Measures and Repatriation Commission [2003] AATA 909 (16 September 2003)

Last Updated: 16 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/898

VETERAN'S APPEALS DIVISION	)
	Re	DEREK MEASURES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr I R Way, Member

Date 16 September 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

....................(Sgd)......................

I R Way

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - post traumatic stress disorder - whether condition resulted from the veteran's serious default or wilful act, or arose from a serious breach of discipline, or arose from an occurrence that happened whilst the veteran was committing a serious breach of discipline - car accident - death of child - effect of section 9(3) of the Veterans' Entitlements Act 1986

Veterans' Entitlements Act 1986 section 9(3)

Ferriday v Repatriation Commission (1996) 69 FCR 521

Re Thompson and Repatriation Commission (AAT No 10177, 12 May 1995)

McPherson v Repatriation Commission (1988) 8 AAR 229

Re Nelson and Repatriation Commission (1988) 15 ALD 49

Re McGrath and Repatriation Commission (1989) 19 ALD 95

Repatriation Commission v Levi (1994) 33 ALD 79

Stoddart v Repatriation Commission [2003] FCA 334

REASONS FOR DECISION

16 September 2003

Mr I R Way, Member

1. This is an application by Derek Measures for review of a decision of the Repatriation Commission dated 6 October 2000, and affirmed by the Veterans' Review Board (VRB) on 9 August 2001, which determined that the veteran's Post Traumatic Stress Disorder (PTSD) is not war caused.

2. It was agreed by both parties and accepted by the Tribunal that this matter should be heard on the papers without proceeding to a formal hearing.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and other documentary evidence as set out below.

§ Report of Dr G Rees dated 21 November 2001

§ Emotional and Behaviour Medical Impairment Worksheet completed by Dr G Rees, dated 6 December 2001

§ Bundle of documents from applicant including statements and 1999 and 2001 tax return details

§ Extract from service medical records

§ Employment questionnaire

§ Report of Dr Knight dated 29 January 2002

§ Report by Writeway Research Service dated 28 February 2002

§ Further report by Writeway dated 28 April 2002

§ Statement of D Johnson dated 2 July 2002

§ Extract from article "Some Facts"

§ Commander's diary narrative

§ Statement of M Rudd dated 12 June 2002

§ Statement of D Heaziewood, Centrepoint Plaza Medical Centre dated 12 July 2002

§ Statement of M Robbins (undated)

§ Statement of Flight Lieutenant Cooke dated 2 July 2002

§ Submissions of D Robbins dated 31 July 2002

§ Letter and enclosures from Soldier Career Management Agency

§ Statement of S Middleton dated 31 July 2002

§ Statement of D Measures dated 28 August 2002

§ Applicant's Statement of Facts and Contentions dated 2 December 2002

§ Respondent's Statement of Facts and Contentions faxed 17 December 2002

§ Report by Writeway Research Service dated 31 March 2003

§ Report of Dr G Rees dated 12 March 2003

§ Report by Writeway Research Service dated 5 September 2002

§ Supplementary report by Writeway Research dated 29 October 2002

4. The applicant was born on 31 October 1943 and served in the Australian Army from 30 August 1963 to 2 October 1969, including operational service in Vietnam from 11 December 1967 to 5 December 1968.

5. The applicant has an accepted service related disability of tinea and a non-service related disability of PTSD, the subject of this appeal.

6. There is no disagreement between the parties and the Tribunal, on the material before it, accepts that the applicant suffers from PTSD and that the applicant's involvement in a motor vehicle accident in Vietnam on 11 August 1968 gave rise to his PTSD.

7. The initial and crucial issue in this matter is whether the applicant's involvement in the motor vehicle accident in Vietnam resulted from a serious breach of discipline committed by him or arose from an occurrence that happened whilst the applicant was committing a serious breach of discipline. If not, the applicant's claim for pension for war caused PTSD must succeed.

