Hill and Repatriation Commission
[2003] AATA 1151
•17 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1151
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/5
VETERANS' APPEALS DIVISION ) Re KENNETH NORMAN HILL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date17 November 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions to reject claims by Kenneth Norman Hill for disability pension for psychoactive substance abuse or dependence, post traumatic stress disorder and electrocution.
................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – whether applicant experienced claimed stressor
Veterans’ Entitlements Act 1986: ss9, 120, 120A, 196B
REASONS FOR DECISION
Deputy President Don Muller 1.Kenneth Norman Hill, the Applicant, claims that he suffers from psychoactive substance abuse or dependence (alcohol abuse) and post traumatic stress disorder (PTSD). He claims that his alcohol abuse and PTSD are war-caused injuries or diseases within the meaning of that term in section 9 of the Veterans’ Entitlements Act 1986 (the Act), because they:
(a)Resulted from an occurrence that happened while he was rendering operational service; or
(b)Arose out of, or were attributable to his eligible war service; or
(c)Were contributed to in a material degree by, or were aggravated by, his eligible war service after he suffered or contracted them.
2.Mr. Hill also made a claim for a disability he called “electrocution”. He does not in fact suffer from any injury or disease called electrocution but he claims that during his service in the Royal Australian Navy, he was electrocuted, and that as a result of that experience he began to experience the beginnings of alcohol abuse and PTSD, which were later aggravated by an inability to obtain appropriate clinical management and also by experiencing a later stressful event.
3.Mr. Hill’s claim, which was lodged on 24 September 1997, was for a pension under s.13 of the Act in respect of the three conditions mentioned above namely, (1) PTSD; (2) alcohol abuse; and (3) electrocution. His claim was rejected by the Repatriation Commission on 14 January 1998, by the Veterans’ Review Board (the VRB) on 18 September 1998, and by the Administrative Appeals Tribunal on 20 November 2000 (differently constituted to this Tribunal).
4.The matter went on appeal to the Federal Court, firstly to a single Judge, and then to the Full Federal Court, Black CJ, Drummond and Kenny JJ. The Full Court ordered that the decision of the AAT made on 20 November 2000 be set aside to the extent that the Tribunal decided that Mr. Hill’s PTSD is not war-caused and his alcohol abuse is not war-caused, and, further ordered that the matter be remitted to the Tribunal for further hearing (with or without additional evidence).
5.On the re-hearing of this matter, Mr. Hill’s representative did not lead any further evidence from him. He suggested that the Tribunal refer to the materials and transcript of the previous hearing, plus the summary of Mr. Hill’s case contained in the Full Court’s reasons for judgment.
6.This Tribunal heard further evidence from two psychiatrists, Drs. Parker and Brown.
7.This Tribunal also heard extensive evidence led by the Respondent in relation to the event claimed by Mr. Hill to be the source of his stressful experience.
8.The Full Court’s reasons for judgment contain a summary of the factual background, the relevant legislation and the issues to be determined. For the purposes of this review I will adopt those parts of that summary that relate to Mr. Hill’s position.
FACTUAL BACKGROUND
9.Mr. Hill was seventeen years of age when he joined the Royal Australian Navy on 23 October 1965. He served until 19 March 1978. He had two periods of operational service, both aboard HMAS Melbourne, from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966. These periods of operational service constituted eligible war service, as defined in s.7 of the Act. He also rendered defence service (as defined in Part IV of the Act) from 7 December 1972 to 19 March 1978.
10.Mr. Hill joined the HMAS Melbourne on 5 February 1966. He had previously completed a three months’ training course. His position in the ship was that of ordinary seaman, electrical mechanic.
11.Mr. Hill started drinking in 1966 and his drinking became progressively worse. In his early drinking days he drank spirits but in the years 1969 to 1971 he developed a liking for beer and had stayed with beer ever since. Naval medical records show that alcoholism was provisionally diagnosed in 1974.
