, Mr Marsh contended, to consider where Mr Bastion was at the time, what he was doing and what was the role of the RAAF.

106. From the general historical background, Mr Marsh submitted that Mr Tilbrook's report is extremely important. Mr Marsh noted that the tasks allotted to the RAAF in Thailand were part of a security exercise under the SEATO arrangement and the conduct of operational flying training with its SEATO allies would be governed by the Rules of Engagement. Mr Marsh submitted that the role of the RAAF in Ubon occurred in the context of being involved in a training exercise only. Mr Bastion himself confirmed that he was told the RAAF was undertaking an exercise, which he referred to as "war games". It must be borne in mind, Mr Marsh further submitted, that in 1962 there was no war. Australia was not at war and Thailand was not at war. What was being dealt with in Mr Bastion's circumstances was a treaty arrangement in an area where there was civil unrest in the South-East Asia area generally. There were communist insurgents in the neighbouring countries of Laos, Cambodia and Vietnam. In relation to Vietnam, Mr Marsh noted that Vietnam does not share a common border with Thailand. Thus, it is important to consider that it is against this background of essentially peacetime training, Mr Marsh submitted, that the alleged stressor is claimed to have occurred.

107. Mr Marsh noted Dr Dinnen's report and evidence which seem to indicate that he believed that Mr Bastion was in some sort of front-line operational air strip. There was no front-line operational airstrip, Mr Marsh stated, it was an airstrip involved in training exercises.

108. Referring to the official Unit History as recorded by Mr Tilbrook in Exhibit R3, it can be seen from Wing Commander Hubble's report that there was no suggestion of the degree of terror and alarm or threat of attack that Mr Bastion urges upon the Tribunal, Mr Marsh contended. There was no suggestion in that history of people being ordered to dig trenches or of being given weapons and being told to expect an imminent attack. All the reference reveals is it that there was a blip on the radar which needed to be investigated and investigations the following morning revealed nothing. Mr Marsh submitted that the conclusion ultimately was that the blip on the radar was caused by a meteorological disturbance, not an enemy attack. Furthermore, Mr Marsh submitted that the records should be looked at in the context of the comprehensive detailed reporting of what can only be described as trivial events such as there being a tent pole shortage, the problems with the cinemascope lens and references to a new laundry being set up. It is from the official record of the Unit in Ubon that the Tribunal should accept as reflecting the true situation, Mr Marsh submitted. After the incident on 20 June 1962, the history recalls the visit on 23 June of Sir Garfield Barwick, the then Australian Minister for Defence and on June 24 there is a reference to a mini golf championship. Mr Marsh submitted that these trivial incidents set the tone and flavour for the general scenario existing at Ubon. It does not paint a picture of a front line operational area or of the prospect of imminent enemy attack or threats ready to be realised at any moment. It is simply inconceivable, Mr Marsh submitted, that the official history would be recording such trivial events as a broken light bulb or a shortage of tent poles and yet would not record an alert involving the issue of weapons, ammunition and an order to dig trenches.

109. Mr Marsh submitted that the incident on 20 June 1962 occurred as was recorded in the official Unit record. Mr Marsh submitted that there was no issue of weapons and there was no digging of trenches, there was simply an alert that eventuated into nothing. In any event, Mr Marsh contended that whether or not weapons were issued or trenches dug is not crucial to the Respondent's case, because with or without those circumstances, Mr Marsh submitted that the event itself simply does not meet the definition of a stressor. While Mr Marsh acknowledged the official history of "The RAAF in Vietnam" by Mr Coulthard-Clark, the Respondent's position is that this is an uncorroborated account and simply part of the myth and folk law that has evolved around this aspect of our history, where service could be described as marginal and in a situation where not very much happened. Mr Marsh submitted that Mr Coulthard-Clark's account is hyperbole and based on uncorroborated accounts by two pilots who, in his submission, simply embellished and also used hyperbole in describing the event. Furthermore Mr Coulthard-Clark's history is of Vietnam and not of Ubon or of the RAAF's role in Thailand in 1962.

110. In terms of an alternate diagnosis for Mr Bastion's psychiatric condition, this presents a problem as Dr Shand offers a number of alternative diagnoses. Mr Marsh submitted however that the alternatives are not as varied as Mr Dawson contended. The relevant Statement of Principles concerning Personality Disorder under the various ICD Codes embraces both personality disorders of the obsessive compulsive type and of the type not otherwise specified.