8. If the Tribunal were to find against the applicant in respect of the motor vehicle accident then a further issue is whether there are any war service related severe stressors to which his PTSD is causally related.

LEGISLATIVE FRAMEWORK

9. The applicant's PTSD is war caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient grounds for making that determination.

10. The relevant provisions of the Veterans' Entitlement Act 1986 are as follows:

"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;

...

(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:

(a) resulted from the veteran's serious default or wilful act; or

(b) arose from:

(i) a serious breach of discipline committed by the veteran; or

(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.

...

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.

...

(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.

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; ...

(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.

(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."

11. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and section 196B sets out the functions of the RMA. Section 196B(2) provides:

"(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a) operational service rendered by veterans; or

(b) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."

12. The RMA has, pursuant to section 196B(2) of the Act determined a Statement of Principles (SoP) in respect of PTSD.

13. It is common ground between the parties and the Tribunal accepts that the relevant SoP in this matter is Instrument No 3 of 1999 (as amended by No 54 of 1999).

14. Instrument No 3 of 1999 relevantly provides as follows:

"Kind of injury, disease or death

2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.

(b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):

(A) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person's response involved intense fear, helplessness, or horror; and (B) the traumatic event is persistently re-experienced in one or more of the following ways:

(B) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.

Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

...

Other definitions

8. For the purposes of this Statement of Principles:

`DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;

`experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence"

15. It has been submitted for the applicant, that the applicant did not commit serious default or wilful act or serious breach of discipline at the time of the motor vehicle accident in Vietnam in 1968.

16. The circumstances in respect of this motor vehicle accident are set out below.

17. As a result of the accident the applicant was charged with two offences as follows:

(i) Whilst on active service committing a civil offence, that is to say causing death by dangerous driving contrary to Section 1 of the Road Traffic Act, in that he, at Vung Tau in the Republic of South Vietnam, at or about 1850 hours on the 11 August 1968 drove AMF vehicle 108-662 in a manner which was dangerous to the public having regard to all the circumstances of the case and so caused the death of one Ly Van Oanhs, a Vietnamese male child (under section 41 of the Army Act).

(ii) Whilst on active service conduct to the prejudice of good order and military discipline in that he, at Vung Tau in the Republic of South Vietnam, on the 11 August 1968 on or about 1850 hours drove AMF vehicle no 108-662 without obtaining proper authorisation for the use of the said vehicle (under section 40 of the Army Act).

18. The applicant was tried by General Court Martial from 3 to 6 October 1968 at Vung Tau, South Vietnam.

19. The applicant entered a plea of not guilty to the first charge and a plea of guilty to the second charge. The applicant was found guilty of both charges. He was sentenced to a period of detention of one year which was subsequently mitigated to a period of 9 months. He was released early due to his good behaviour in gaol.

20. The VRB, after considering the transcript of the veteran's Court Martial summarised the case and commented in the following terms.

"33. The Board was assisted by the transcript of the Courts Martial. The applicant's evidence was that he noticed an oncoming Peugeot on his side of the road just prior to a left hand curve in the road and he said he pulled over to the right side of the road to avoid the oncoming vehicle. He said he was in the process of putting his vehicle back to its original position on the road when he saw the child. Immediately before he had the accident he said he was doing 30-35 miles per hour. A Vietnamese witness put the veteran's speed at about 90 kilometres per hour and that he heard the vehicle coming around the corner, `going at such a speed that it caused me take particular notice of it'. (page 20 of transcript)

34. He stated that a group of children were walking along the gravel verge of the road, about a metre away from the bitumen. The veteran, in his evidence, said that the child was about 18 inches from the edge of the bitumen. The passenger, Pte Polinghorne put the veteran's speed at about 25-30 miles per hour and stated that he did not recall seeing any traffic on the road.

35. The verdict of guilty, by implication, means that the Court considered that the veteran's manner of driving was such as to constitute a danger to other road users. If the Court had considered that other factors, such as another vehicle on the wrong side of the road, had created a situation which made it unavoidable for the veteran to avoid the accident, then a verdict of not guilty would have been returned.