12.In making the claim, Mr. Hill relied on three incidents in his service career. He suffered electrocution on board HMAS Melbourne on 16 March 1966. The very next month, he witnessed an incident in which a man drowned when a Sea Venom aircraft sank in the ocean and, some years later, he was involved in responding to a riot in New Guinea.
ELECTROCUTION
13.Mr. Hill’s evidence before the Tribunal was that, on joining the Melbourne, he was allotted to the “Café Party”. This involved duties in the cafeteria, such as scrubbing tables, emptying plates, washing up and sweeping and mopping the deck. His evidence about the electrocution may be summarised in the following terms:
(a)On the night of the electrocution, he had been working in the cafeteria and the evening meal was served from 6.30pm. It continued to be served until approximately 9.30pm or 10.00pm as the squadrons were on board.
(b)Mr. Hill said that he had been assisting with emptying garbage bins down the chute into open waters. After returning to the cafeteria, he attempted to turn off a pedestal fan. The switch was located behind a hatch that had been opened. As he did so, he got an electric shock and another crew member had to knock him off with a broomstick. Mr. Hill recalled shaking violently and he believed that his grip had been frozen by the contraction.
(c)Mr. Hill said that he woke up the next day in the ship’s sick bay wondering where he was. When he awoke, he was tired and anxious as he did not know where he was. Mr. Hill said that he had a burn under his right arm. He thought that he was released from the sick bay on the morning following the electrocution. He was not given any advice or recommendations on his discharge and there was no follow-up.
(d)Mr. Hill said in giving his evidence that he returned to his normal duties in the Café Party but could not recall for what period. He was later moved to the foretop of the ship and worked on the weather decks of the Melbourne. The move occurred before the ship reached Singapore.
The electrocution did not occur when Mr. Hill was rendering eligible war service or defence service.
SEA VENOM INCIDENT
14.After the Melbourne left Singapore, Mr Hill was performing duties on the weather deck. He claims to have witnessed an incident involving a Sea Venom aircraft. He described the incident in the following terms:
“As part of my duties I was surveying an area of 2-deck which required repainting as determined by one of my superiors. Whilst I was in the vicinity of one of their after sponsons I was aware that there were aircraft landing and I heard what sounded like an aircraft come in to land and then what sounded like the arrester wire snap and I was so very close to one of the sponson doors – these sponsons are an annex platform out on the side of the ship below the flight deck level. They used to carry anti-aircraft guns in its previous life. That sponson was actually clear and there were no gun apparatus on that sponson and I ducked out the hatch onto the sponson, staying under the eve of the flight deck, if you like, in time to see the Sea Venom. It occurred to me that he thought he’d snapped something and he’d given it full power to take off from the deck to try and fly around again and work things out or maybe even fly to a shore base somewhere if he got an assessment of the damage. He’d attempted to whack on full power and he seemed to have done that. The next thing I know is that the roar of the engines and the aircraft appeared over the side of the flight deck and he was suspended by his arrester hook. He was just hanging there. The arrester hook snapped and the aircraft plummeted down into the water. By this stage they decided to stop the ship and for some minutes I saw the aircraft floating out to the side of – directly below where I was standing and I saw a person in there trying to punch his way out through the canopy. That’s been very disturbing to me. The aircraft sank. Went to the bottom of the South China Sea, I assume.”
In cross examination, Mr. Hill said that he first saw the Sea Venom hanging by its arrestor hook and saw the hook snap. He said that the HMAS Melbourne was put into reverse and the aircraft went alongside the ship. He said he could see a man in the aircraft trying to punch his way out of the cockpit; it was easy to see inside the canopy.
This event occurred when Mr. Hill was rendering eligible war service.
15.Mr. Hill’s evidence was that he believed that the pilot had died in the Sea Venom. When he was asked by his representative how he was affected by the incident at the time and what emotions he felt, Mr. Hill replied:
“Well, I really don’t know, I really don’t. No, I don’t know. It’s – I guess it was the confusion, a feeling of confusion. I could see it happening there, it wasn’t happening to you but it [was] happening to somebody and you couldn’t do anything about it.”