111. Mr Marsh submitted that taking Dr Shand's evidence as a whole, his opinion is that the appropriate diagnosis of Mr Bastion's psychiatric condition is personality disorder. There is a possible alternate diagnosis of chronic adjustment disorder, but in relation to the Statement of Principles for that condition, the Statement of Principles is not satisfied on Mr Bastion's circumstances. Mr Marsh further submitted that Mr Bastion's circumstances do not satisfy the Statement of Principles concerning Personality Disorder.

112. In relation to Mr Dawson's reliance on the Federal Court decision in O'Neil v Repatriation Commission (supra), that decision concerned generalised anxiety disorder, not post traumatic stress disorder. Mr Marsh submitted that that decision is unhelpful in terms of assessing the meaning of the severe stressor for the purposes of post traumatic stress disorder.

113. In Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119, that decision involved a scenario of a veteran in Vung Tau Harbour claiming various stressful events related to scare charges. Mr Marsh submitted that this is an extremely helpful decision because it illustrates the problem when the diagnosis of post traumatic stress disorder is not matched by the definition of a stressful event in the Statement of Principles or the definition of a severe stressor. That case involved considerable evidence given by Professor McFarlane who is Professor of Psychiatry at the University of Adelaide and the Department of Psychiatry at the Queen Elizabeth Hospital in Adelaide. Professor McFarlane was also a member of the DSM-1V sub-committee involved in developing the diagnostic criteria for post traumatic stress disorder and he was also part of a workshop within the above conference where the Statements of Principles were discussed. Mr Marsh referred the Tribunal to paragraphs 58 and 61 in Re Cranage and Repatriation Commission (supra). At paragraph 61, that Tribunal noted that Professor McFarlane stated in relation to the definition of stressor:

"...the essence of this definition was to "remove the idea of the stressor solely from the issue of perception". He reported that the "aim of the objectivity clause was not to place an obligation on the individual veteran to define the adverse nature of the environment or to provide validated evidence of the observable nature of the stressor to which they had been exposed." He relied on the research findings of Marshall (refer later) who found that it was "very difficult to objectively define the nature of combat experience without a very prolonged and detailed interview with all of the combatants in a particular situation". He concluded "according to my understanding it was neither the intention of this conference nor practically possible from the objective records to apply such a definition of objectivity." He concluded that "the issue at stake is that of the threshold of stressfulness covered by the (a) criterion definition". He said "being on a ship for example in a combat zone where an explosion is heard does raise a reasonably hypothesis (sic) that the individual would have believed that they were under enemy fire.

..."

114. Professor McFarlane is later reported in that decision to have noted that the objectivity principle outlined in the Statement of Principles was an attempt to deal with issues that primarily arose out of the exaggeration of threat in an individual's mind when in fact there was no realistic basis for that perception. Professor McFarlane further reported that the idea of threat may be entirely due to an individual's perception and not have a substantial basis in fact. Professor McFarlane opined in his evidence that the intention of the Statement of Principles was not to exclude servicemen who may have been on patrol for a year in the jungle in Vietnam but had never seen the Viet Kong or never fired a shot. He noted that clearly such an individual, although there was no objective engagement with the enemy, did realistically perceive a threat to their physical integrity and that of their comrades. This was particularly the case when on patrol in regions where the enemy was known to be active. Accordingly, relying on Re Cranage and Repatriation Commission (supra), Mr Marsh submitted that the diagnostic definition is an objective test in determining what is a stressful event. It cannot arise out of the subjective assessment of the veteran. The subjective element arises out of the veteran's reaction to the objectively traumatic event. These issues were discussed at paragraph 89 in Re Cranage and Repatriation Commission (supra) where that Tribunal noted that the Applicant must establish that he or she experienced a stressor prior to the clinical onset of post traumatic stress disorder. Experiencing a stressor is a precondition. The Tribunal accepted a submission by the Respondent that the definition of stressor involved an objective interpretation in part (a) and a subjective interpretation in part (b) of the diagnostic criteria contained within the Statement of Principles.

115. Mr Marsh referred the Tribunal to Re Mulvany and Repatriation Commission (2000) 59 ALD 602 in which Mr Mulvany claimed post traumatic stress disorder as a result of a monkey jumping on him in a tent in Vietnam. Mr Mulvany perceived at that time that he was under attack from the Viet Kong and claimed to have demonstrated an appropriate subjective response to that event. Mr Marsh submitted that that case provides an illustration of the danger of looking at the stressor for post traumatic stress disorder in subjective rather than objective terms. Professor McFarlane noted that Re Mulvany and Repatriation Commission (supra) is the type of case which was exposed as being one which should be excluded in terms of accepting that type of stressor for the purposes of diagnosing post traumatic stress disorder and its service causation. An almost identical approach had been taken in Re Repatriation Commission and Freeman (supra) and both that case and Re Cranage and Repatriation Commission (supra) involved Vietnam service with the decision in Re Repatriation Commission and Freeman (supra) having some parallels with Mr Bastion's circumstances. In Re Repatriation Commission and Freeman (supra), the alleged stressor was a false alarm on a radar alert involving an identified aircraft. In all of the decisions, Re Cranage and Repatriation Commission, Re Mulvany and Repatriation Commission and Re Repatriation Commission and Freeman, the veterans were actually in a war zone where at least there was the prospect of combat and the crucial finding in each of those cases was that nothing did occur.