36. ...the matter is further compounded by the fact that at the time of the accident the veteran was driving a vehicle which he was not authorised to drive...

37. ...

38. The motivation behind the taking of the vehicle and the subsequent driving was said to be attributable to the need to apologise to the Vietnamese woman. ..."

21. The Tribunal accepts the Boards summary and comments.

22. The Tribunal notes that the Writeway Research Report dated 29 October 2002 states that the applicant had been drinking at several bars for a number of hours, at Vung Tau on the afternoon of 11 August 1968. However, the Tribunal is mindful that there is no evidence about the applicant's drinking or being under the influence of alcohol in the applicant's Court Martial proceedings.

23. In considering this matter the Tribunal was referred by both parties to a number of relevant cases. It is appropriate to deal with each of these in turn.

24. Firstly, it was submitted for the applicant that the terms of section 9(3) of the Act were:

"...considered by the Federal Court of Australia in Ferriday v Repatriation Commission (1996) ... The terms `serious default or wilful act' are to be taken to be serious misconduct that warrant serious condemnation. In this case the soldier shot and killed two (2) Sergeants and wounded a third by firing his army issue rifle into a tent used as a Sergeants Mess. The soldier was tried and convicted of manslaughter. He failed in his appeal to obtain a pension as applied for. It was found that he had sufficient awareness of what he was doing for the collecting and the discharging of the firearm for his actions to be a wilful act. The discharging of the firearm in an army camp was a serious breach of discipline. Therefore the provisions of section 9(3) applied.

The act of Ferriday in killing two (2) Sergeants and wounding a third was not raised as a serious breach of discipline, only the discharge of a firearm in an army camp. His awareness of what he was doing made the act a wilful act.

Based on Ferriday, Pte Measures has not committed a serious breach of discipline in causing the death of the child. He has not committed a serious default or wilful act in accident as the accident was not deliberately carried out by him with any premeditation or forethought. It was not wilful. He did not deliberately hit the child with the vehicle."

25. The respondent submitted:

"In respect of Ferriday at the Federal Court level, an appeal, which was dismissed, the ratio was about the standard of proof to be applied in considering the provisions of section 9(3). Mr Ferriday was not ultimately successful in his application. It is submitted that the only relevance of this authority in the applicant's case is that determinations about section 9(3) issues should be made to the reasonable satisfaction standard of proof."

26. The Tribunal accepts that "serious default or wilful act" is to be taken to be serious misconduct that warrants severe condemnation and that determinations in respect of section 9(3) are to be made to the Tribunal's reasonable satisfaction. However, further to this, the Tribunal accepts the respondent's submission and has found the matter of Ferriday v Repatriation Commission (1996) 69 FCR 521 to be of little assistance in this matter.

27. It was submitted for the applicant that:

"In the case of Thomas Alexander Thompson v Repatriation Commission..., Mr Thompson attempted suicide by driving his vehicle into the back of a semi-trailer, which he claimed was a result of his post traumatic stress disorder caused by his service in Vietnam. In that case the Tribunal found that the action of the applicant in his attempt at suicide, was not so blameworthy as to disqualify the veteran from receiving a pension. The Tribunal found that the actions extending from the psychological condition hardly warranted serious censure in the way the Repatriation Commission suggested and found that section 9(3)(b) had no application. In this application by Mr Measures it is submitted that the reasons for his taking the vehicle outside the camp area were not so blameworthy as to disqualify him from receiving a pension and therefore the provisions of section 9(3) should not apply."

28. The Tribunal does not accept that the circumstances in the matter of Re Thompson and Repatriation Commission (AAT No 10177, 12 May 1995) are similar to those in this matter. There has been no suggestion that the applicant was suffering from any war caused psychiatric condition at the time the Vietnamese child was hit and killed, such that he could be considered to be not so blameworthy as to disqualify him from receiving a pension pursuant to section 9(3) of the Act. The Tribunal therefore is satisfied that the case of Thompson can be distinguished from the applicant's case.