16.Mr. Hill gave evidence before the Tribunal that HMAS Melbourne proceeded to Vietnamese waters, although it did not dock in Vietnam but went on to Hong Kong. When he went on shore leave, he became very drunk for the first time in his life “… to drown memories” of “.. the electric shock incident, and secondly of seeing a bloke trapped inside a canopy and no way of helping him”.
NEW GUINEA INCIDENT
17.Mr. Hill was based in New Guinea in the years 1968-1969 and 1971-1972. One night in New Guinea, he was required to defend the Captain’s house during a riot that he regarded as a life-threatening situation. This incident did not occur while Mr. Hill was rendering eligible war service or defence service. It is not relevant in the context of these proceedings.
A FURTHER INCIDENT AT HMAS CERBERUS
18.Naval records, which were before the Tribunal, indicated that on 17 August 1966 Mr Hill was admitted to the infirmary after collapsing at HMAS Cerberus.. He gave a history of having fainted a few days before, and an outpatient record dated 26 August 1966 recorded a provisional diagnosis of hysteria. A subsequent examination by a psychiatrist noted that there was “no real psychiatric disability”.
19.Mr. Hill’s claim before the Tribunal was that his alcohol abuse and PTSD arose out of or were attributable to the Sea Venom incident; alternatively, from a combination of his electrocution followed by the Sea Venom incident, the latter contributing to a material degree and aggravating the effects of the former.
LEGISLATION
20.Provision is made in s.120 of the Act for the standard of proof to be applied by the Tribunal, in connection with the question whether a disease is a war-caused disease. Relevantly for this case, s120(1) and (3) provide:
“(1)Where a claim under Part II for a pension in respect of the incapacity from .. disease of a veteran .. relates to the operational service rendered by the veteran, the Commission shall determine.. that the disease was a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) in respect of the incapacity of a person from disease related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining;
..
(b)that the disease was a war-caused disease ..
… if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.”
Subsection 120(6) provides that nothing in the Act “shall be taken to impose” “any onus of proving any matter that is, or might be, relevant to the determination of the claim”.
21.Because Mr. Hill’s claim was lodged after 1 June 1994, s.120A applies to his claim: see s.120A(1).. Subsection 120A(3) relevantly provides that, for the purposes of s.120(3), a hypothesis connecting a disease contracted by a veteran with the circumstances of his particular service is reasonable only if there is in force a Statement of Principles (determined under ss 196B(2) or (11)) ”that uphold the hypothesis”. A Statement of Principles (SoP) is made by the Repatriation Medical Authority under s 196B of the Act in respect of particular kinds of injury, disease or death.
22.In support of his claim for a pension on account of his PTSD, Mr. Hill relied on SoP No. 15 of 1994 as amended by SoP No. 225 of 1995 (“the PTSD SoP”).. The PTSD SoP was made under s.196B(2) of the Act. Where a SoP is made under s196B(2), the SoP must set out the factors that must as a minimum exist, and which of those factors must be related to service, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of the relevant kind with the circumstances of that service.
23.According to clause 1 of the PTSD SoP, “the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting [PTSD] with the circumstances of [operational service]” are:
(a)“Experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)Experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)Inability to obtain appropriate clinical management for post traumatic stress disorder.”
24.The term “experiencing a stressor” is defined in clause 4 of the PTSD SoP as meaning:
(a)“The person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and
(b)The person’s response to that event involved intense fear, helplessness or horror.”
25.In support of his claim for alcohol abuse, Mr. Hill relied on SoP No. 5 of 1994 (the alcohol abuse SoP). According to clauses 1, 3 and 4 of the alcohol abuse SoP,
“1. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence with the circumstances of [operational] service, are:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or…
(b)..
