Strub and Repatriation Commission [2003] AATA 2 (2 January 2003)

Last Updated: 7 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/795

VETERANS' APPEALS DIVISION )

Re DIANNE STRUB

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date 2 January 2003

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that: 1. The death of the veteran, Eric John Strub on 30 October 1999, was war-caused. 2. Dianne Strub is entitled to be paid widow's pension, pursuant to the provisions of the Veterans' Entitlements Act 1986, with effect from 31 October 1999.

............(Signed)..................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS - death in unusual motor-cycle incident, mental disturbance, accepted post traumatic stress disorder prior to incident

Veterans' Entitlements Act 1986

REASONS FOR DECISION

Deputy President Don Muller

1. This is an application to review a decision to refuse a claim by Dianne Sylvia Strub for widow's pension in respect of the death of her late husband Eric John Strub.

2. There is no dispute about the following facts and the Tribunal finds as follows:

(i) Eric John Strub was born on 2 February 1948.

(ii) He served in the Australian Army from 31 October 1966 to 30 October 1972.

(iii) His eligible war service, which was also operational service, for the purposes of the Veterans' Entitlements Act 1986, was in South Vietnam from 23 July 1969 to 27 August 1970. He also had eligible defence service with the Royal Australian Air Force from 12 March 1973 to 29 July 1988.

(iv) He married the Applicant, Dianne Sylvia Strub, in October 1979.

(v) He was a plant operator in Vietnam. He experienced comrades being blown up by land mines and other traumatic events.

(vi) He was diagnosed as suffering from Post Traumatic Stress Disorder in or about 1996, when he began having treatment by Dr. May, psychiatrist. He had the disorder accepted by the Respondent as having been war-caused, from 16 July 1999.

(vii) He was an experienced motor-cyclist who had been riding for about 30 years.

(viii) He was killed when he was riding his motor cycle on 30 October 1999. He drove off the highway, hit a mound of earth and was catapulted into a large tree.

3. The hypothesis submitted on behalf of Mrs. Strub was to the effect that the circumstances surrounding the death of her late husband were so unusual that a reasonable explanation is that immediately prior to his running off the road he suffered from some mental impairment due to his Post Traumatic Stress Disorder. Therefore, his death was war-caused.

4. The Tribunal heard evidence from the Applicant, her daughter and Dr. May. The Tribunal also had access to statements by witnesses to the motor-cycle ride, Steven Esse and Anthony John Sexton. The Tribunal has no reason to reject any of this evidence and finds as follows:

(i) In the week leading up to the motor-cycle ride, the veteran had been under more stress than usual. There had been a severe storm where he lived with his family. He had to travel by train from Bundaberg to Brisbane and then drive a car back to Bundaberg. His wife noticed that his behaviour was "different".

(ii) On 30 October 1999, a charity group had organised a ride for local motor-cyclists. Approximately 150 motor-cycles were involved. They were to collect money for charity along the way. The veteran decided to go on the ride with them.

(iii) Steven Esse met the veteran during the course of the ride, at the South Kolan Hotel. (The veteran did not consume any alcohol on that day - nor is there any suggestion that alcohol played any part in the incident.) Steven Esse's statement contained the following:

"I was talking to him at the South Kolan Hotel, John having a glass of coke during the lunch break. We saw a semi-trailer pass by the hotel on the road outside. On the semi-trailer, there was an old open-bowl scraper. John said that he hadn't seen a scraper like that for a long time. John knew how old they were and said that he worked with that type of scraper in Vietnam. We talked about the machinery involved by way of mutual interest in general conversation. Although he seemed generally in a good mood, I was surprised at his abrupt ending of the conversation by saying that 'I've got to go.' I didn't see him after that. I went to get another sausage for lunch. John didn't eat any lunch. There were roadworks further up the road and the similar type of machines were being used in those works."

(iv) Anthony John Sexton witnessed the incident in which the veteran drove off the highway. His statement contains the following:

"At about 1.00pm that day, shortly after leaving the South Kolan hotel I was the third bike in a group of three motor cycles, followed by a car. We had just overtaken the car and we were travelling at 100km/h. We were approaching the sweeping, blind left hand bend in the road. I recall that there were double white lines painted on the road. The road was sealed bitumen and in good condition and dry. The weather was fine and clear. The sun was shining and high in the sky.

We were riding along the main straight before "Mango Bend" when someone on a Harley Davidson went flying past us. Rod, Tony and I were sitting on 100k's at this stage. I would have estimated the speed of the Harley to have been about 120 plus. It passed us on the straight and went around Mango Bend. About five (5) seconds later I saw a 250cc two stroke bike go past us as well. It was going about the same speed as the Harley.

It passed us about three quarters of the way along the straight before Mango Bend. I saw the Harley go around the bend with no problems. The other bike never even seemed to try and go around the bend. It went straight ahead through the apex of the corner. The rider put his feet down as if to try and paddle the bike. I never saw any brake light come on. He had his feet off the pedals, and near the road, so he wouldn't have been able to put on his back brakes.

He went straight ahead, and off the right hand side of the road. As soon as he got off the road there was a big pile of dust, and I couldn't see the bike or rider. I saw bits and pieces flying off out of the dust though.

Because of the nature of that section of road, I rode around the bend and pulled over to the side of the road. I then ran back to where he was. There were other riders that had stopped there too.

I have been riding motorcycles since I was 16 years old, and have raced motorcycles for about 5 years. In my opinion the deceased never seemed to try and negotiate the corner. It was as though he froze or blacked out, or something like that. He just didn't seem to do anything to evade the problem."

(v) Dr. May gave evidence that the veterans' Post Traumatic Stress Disorder was moderate to severe. He described it as "quite impairing". Dr. May said that it was possible that the veteran went into a dissociative state triggered by the earthmoving equipment. He thought it was uncharacteristic for the veteran to behave in the apparently irresponsible way that he did. Dr. May said that the veteran may also have experienced a "startle response" to the noise of the motor-cycles, or he may have had an intrusive recall.

5. The Tribunal also heard evidence from Alison Leslie Van Eps, the Applicant's daughter. Ms. Van Eps drew a map of the area where the motor-cycle incident occurred. I accept her evidence that the bend in the road was not sharp.

6. I do not accept that the veteran lost control of his motor cycle by attempting to go too fast around a sharp corner. He was an experienced motor-cyclist. The bend in the road was not sharp. The other motor-cyclists had no difficulty in going around the bend in the road.

7. The veteran appeared to make no attempt to go around the bend, no attempt to brake or slow down. The only logical explanation for his behaviour is that he suffered from some mental disturbance at the time. Whether that disturbance was a startle response, dissociative state, an intrusive recall or some other mental aberration we will never know. Nevertheless, I believe that there is a reasonable hypothesis which links that mental disturbance with his Post Traumatic Stress Disorder and hence to his Army service.

8. Consequently, the Tribunal sets aside the decision under review and in substitution determines that the death of Eric John Strub was war-caused.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

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

C. O'Donovan, Associate

Date/s of Hearing 19 December 2002

Date of Decision 2 January 2003

Counsel for the Applicant Ms. M. Brennan

Solicitor for the Applicant Gilshenan and Luton

Respondent Mr. M. Smith, departmental advocate