29. It was further submitted:

"In the case of Robert Joseph McPherson v Repatriation Commission..., Mr McPherson failed to disclose his club feet. It was submitted by the Commission that the suppression of the fact that he had club feet amounted to a wilful act within the meaning of the phrase `serious default or wilful act' of Section 9(6). Justice Morling stated that in his opinion it was erroneous for the Tribunal to disregard the appellant's motivation. A veterans' motivation must be relevant to the question whether his conduct was such as to warrant him being deprived of a pension. If his motivation in suppressing information as to the condition of his feet had been, say, to advance his financial or other interests, his conduct in that regard might have been deserving of censure. But if his motivation for that conduct was a desire to serve his country in time of war it was well open to the Tribunal to find that his conduct was not so blameworthy as to warrant a finding that it was a wilful act. He then went on to find that the Tribunal erred in law in concluding that the appellant's conduct disqualifies him from receiving a pension without taking into account and giving due to weight to his motive for engaging in that conduct.

In this matter of Measure, it was Mr Measures intention to rectify a situation which had arisen with regard to Vietnamese personnel who were working on the base and it is for this reason that he left the base area in the vehicle without proper authority. It is submitted that his reasons for leaving the base area should be considered and as his reasons were of noble nature then he should not be prevented from getting his pension pursuant to the use of the motor vehicle."

30. The Tribunal accepts that Mr McPherson's failure to disclose his club feet was motivated by his desire to serve his country and therefore his conduct was not such as to warrant a finding that it was a wilful act. The Tribunal has difficulty in equating McPherson's actions with those of the applicant. The Tribunal, on the material before it, does not accept that the applicant's reasons for leaving the base were of a noble nature. The Tribunal is satisfied that the applicant's purpose in leaving the base was to visit a Vietnamese female acquaintance to apologise over an issue that arose earlier in the day and as such the Tribunal finds that the applicant's motive for leaving the base has no parallel with the motivational context in McPherson v Repatriation Commission (1988) 8 AAR 229.

31. The Tribunal is mindful that the applicant's motivation for leaving the base is a relevant consideration in this matter. However, bearing in mind what has been said above, on the material before it, the Tribunal is satisfied that the applicant's conduct in leaving the base was a wilful act so blameworthy as to deserve censure.

32. The Tribunal is further referred to the matter of Re Nelson and Repatriation Commission (1988) 15 ALD 49 and it was submitted that:

"Mr Nelson applied for a pension and it was submitted that he should not be entitled to the pension in respect of his anxiety state because of the provisions of Section 9(3). It was submitted that his anxiety state arose through his period of imprisonment because of his desertion from the Australian Army. The Tribunal found that if the jail experience contributed to his condition at all then it was highly speculative and if the jail experience was casually relevant to this condition then he would be excluded by the provisions of Section 9(3). The offence to which the applicant was convicted was `deserting his majesty's service'.. The Tribunal continued to state that desertion is a breach of discipline and stated further that any breach which can result in imprisonment should be regarded as serious. In the case of Mr Measures, Mr Measures was not found guilty of any offence which could be described as `a breach of discipline'. It was not a breach of discipline that caused the death of the child, and as the above cases outline, the death of the child does not infer a breach of discipline. Mr Measures did serve time in prison for the death but it cannot be said that he served time in prison for a breach of discipline. Accordingly the provisions of the matter of Nelson v Repatriation Commission should not apply."

33. The Tribunal rejects this submission. The applicant was found guilty of conduct to the prejudice of good order and military discipline and was sentenced to detention.