(c)experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or....
(d)…
(e)inability to obtain appropriate clinical management for psychoactive substance abuse or dependence.”
3. The factors set out in paragraphs 1(c) to 1(e) apply only where:
(a)The person’s psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the psychoactive substance abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4. ‘stressful event’ means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
26.The hypothesis put forward on behalf of Mr. Hill is that his seeing the pilot unsuccessfully struggling to escape from the cockpit of the crashed Sea Venom either led to his suffering from PTSD and alcohol abuse, or led to the clinical worsening of PTSD and alcohol abuse that he had already suffered as a result of the electric shock he had suffered.
27.The Tribunal notes the following observations of the Full Court:
“52. Since the Commission did not dispute that Mr Hill was suffering from PTSD, the main issue before the Tribunal concerned the connection between Mr Hill’s PTSD and his service. Mr Hill’s position was that the material before the Tribunal raised a hypothesis that fitted cl 1 (a), (b), or (c) of the PTSD SoP because the material pointed to either his ‘experiencing a stressor’ (as defined in cl 4 of the PTSD SoP) prior to the clinical onset or worsening of PTSD, or to his inability to obtain appropriate clinical management for the condition. Given that the Tribunal’s rejection of the clinical worsening and clinical management hypotheses was unchallenged in this Court, the only possibility that fell for consideration by the primary judge was whether Mr Hill experienced a stressor prior to the clinical onset of PTSD. Before this hypothesis could warrant consideration under s 120(1) of the Act, the Tribunal had to be satisfied, amongst other things, that the material pointed to Mr Hill ‘witnessing’ an event that involved ‘actual or threatened death’, and that he responded with feelings involving ‘intense… helplessness or horror’.
61. The Tribunal was not turning its mind to cl 1 of the PTSD SoP and to ‘experiencing a stressor’. Rather, in [89] to [93], the Tribunal was considering whether the material before it pointed to the elements of ‘post traumatic stress disorder’ as defined in cl 4 of the PTSD SoP. This inquiry was not the correct one. The inquiry would have been relevant if there had been a dispute before the Tribunal as to whether or not Mr Hill was actually suffering from PTSD. As already noted, however, there was no such dispute (see [52]). As counsel for the Commission observed on the hearing of this appeal, the matter proceeded in the Tribunal on the basis that Mr Hill’s condition was not in issue.”
28.Consequently, the Tribunal has conducted this remitted review on the bases that:
(a)Mr. Hill does suffer from PTSD and alcohol abuse; and
(b)The only issues left to be determined are whether Mr. Hill experienced a stressor by witnessing the Sea Venom incident and whether that experience led to his current conditions of PTSD and alcohol abuse.
29.The Tribunal notes for the record that at the hearing of this review the Respondent did not concede that Mr. Hill suffers from PTSD.
30.During the first Tribunal hearing there was much comment, cross-examination and speculation as to why, if the Sea Venom incident was traumatic for Mr. Hill to the extent that it would cause him to suffer from a psychiatric illness for the rest of his life, he did not mention it in his claim in September 1997; he did not mention it during the course of his psychiatric assessment by Dr. Marinovich in November 1997; he did not mention it to anyone involved in the assessment of his claim until about half-way through his VRB hearing in September 1998 when the following exchange took place:
“MR PARK: So what was it about the Vietnam service and remember we are talking about a period of some – what, 10, 12 days in the first period and about the same in the second period – what was it in those two periods of say a fortnight or so that you think aggravated your condition?
MR HILL: They were working in two watches mainly, you know, sort of like four on four off, very little sleep, lots and lots of tension, each night the ship was darkened, we were flying aircraft off prior to … in the … we’d lost an aircraft over the side of HMAS Melbourne and ---
MR PARK: What do you mean, you lost it?
MR HILL: Came into land and the landing hook on the back of the plane bloody snapped and … shoot over the side and the pilot went to the bottom of the fucking ocean.