116. Mr Marsh asserted that to suggest in Mr Bastion's case that the incident or "non-event" that transpired should be elevated to the status of a severe stressor within the express meaning of the Statement of Principles is to trivialise the definition. Mr Marsh contended that it would be asking the Tribunal, in the Respondent's view, to devalue the currency of service where people over the past one hundred years have genuinely put their lives on the line in the service of their country. To find that such a trivial event as experienced by Mr Bastion, constitutes a severe stressor in the context of military service, "is offensive to the memory of those who did, as I say, genuinely face the enemy or put their lives at risk" (Transcript, p83). Mr Bastion would have been aware as a serviceman who joined the armed forces that there is a prospect of overseas service and that decisions are made about such matters by the Parliament.

117. Mr Marsh submitted that the Tribunal should also note Dr Shand's opinion that although Dr Altman accepted the history of the incident in Ubon as a sufficiently major stressor, Dr Shand did not agree because he considered that the mere perception of danger which is not realised, does not satisfy this Statement of Principles for a severe stressor under Factor 5(a). Dr Dinnen's view that the perception of danger not realised is sufficient to satisfy the definition is wrong in law, Mr Marsh submitted, particularly in light of the Federal Court view of a stressor as determined in Repatriation Commission v Budworth (supra).

118. In relation to Dr Dinnen's analogy of the World Trade Centre crisis, this involved a great loss of life and Mr Marsh submitted that no one could seriously suggest that someone who escaped that building in those circumstances did not experience a stressor by the definitional standards. In Mr Bastion's case, no one was injured, no one was hurt and nothing happened. There was a simple alert. Mr Marsh submitted that a more accurate analogy would be to consider the evacuation of a building in Sydney in the event of a bomb scare. Such an event would not satisfy the definition of a severe stressor as defined in the Statement of Principles because it is based on an event where nothing happened in terms of actual death or injury.

119. Accordingly in relation to the entitlement issue, Mr Marsh submitted that Mr Bastion did not satisfy the diagnostic criteria for post traumatic stress disorder and furthermore, he could not satisfy Factor 5(a) within the relevant Statements of Principles. In relation to alternate diagnoses suggested by Dr Shand, Mr Bastion's circumstances also did not satisfy the relevant Statements of Principles concerning Personality Disorder or Adjustment Disorder.

120. Mr Marsh considered next the assessment issue. If the Tribunal found that Mr Bastion did suffer from post traumatic stress disorder, then Mr Marsh submitted that the appropriate combined impairment rating for that condition with the already accepted war-caused conditions would be 90 per cent of the General Rate, based on Dr Chen's report. The total impairment rating would be 52 points rounded down to 50 with a lifestyle rating of 4 taken from the shaded area of Scale 23.1 producing a Disability Pension at 90 per cent of the General Rate.

121. In relation to the issue of whether or not Mr Bastion was qualified for pension at the Special Rate, Mr Marsh submitted that Mr Bastion satisfied subsection 24(1)(a) of the Act in that he had General Rate Pension of at least 70 per cent of the General Rate. In relation to subsection 24(1)(b) of the Act, Mr Marsh submitted that this criteria is not satisfied. In this regard, Mr Marsh contended that Mr Bastion retains residual work capacity based on Dr Chen's opinion particularly at paragraph 8 of page 10 of her report (Exhibit R2). Dr Chen clearly believes that Mr Bastion has a work capacity. Should the Tribunal be inclined to find that Mr Bastion had no work capacity, then Mr Marsh relied upon Dr Chen's further opinion that there are factors other than service-related accepted conditions alone which prevented Mr Bastion from continuing to undertake remunerative work. Mr Marsh referred the Tribunal to Dr Chen's opinion that Mr Bastion has significant cervical spondylosis and foraminal exit narrowing causing impingement of the cervical nerve root and left arm pain. Dr Chen noted that Mr Bastion's neck condition would limit him from working for more than 20 hours per week as a driver, but would allow him to work for more than eight hours per week. Dr Chen concluded that Mr Bastion's accepted and claimed disabilities did not prevent him from continuing work within the assessment period.