34. It was also submitted for the applicant that the Tribunal should take into account the matter of Re McGrath and Repatriation Commission (1989) 19 ALD 95 where:

"Mr McGrath applied for acceptance of cervical spondylosis which he suffered in a motor vehicle accident during his war service. Mr McGrath suffered injuries when an army jeep in which he was a passenger failed to negotiate a bridge and fell into a riverbed below. The trauma involved in the accident affected the applicant's cervical spine which caused his then condition. One of the main issues in that case was the use of the jeep. In that case McGrath had been given the use of the jeep on a number of occasions prior to the incident in question and he believed that he had the consent to use the vehicle in light of what he had done in the past. Accordingly the provisions of Section 9 were found not to apply.

In this matter of Measures, Private Measures had the use of the vehicle as the unit carpenter. In the evidence of WO2 J R Knight (page 137 of T docs) Warrant Officer 2 Knight stated `I handed to Private Measures vehicle No 108662 so that he could carry out his job as unit carpenter. I delivered the vehicle to Private Measures approximately 7 weeks before the time of the accident'.. This infers that Private Measures had the use of that vehicle on a regular and ongoing basis for a period of at least 7 weeks prior to the accident occurring. It can therefore be implied by Private Measures that he had the authority to use that vehicle as the Warrant Officer had clearly indicated that he could do so. Accordingly the unlawful use of the vehicle should not be raised as a bar to his obtaining the pension."

35. In McGrath the applicant acquired a jeep at the time of the Japanese surrender when there were celebrations involving the consumption of large amounts of alcohol in his unit, "discipline all but disappeared completely from his unit" and, because of his previous use of the jeep, he thought he did not need the permission of one of his superiors to undertake local errands using the jeep.

36. The circumstances in this matter are quite different to those in McGrath.. The applicant was not at liberty to take the vehicle out of the 2AOD area without express permission and indeed he had been told by WO2 Knight that the vehicle could only be used in the 2AOD area. The evidence before the Tribunal clearly shows that the applicant did not have any authority at any time to take the vehicle outside the 1ALSG area and his action in so doing was a serious breach of discipline.

37. The applicant referred the Tribunal to Repatriation Commission v Levi (1994) 33 ALD 79, where his Honour Justice Einfeld held in respect of section 9(3) of the Act:

"(i) The word `serious' in the expression `a serious default or wilful act' in s9(3)(a) of the Act only qualified `default' and not `wilful act'. In the expression `serious breach of discipline' in s9(3)(b)(i) the word `serious' required no technical definition or gloss.

...

(iv) Second, there was no substance in the argument since the disqualifying provisions were designed to exclude from pension service personnel who were in a serious or significant way the deliberate creators or knowing authors of their own injuries or diseases; people who contracted their conditions by actions outside their proper functions and activities as members of the forces; or who acted in disregard of their duties as service personnel. The killing of the nurse did not come within any of these categories."

38. It was submitted for the applicant that:

"The case of Levi relates to this matter of Measures in that Mr Levi did cause the death of a Vietnamese person and did take heroin whilst our client did cause the death of a child in South Vietnam and did use a motor vehicle outside of the base area without authorisation. These are similarities between the two cases and we submit that our client should also be granted the pension notwithstanding the provisions of Section 9(3). The applicant's conduct was such that it should not warrant him being deprived of the pension when his motivations are considered. The reasons for Mr Measures use of the motor vehicle are clearly set out in the statements tendered in this matter and show that it was an attempt to reconcile differences which had arisen with camp labourers."

39. In respect of Levi, the respondent submitted:

"In respect of Levi at the Federal Court level, it is submitted that when Justice Einfeld states at page 89, `As I read the Act, the parliament intended by s 9(3) to exclude from entitlement to a pension those service personnel who were in a serious or significant way the deliberate creators or knowing authors of their own injuries or diseases; people who contracted their conditions while quite outside their proper functions and activities as members of the Australian armed services; people who brought upon themselves their injuries or diseases by acting in such manifest disregard of their duties as service personnel as to take themselves outside an entitlement to compensation at the hands of Australian taxpayers for injurious events in their war service.' It is submitted that this is an authority to exclude entitlement to the Applicant, because he was not authorised in the use of a vehicle, for a personal mission. Further a mission, which involved deceit in the obtaining of the vehicle, and its release from the base and recklessness through the effects of alcohol and speeding, which led to the death of a boy. Mr Measures was operating outside of his proper function and activity as a member of the armed services.