MR PARK: Mr Hill, can you try and just be civil in speaking to us?
MR HILL: Sorry.
…
MR PARK: Right. When was that loss of aircraft, Mr Hill?
MR. HILL: I don’t remember the date but it was on our way – we were doing flying exercises before we got into the zone…
MR PARK: Before or after the electrocution incident?
MR HILL: Before.
MR PARK: Before the electrocution incident?”
31.In the first Tribunal hearing Deputy President Forgie, who heard the matter, took the view that Mr. Hill’s response to the Sea Venom incident fell far short of the intensity needed to satisfy the SoP. She said:
“All of the material points to his having witnessed an event that involved actual and threatened death to those on board the Sea Venom.. It does not, however, point to Mr. Hill’s having a response that involved intense fear, helplessness, or horror. He described his reaction as a feeling of confusion and a feeling that he could not do anything about it. That may be a response of helplessness but is not one that could be described as “intense” as required by SoP 15 as amended by SoP 225. As the traumatic event must be both an event of a certain sort and leading to a person’s having the specified response; the event involving the Sea Venom does not, for Mr Hill, amount to a traumatic event to which he has been exposed.”
32.This Tribunal has had access to better quality evidence about the Sea Venom incident than that available to Deputy President Forgie. The new evidence consisted of statements and oral evidence from:
John Raymond DaCosta: the pilot of the Sea Venom in question.
Commodore Mulcare: who had an extensive naval career and was in fact serving on the HMAS Yarra which was astern of the Melbourne when the Sea Venom incident occurred.
The additional material also included:
Photographic stills from the movie taken of the Sea Venom when it got into difficulties.
Statements from various witnesses who gave evidence at the Board of Inquiry conducted on 29 April 1966 (the day after the incident).
33.John Raymond DaCosta identified and confirmed the material contained in the statement he made on 29 April 1966, the day after the incident. The statement read as follows:
“A normal approach was made for an arrested landing, the Observer Lieutenant Kennel, calling the I.A.S. in the normal Sea Venom deck landing manner. The last Airspeed call I heard from Lt. Kennell immediately before arrestor wire engagement was 117 knots.
The touchdown felt normal and the aircraft appeared to be lined up parallel to the centreline but slightly offset to Starboard.
A wire was engaged and initial retardation experienced but after what appeared to be approximately half wire pullout, retardation abruptly ceased and the aircraft rolled down the deck.
I immediately applied full power. I had no time to check the I.A.S. but as the aircraft left the Flight Deck and dropped the Port Wing, I realised that I did not have flying speed so called ‘Eject’ ‘Eject’.. As I attempted to level the wings, the Observer jettisoned the canopy and I had the impression that he ejected immediately afterwards. By this time I had succeeded in levelling the wings and ejected myself. I felt that the aircraft was just about to or had just struck the water as I ejected.
As I ejected I felt a sharp pain in the back and blow to my left foot.
Entry into the water took place feet first and very shortly after ejection and was quite violent, my face mask tearing off as I entered the water.
I inflated my Life Saving Waistcoat as I submerged and immediately came to the surface. I released my parachute harness and thought I was completely disentangled until the SAR helicopter appeared and the slipstream began to blow the parachute canopy away. I found myself being dragged by the parachute until I managed to untangle a single shroud line hooked about my neck and shoulder.
On first appearance of the SAR helicopter which was very soon after entry into the water, I disconnected my dinghy without inflating it and was picked up very shortly after clearing myself from the parachute.
At no time after ejection did I sight Lieutenant Kennell.”
Mr. DaCosta went on to add the following points:
· The time between applying full power and going over the end of the flight deck was only two or three seconds.
· The aircraft did not remain hooked to the ship.
· Although the Sea Venom had metallic wings, the fuselage was made of wood – it broke up immediately upon striking the water.
· The ship did not stop – it was doing about 20 knots – there were two other planes in the air which had to land.