122. Dr Chen is the appropriate expert in the area of Occupational Medicine, Mr Marsh submitted. Her views as to Mr Bastion's capacity to work should be preferred to those of a psychiatrist and are supported by the Clinical Psychologist, Mr P Defina. Mr Defina concluded that Mr Bastion has work capacity and had undertaken a job-match analysis. Mr Defina also noted that there was no suggestion that Mr Bastion's retirement was motivated by anything else other than the availability of the redundancy package.

123. Referring to the Pricewaterhouse Coopers HR Services Employment Records (Exhibit R6), the most recent cessation of work from Comcar was referred to as an age retirement, Mr Marsh noted. In any event, Mr Marsh submitted that the reason Mr Bastion ceased work would become irrelevant if the Tribunal concluded that Mr Bastion still has work capacity as opined by Mr Defina and Dr Chen.

124. Mr Marsh noted that there is no suggestion that Mr Bastion has either sought or intended to work since he ceased work with Comcar in June 2000. The ameliorating provisions therefore do not apply as dealt with in subsection 24(2)(b) of the Act. Mr Marsh concluded that Mr Bastion does not satisfy the Special Rate criteria. He still has work capacity and fails subsection 24(1)(c) of the Act in that he is not prevented from continuing work by reason of his accepted conditions alone. Mr Bastion is a man who is in retirement with no intention of working and there is no suggestion in any of the material before the Tribunal that the retirement was based on anything else other than age, Mr Marsh concluded.

FINDINGS

125. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.

126. This decision involves consideration of issues of both entitlement to Disability Pension and the assessment of the correct rate of pension.

127. In relation to the entitlement issue, the Tribunal must determine if Mr Bastion has a war-caused psychiatric condition and what is the correct diagnosis of that condition. The proposal put to the Tribunal is that Mr Bastion suffers from post traumatic stress disorder and the threshold issue is whether or not this is the correct diagnosis. The Tribunal must determine to its reasonable satisfaction, as discussed in Repatriation Commission v Budworth (supra) what is the correct diagnosis of his claimed condition. This involves the Tribunal examining the diagnostic criteria arising out of DSM 1V and as specified in the relevant Statement of Principles, Instrument Numbers 3 of 1999 as amended by 54 of 1999 concerning Post Traumatic Stress Disorder.

128. The Tribunal notes that there is a variety of opinion as to the correct diagnosis of Mr Bastion's psychiatric condition varying from Dr Cullen's opinion that there is no psychiatric diagnosis to Dr Altman and Dr Dinnen's primary diagnosis of post traumatic stress disorder with major depression and finally Dr Shand's diagnoses of: personality disorder, either of a type not specified or of the obsessive-compulsive type; and, chronic adjustment disorder with depressed and anxious mood with a strong contribution from Mr Bastion's personality disorder.

129. Dealing with the possible diagnosis of post traumatic stress disorder, the Board had varied the diagnosis of psychiatric condition from "nervous condition" to "post traumatic stress disorder with major depression". The diagnostic criteria are contained within paragraph 2 of the relevant Statements of Principles. In order to qualify, Mr Bastion must meet the specified criteria.

130. Paragraph 2(b)(A) requires that Mr Bastion be 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;..."

131. These requirements have been referred to in various Federal Court and Tribunal decisions as the objective [2(b)(A)(i)] and subjective tests [2(b)(A)(ii)].

132. Mr Bastion claims that in the early hours of 20 June 1962, he was woken, directed to the armoury tent, told of the threat of an imminent air attack and issued with a Bren gun. This state of alert was maintained for eleven hours with aircraft put on two-minute alerts. There is clear recording of this event in the official Unit History Sheets of the RAAF Contingent in Ubon for the month of June 1962. It was noted that the Unit was placed on alert following the radar findings of numerous low flying tracks approximately twelve miles from the Ubon aerodrome. It was further noted that aircraft were armed and put on a two minute alert. At daybreak, two aircraft were scrambled and vectored for action as a result of "three of the plotted blips on the radar" (Exhibit R3, p16) It was subsequently determined that the radar blips related to a meteorological phenomenon.

133. While the Unit History mentioned no record of the issue of armaments or the digging of trenches, there is a record of such occurrences contained in Mr Coulthard-Clark's account of the RAAF experiences in Ubon as detailed in the official history of "The RAAF in Vietnam".