The particulars of the above submission are located as follows in the evidence - the explanation for the Applicant's purpose in making unauthorised use of the vehicle is set out in his own evidence to the Court Martial at page 155 of the Tribunal documents. Linked with his passenger's evidence, that Private Polkinghorne at page 133 of the Tribunal documents it is apparent that the journey related to a personal liaison. Further the statement by WO1 GC McCaughey in the Writeway report indicates that the Applicant had handed in his leave pass, and was under the influence of alcohol, and was told not to proceed on further leave. Another witness statement JR Knight indicates an instruction to the Applicant against the use of the vehicle, although he had had previous authority to use it in his work as a carpenter. Also contained in the Writeway report is the Investigating Officers report dated 20 August 1968, which indicates that the Applicant deceived the guard at the West gate as to the purpose of the trip saying he had to drive to the airfield, when in fact he was driving to visit a female acquaintance apparently to apologise over an issue that arose earlier in the day, when drinking. There is also evidence that the vehicle was not defective and that the accident was a result of driver error. The record of the Applicant's attempting to escape from the scene of the accident is evidence of his wilfulness.

In addition it is submitted that the case of Levi can be further distinguished in that Mr Levi was not charged, or court martialled or jailed for any offence under Military law. The applicant however has been charged, Court Martialled and jailed, for the very events, which he now claims caused his current condition."

40. The Tribunal accepts the respondent's submissions that Levi can be distinguished in that Levi was not charged or court martialled whereas the applicant in this matter was, and was found guilty and gaoled.

41. The Tribunal is satisfied that the applicant's conduct on the evening of 11 August 1968 (when he made unauthorised use of an Army vehicle and drove that vehicle in a dangerous manner thereby killing a local Vietnamese boy) was a serious breach of discipline committed by the applicant.

42. As has already been indicated, the Tribunal accepts that the circumstances of the death of the Vietnamese boy on 11 August 1968 is a cause of the applicant's PTSD. However, following the Tribunal's findings above, pursuant to section 9(3) of the Act, the Tribunal finds that sections 9(1)(a) and 9(1)(b) have no application in this matter and therefore the applicant cannot succeed in a claim that his PTSD resulted from the motor vehicle accident on 11 August 1968.

43. No final submissions have been made for the applicant in respect of other service related stressful events which could give rise to the applicant's PTSD.

44. The Tribunal is mindful that Dr G Rees, consultant physician in psychiatry, first saw the applicant in June 1999 and has seen him on a number of occasions subsequently. Dr Rees records that the applicant told him that he was drunk at the time of driving the truck on 11 August 1968. The Tribunal notes that Dr Rees has based his diagnosis of the applicant's PTSD on the applicant's involvement in the motor vehicle accident on 11 August 1968. Dr Rees makes no mention of any other stressors raised with him by the applicant. The applicant, in a claimant report (PTSD) dated 28 August 2000 stated:

"I am not qualified to give the reason what actually caused the onset of PTSD. However in my opinion I believe that a number of incidents contributed to the onset of PTSD.

(1) the exposure of seeing severely wounded soldiers being brought to the field hospital near by.

(2) the fear of our camp being attacked.

(3) the broadly held suspicion that one or two of the Vietnamese who worked with me were Viet Cong. (I was fearful of this.)"

45. Furthermore, on 28 August 2002, the applicant stated:

"The incident relates to a statement in my court martial stating that I had been subject to an incident involving threats by ARVN soldiers earlier in my service and prior to the motor vehicle accident. This was a horrific experience where I thought that I was about to be killed.

I was on leave in company with a (sic) army friend Mike Polkinghorne, where we went to visit one of Vietnamese workers who was employed to work at 2AOD. I had visited the person on previous occasions without incident.