134. While Mr Marsh acknowledged that an alert did occur on 20 June 1962, he did not accept that the level of threat or heightened tensions as described by Mr Bastion in fact occurred. Mr Marsh also did not accept that armaments were issued or that Mr Bastion was directed to dig a trench. Mr Marsh contended that Mr Bastion was on an exercise in peace time in Ubon. There was no exchange of fire and no threat to Mr Bastion and no injury. The account of events which correlates to Mr Bastion's evidence was based, Mr Marsh had contended, on uncorroborated reports obtained by Mr Coulthard-Clark from two fighter pilots, Flight Lieutenant D M Johnston and Flying Officer C S Viertel. The Tribunal was also referred to the Rules of Engagement which stated that force was only to be used by the RAAF aircraft in self defence or unless asked to investigate by the Royal Thai government. Furthermore, Mr Marsh urged caution on the Tribunal in making a finding that Mr Bastion's experiences constituted a traumatic event because to do so would denigrate the experiences and memories of those servicemen and women who had actually been involved in active conflict or combat.

135. The Tribunal considers that Mr Bastion has been consistent in his reporting of the events he experienced in Ubon on 20 June 1962. While the issue of armaments and digging of tents is not reported in the Unit History Sheets, it is reported in the official history of "The RAAF in Vietnam". Furthermore, the Unit History does note that there was sufficient concern at the RAAF Ubon base to have armed aircraft on two minute alert and to scramble the aircraft at daybreak. The Tribunal considers that there was sufficient concern of threat in the minds of the Unit's leaders to cause this to happen. This must have been seen as no mere idle threat because instructions were given to make ready to self defend. Self-defence was clearly allowed under the Rules of Engagement.

136. Mr Marsh, relying on Mr Tilbrook's opinion, contended that there was no actual threat or danger and no exchange of fire. Mr Bastion readily acknowledges this. There was however a situation where those in authority in Ubon on 20 June 1962 did believe there was a threat and acted accordingly. The Tribunal accepts Mr Bastion's evidence that he was directed to dig a trench and was issued with a Bren gun. It is also accepted that Mr Bastion had received training in the operation of this weapon. That this activity occurred is supported by the report of such circumstances in "The RAAF in Vietnam". It must also be remembered that service in Ubon at that time has been determined to be operational service. The Tribunal finds that in all the circumstances, there was for a period of time, on 20 June 1962, a belief by Mr Bastion and others in authority, that there was an actual threat to the base at Ubon which resulted in the appropriate alerts and actions being undertaken. That it turned out subsequently to not be a threat, cannot detract from the reality the action taken was done so in the belief that there was a serious threat. Such a finding does not denigrate the experiences of servicemen and women involved in actual battle in other theatres of war. As Mr Marsh himself said, any service overseas has the potential to involve danger and this is reflected in the legislation.

137. The Tribunal was referred by Mr Marsh to the evidence provided by Professor McFarlane in Re Cranage and Repatriation Commission (supra) concerning the RMA's considerations in developing the diagnostic criteria and Factors for post traumatic stress disorder. Professor McFarlane had noted that in developing the various criteria or Factors, the RMA was attempting to deal with issues that primarily arose out of exaggeration of threat in an individual's mind when in fact there was no realistic basis for that perception. That is quite proper. In Mr Bastion's case, the Tribunal finds that there was realistic basis for his perception and that realistic fear was not only held by Mr Bastion, but also by the authorities at the time who put the base on alert. Furthermore, Professor McFarlane in Re Cranage and Repatriation Commission (supra), noted that the intention of the Statement of Principles was not to exclude servicemen who may have been on patrol for a year for example in the jungle in Vietnam but had never seen a Viet Kong or never fired a shot. Clearly, such an individual who had had no objective engagement with the enemy, did realistically perceive a threat to his physical integrity and that of his comrades. In Mr Bastion's case, the circumstances of the Ubon base being put on alert was in fact a realistically perceived threat as advised to Mr Bastion by those in authority. Professor McFarlane went on to say that a retrospective analysis of the absence of any combat or engagement with the enemy does not mean that there was an absence of threat to the individual. Hence a decision on such matters would require an evaluation of the possibility of enemy engagement rather than the reality of its occurrence or not. The Tribunal found further relevance in Professor McFarlane's evidence in Re Cranage and Repatriation Commission (supra) at paragraph 66 of that decision, in his discussion of the fact that historians largely obtained information from "Generals and those in charge of battles". Professor McFarlane referred to an American historian, Mr Marshall, Chief Historian with the American Armed Forces during World War II. Mr Marshall had apparently reported:

"... in the face of battle the average serviceman knows little more of what is going on than is happening 18 inches in front of his nose. Often they are situations of tremendous fear and confusion... the idea that we can document objectively what happens in warfare is basically fallacious".

138. Professor McFarlane also noted that in discussing the concept of perception to be determined at the time the stressor is being experienced, whilst it would be relevant to look at contemporaneous assessments by others who served in the same environment as an Applicant, it would be preferable to have contemporaneous reports "either by this man or somebody close to his circumstances". Professor McFarlane, at paragraph 76, referred to some studies of "Whitehall bureaucrats" which apparently show that "people who are higher up the rung are less stressed than people who are halfway down the rung who don't know what's going on".

139. The Tribunal now turns to consider Mr Bastion's individual reaction to the circumstances in which he found himself on 20 June 1962. Mr Bastion did not, nor did those in charge, know that the radar indications were related to a meteorological phenomenon. By the time this was ascertained, there had been an eleven hour alert with aircraft on two-minute alert. Mr Bastion was a 24 year old man, who believed he was on a peacekeeping mission. That another serviceman might not have reacted like Mr Bastion to these circumstances is entirely possible. This Tribunal must however deal with the individual circumstances of this veteran and his individual reactions. The Tribunal finds that Mr Bastion's reaction to the circumstances he found himself in was one of intense fear. As he told the Tribunal, he was terrified. The Tribunal concludes that based on the discussion by Professor McFarlane of the intention behind the exposure to a traumatic event, that Mr Bastion in reality believed that he was confronted with an actual threat and objectively, this was understandable in the circumstances and corroborated by the Unit History as well as that contained in Mr Coulthard-Clark's discussion of the event. Mr Bastion's reaction subjectively was one of intense fear. The Tribunal determines therefore that Mr Bastion was exposed to a traumatic event as detailed in paragraph 2(b)(A) of the relevant Statement of Principles.

140. In relation to the diagnostic criteria contained within 2(b)(B), the Tribunal finds that based on Mr Bastion's evidence and the opinion of the treating Psychiatrist, Dr Altman, and Dr Dinnen's opinion, Mr Bastion has recurrent and intrusive distressing recollections of the event on 20 June 1962 including thoughts and perceptions, as envisaged in 2(b)(B)(i).

141. Concerning diagnostic criteria contained within paragraph 2(b)(C), Mr Bastion reports, and the Tribunal accepts this in addition to psychiatric opinion, that Mr Bastion avoids thoughts, feelings or conversations about the trauma. He is reluctant to talk about it as is envisaged in 2(b)(C)(i). Mr Bastion also has a marked diminished interest or participation in significant activities as detailed in 2(b)(C)(iv). Mr Bastion's social activities have significantly diminished. He has difficulty with his emotional relationships particularly his wife and stepdaughter, as dealt with under 2(b)(C)(v).

142. Mr Bastion has been on treatment through counselling and medication under the care of psychiatrist Dr Altman. He reports this has assisted him and his previous sleep disturbance, which the Tribunal accepts as being present, has improved. Furthermore, Mr Bastion's outbursts of anger and poor concentration are still present but have abated somewhat following ongoing treatment. The Tribunal finds therefore that Mr Bastion satisfies diagnostic criteria 2(b)(D)(i), (ii) and (iii).

143. In relation to the criteria contained within paragraph 2(b)(E), Mr Bastion has suffered the symptoms of post traumatic stress disorder as outlined in the diagnostic criteria for more than one month. In relation to criteria 2(b)(F), his condition has caused clinically significant distress and impairment in Mr Bastion's social and occupational areas of functioning, as was confirmed in his evidence to the Tribunal and in the reports of Dr Altman and Dr Dinnen.

144. The Tribunal finds therefore that Mr Bastion satisfies the diagnostic criteria for post traumatic stress disorder. The Tribunal notes Dr Altman's and Dr Dinnen's opinions that part of the post traumatic stress disorder symptomatology is major depression. The Tribunal agrees with these opinions. Therefore, the Tribunal finds that the correct diagnosis of Mr Bastion's psychiatric condition is post traumatic stress disorder with major depression. The Tribunal prefers this diagnosis to the diagnoses proposed by Dr Shand or no diagnosis by Dr Cullen. On all of the evidence available to the Tribunal, including the presentation of Mr Bastion and other psychiatric opinion, the Tribunal is reasonably satisfied that the best diagnosis available is post traumatic stress disorder. On the Tribunal's understanding of Dr Shand's discussion of the diagnostic issues, the content of his report in the Tribunal's view, is not inconsistent with a diagnosis of post traumatic stress disorder as was also opined by Dr Dinnen in his evidence to the Tribunal.