On this occasion after the visit, Mike Polkinhorne and myself whilst waiting for transport back to camp entered a bar. We had only been there a short time when four `cowboys', the nickname for South Vietnamese soldiers, (ARVN) entered the bar. After a very short time in the bar the soldiers started to harass us and laughing about our civilian clothing.

As we started to leave the bar the four in question surrounded us in a threatening manner. In an effort pass the soldiers Mike Polkinhorne pushed one out of the way which resulted in a fight starting. At this stage on of the ARVN drew his revolver pushed it hard under my chin. I cannot recall the exact words of the ARVN soldier but it was along the lines of get out of here and never come back. I was too scared to reply and backed out of the bar as I thought if I turned by back on them I would end up being shot."

46. The Tribunal notes that the VRB, in its reasons for decision dated 9 August 2001, set out details of the above incidents as follows:

"In the veteran's claim for this condition, he referred to several incidents which, in part, led to his symptoms. Those incidents were described at folios 56-58 of the Section 137 report. In that document Mr Measures described his observations of incoming wounded being brought to the hospital by helicopter and that `on most occasions I could see and hear the wounded'.

At the hearing, he said his quarters were about 100 metres from the hospital, and he could hear `screaming from the wounded'.. He also chose to visit the hospital on some occasions and observed soldiers on stretchers being carried into hospital.

Mr Measures also described his concern at working with a Vietnamese man who was though (sic) may be a member of the Viet Cong. He said he was always on guard with this person.

The third incident relates to what was thought to be an entry at night into the compound by Viet Cong, which set off the trip lighting. He said he was on gun duty in the bunker manning a machine gun without any ammunition and he described the efforts to try and set the ammunition which was locked in a container. In any event, there was not engagement with the enemy as no shorts were fired by anyone."

47. Further, the Tribunal notes and agrees with the VRB where it stated:

"In his recent claim, the subject of this review, Mr Measures again referred to those three incidents in a document headed Claimant Report - Post Traumatic Stress Disorder. (folio 75 refers)

In respect of those incidents, the Boards (sic) makes the comment that they cannot found the basis of a diagnosis of post traumatic stress disorder. That is because the diagnosis provided by Dr Rees is based solely on the effect on the veteran's emotional and behavioural status as a result of the motor vehicle accident."

48. For the sake of completeness, the Tribunal has considered whether any of the above events described by the applicant, satisfy the definition of "experiencing a severe stressor" (as set out in paragraph 14 above) such that it can be said that there is a reasonable hypothesis relating the veteran's PTSD to his relevant service.

49. The Tribunal is mindful that his Honour Justice Mansfield, in Stoddart v Repatriation Commission [2003] FCA 334 held:

"The word experiencing in the phrase experiencing a severe stressor imports a subjective element into the test of whether a person has experienced such a stressor.

The language of the definition of experiencing a severe stressor caters for a person experiencing, or being confronted with, an event involving the threat - of death, serious injury, or harm to physical integrity - if the event said to constitute that threat - judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event - is capable of and did subjectively convey the threat."

50. And in so doing has said:

"The adjectival clause `that involved actual or threat of death or serious injury...' explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the `threat' there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word `threat' a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of `sound medical-scientific evidence' in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted."

51. After careful consideration of all of the material before it, and following the judgment in Stoddart, the Tribunal is satisfied that none of the events described by the applicant, as set out above, satisfy the definition of "experiencing a severe stressor" in Instrument No 3 of 1999 and, as such, there is no reasonable hypothesis connecting the applicant's PTSD with the events described by him.

52. The Tribunal therefore finds that the applicant's PTSD is not war caused.

53. The Tribunal affirms the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member

Signed: Sarah Oliver

Associate

Hearing on the Papers

Date of Decision 16 September 2003

For the Applicant Mr Gladstone, Gladstone Solicitors

For the Respondent Mr Morison, Departmental Advocate