145. The Tribunal now turns to the issue of causation of post traumatic stress disorder. As Mr Bastion has operational service, the Tribunal must apply the reasonable hypothesis standard of proof.

146. The hypothesis put to the Tribunal is that Mr Bastion experienced a severe stressor as defined in the Statement of Principles, when on 20 June 1962, there was an alert of imminent threat of attack to the Ubon RAAF base. The Tribunal is not to engage at this stage in an exercise of making determinations in relation to fact as discussed in Dixon v Repatriation Commission (1999) 59 ALD 315. In reality, in addressing the diagnostic criteria to establish the diagnosis of post traumatic stress disorder, the Tribunal has, of necessity, for diagnostic purposes, addressed some issues of Mr Bastion's veracity and issues of fact. However, the stage which the Tribunal currently deals with relates to whether or not there is a causative link between service and post traumatic stress disorder. The Tribunal finds that it is not beyond the bounds of reality to accept that Mr Bastion's exposure to a threat of danger to himself and others was a severe stressor as defined and thus a reasonable hypothesis is raised pursuant to subsection 120(3) of the Act.

147. In relation to whether or not the Tribunal can accept sufficient of the facts to support the raised reasonable hypothesis, the Tribunal has, in a process of dealing with the diagnostic issues, accepted that Mr Bastion was threatened with danger to himself and others. That the danger never eventuated was not known to Mr Bastion at the time he experienced this event and the fear that followed. The Tribunal accepts that Mr Bastion was asked to dig a trench and was provided with a Bren gun and ammunition. While this is not recorded in the Unit History, it is recorded in Mr Coulthard-Clark's account as advised to him by two pilots. While, as Mr Tilbrook notes, Mr Coulthard-Clark's report is uncorroborated, this is not uncommon in the veteran's jurisdiction and the Tribunal is not convinced beyond reasonable doubt that the account provided by Mr Bastion and Mr Coulthard-Clark as advised by two pilots is disapproved beyond reasonable doubt. The Tribunal finds that an event occurred in which Mr Bastion was faced with a realistic threat which he keenly felt and caused certain reactions in him. That the threat was not realised, does not in all of these circumstances dispose of Mr Bastion's reasonable hypothesis. The threat was realistic not fanciful as attested to by the state of alert, the armament of the planes, the digging of the trenches and the provision of arms. He was in a heightened sense of alert, fear and tension.

148. On all of the evidence available to the Tribunal, the Tribunal can find no fact to disprove beyond reasonable doubt that Mr Bastion has a war-caused condition of post traumatic stress disorder and that he satisfies to the requisite standard of proof the Statement of Principles. Thus, the Tribunal is not satisfied beyond reasonable doubt, pursuant to subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Bastion's post traumatic stress disorder is war-caused. Thus post traumatic stress disorder is accepted as a war-caused condition with effect from 12 May 1999, a date three months prior to Mr Bastion's claim.

149. In relation to the issue of the correct assessment of Mr Bastion's post traumatic stress disorder, the Tribunal must decide this pursuant to subsection 120(4) of the Act and by applying the requirements of the Guide.

150. On 17 April 2001, Dr Dinnen assessed Mr Bastion's post traumatic stress disorder as having an impairment rating of 28 points. This rating is accepted by both parties. Dr Altman's assessment of Mr Bastion on 25 July 2000 achieved an impairment of 48 points. Having considered Mr Bastion's evidence in conjunction with all of the medical opinions, the Tribunal concludes that the correct assessment for post traumatic stress disorder is 28 points from Chapter 4 of the Guide and as detailed by Dr Dinnen.

151. The combined assessment of all of Mr Bastion's war-caused conditions was considered by Dr Chen, Consultant in Occupational Medicine. The Tribunal considers, and there is no disagreement between the parties, that the combined assessment of all of Mr Bastion's war-caused conditions is 32 points in addition to 28 points for post traumatic stress disorder which provides a Disability Pension from Scale 23.1 of 90 per cent of the General Rate with effect from 12 May 1999. This assessment is arrived at by using a lifestyle rating at the higher range of lifestyle expected for that impairment rating.

152. The final issue for the Tribunal to determine is whether or not Mr Bastion is qualified for pension at the Special Rate as provided in section 24 of the Act. Mr Bastion satisfies subsection 24(1)(a) of the Act in that he has achieved a General Rate Pension at 70 per cent or higher.

153. Dr Altman states that Mr Bastion cannot work because of his post traumatic stress disorder alone. Dr Dinnen stated that at the time of his report, Mr Bastion was at that time unable to work more than eight hours.

154. Mr Bastion's work record indicates no time off work for sick leave as he has stated and has been provided in evidence from Dr Chen and Mr Defina, there were no complaints about his behaviour or disciplinary procedures. The Tribunal notes that his cessation of work from Comcar was recorded by Pricewaterhouse Coopers as relating to an age retirement.

155. The Tribunal must also take into account any other factors which may impact on Mr Bastion's ability to work or obtain work. In this regard, the Tribunal notes that Mr Bastion does have conditions of lumbar and cervical spondylosis. These conditions have been noted on radiological examination. Particularly in relation to the cervical spondylosis, this provides significant impairment. Mr Bastion acknowledged that the cervical spondylosis and back condition may impact upon his continuing ability to work although his evidence was that prior to his cessation of work, while there may have been discomfort and he needed to seek medical attention and physiotherapy and other treatment modalities from time to time, these conditions did not stop him working. Dr Chen notes Mr Bastion's evidence that he has difficulties standing for long periods due to discomfort in his back and problems with his neck which would impact upon him occupationally. Dr Chen concluded that the combination of accepted and non-accepted conditions which included the lumbar and cervical spondylosis and at that time, post traumatic stress disorder, would cause him problems in obtaining or continuing to work.

156. The Tribunal accepts that post traumatic stress disorder is the predominant cause in Mr Bastion's continuing inability to work. Subsection 24(1)(c) of the Act deals with whether there are reasons other than a war-caused injury or disease preventing a veteran from working. In this regard, the Tribunal notes the decision in Repatriation Commission v Smith (1987) 15 FCR 327 in which it was noted that the Tribunal must attempt an assessment of what the veteran would have done if he had none of his service disabilities. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J noted that decisions in considering subsection 24(1)(c) of the Act should be made with an eye to reality applying common sense and making a practical decision. In Forbes v Repatriation Commission (2000) 58 ALD 394, R D Nicholson J referred to the decision of Burchett J in Cavell v Repatriation Commission (supra), which noted that:

"...any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate...."

157. R D Nicholson J noted that it is possible that a war-caused condition may be the more dominant of the causes preventing work but if there is also present a non war-caused condition having some affect in combination, then the presence of the non war-caused condition will deny a veteran's qualification for the Special Rate pension. R D Nicholson J also recognised that Parliament had sought to ameliorate subsection 24(1)(c) of the Act by the provisions contained within subsection 24(2)(b).

158. Considering Mr Bastion's circumstances as a whole, it is the Tribunal's finding that the combination of the accepted condition of post traumatic stress disorder and the cervical and lumbar spondylosis caused Mr Bastion's inability to continue in work or to obtain work. The Tribunal acknowledges that the conditions of cervical spondylosis and lumbar spondylosis may not be the predominant cause of Mr Bastion's continuing inability to work or obtain work but they are significant. Dr Dinnen and Dr Altman in their opinions did not consider the implication of these other conditions. The Tribunal is not aware of whether or not Dr Dinnen or Dr Altman knew of these other conditions. The Tribunal is also concerned that the reason for cessation of work from Comcar was related to an age retirement and this issue of age is a factor which must be taken into account in terms of making a determination as to Mr Bastion's compliance with subsection 24(1)(c) of the Act as to whether or not his age may prevent him from continuing to work or to obtain work.

159. The Tribunal notes that Mr Bastion has not attempted to find work since leaving Comcar and therefore he is not able to avail himself of the ameliorating provisions contained within subsection 24(2) of the Act.

160. In all of the circumstances, the Tribunal determines that Mr Bastion does not meet the requirements of subsection 24(1)(c) of the Act and therefore as the qualification criteria contained within section 24 are cumulative, failure to meet one provision means that the section as a whole is not met. Mr Bastion is found by the Tribunal not to meet the section 24 requirements and therefore is not qualified to receive pension at the Special Rate.

161. Accordingly for all the reasons set out above and in consideration of the evidence, the Tribunal determines that the decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975. In substitution therefor, the Tribunal decides that:

(i) Mr Bastion has a war-caused condition of post traumatic stress disorder with major depression and is qualified for Disability Pension for this condition with effect from and including 12 May 1999.

(ii) The Disability Pension for all of Mr Bastion's war-caused conditions is assessed at 90 per cent of the General Rate with effect from and including 12 May 1999.

I certify that the 161 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member

Signed: .....................................................................................

Jessica Purches, Associate

Date of Hearing 4 December 2001

Date of Decision 12 August 2002

Counsel for the Applicant Mr N Dawson of Counsel

Solicitor for the Applicant R L Whyburn and Associates

Representative for the Respondent Mr J Marsh, Senior Departmental Advocate