· He heard the carrier go past him.
· It was normal to take a movie of all landings.
34.The Board of Inquiry material also contains a statement from then Lieutenant G de V Bessell-Browne, an observer in a helicopter which was hovering near the aircraft carrier at the time of the Sea Venom incident. The statement is as follows:
“I was the SAR Observer in Wessex 826 during recovery of Venoms at 1500. Lt. DaCosta’s aircraft made a normal approach and a good landing at approximately a three wire position. When the aircraft was above the Island I realised it was not going to stop and yelled ‘They’re over’.. The aircraft slewed a couple of times while running up the deck before going over the port bow. The canopy ejected when the aircraft was about half way down the ship’s side and one seat fired just prior to entry into the water. The second seat appeared to fire at about the same time as the major impact although it could have been fractionally sooner. The first seat to fire rose about 45’ – 50’ in the air and the parachute deployed and almost completely filled landing close ahead of the ship at the port bow. The second seat only rose about fifteen feet and I had the impression the parachute deployed but only partly filled. My recollection is not really clear but I believe the occupant landed in or in line with the splash made by the aircraft. The aircraft hit the water almost horizontal about 15 degree tail down with the nose pointing approximately thirty degrees starboard of the ship’s head. I am not really sure which seat fired first but I think it was the Pilot’s. The tail appeared to strike first and skidded along the water a short way before the major impact and break up and I believe the wing section tumbled at least once after impact.
As we ran in I saw the tail beams floating but did not see any sign apart from small pieces of wreckage of the remainder of the aircraft. During the run in I temporarily lost sight of the crew but as we commenced to come to the hover I saw one (Lt. DaCosta) floating with an inflated Mae West. I could see Lt. Kennell floating face down in the water, out of his seat, legs almost straight with his feet about eighteen inches apart. His parachute was submerged behind him and was open. As we came up the hover Lt. Kennell started to sink head first. At no time did I see him move or his legs kick. The transition to the hover had billowed Lt. DaCosta’s parachute and blown him into the ship’s wake. During the run in I had warned Leading Airman Bourke, who was wearing the double lift harness to get ready but on realising Lt. Kennell was sinking I told him to jump into the water to try and either get a hold of Lt. Kennell or get the winch line onto a parachute shroudline. By the time Leading Airman Bourke surfaced Lt. Kennell had disappeared. My last sight of him was sinking rapidly about fifteen to twenty feet below the surface. I believe he was unconscious throughout. At this stage his helmet rose to the surface about twenty feet from Leading Airman Bourke who was inflating his dinghy having been unable to see any signs of a survivor.
We then moved over to Lt. DaCosta who was bleeding from cuts on the face and not showing much sign of movement. He managed to grasp the strap and we winched him into the aircraft. After a short search of the area we winched Leading Airman Bourke into the aircraft and returned to the ship with Lt. DaCosta who was showing signs of injured his back and left leg.”
35.Commodore Mulcare gave evidence to the following effect:
· If Mr. Hill was where he said he was when the incident occurred – in the vicinity of an after sponson – he could not have seen the flight deck – nor could he have seen the plane go over the end of the flight deck.
· The Sea Venom hit the water about 150 feet ahead of the ship in line with the port bow side.
· It took less than 30 seconds for the ship to go past the debris which was floating in the water – and ended up astern of the ship.
36.Commodore Mulcare’s research also discovered that Mr. Hill was on HMAS Melbourne when the following incident occurred off Jervis Bay on 12 February 1966:
“24. During night flying the last aircraft to land on Gannet 858, caught the number six wire while the Pilot (A/Sub Lt. (SL)(p) A.J. Fyfe, RAN) was taking his own wave off, and crashed over the port side of the ship at 2038. The aircraft was suspended precariously by the wire and sponson, but the pilot and crew (Lt. (SL)(0) P.K. Coulson, RAN and LSUC Air T.R. Lindsay R.53631) were recovered unhurt. An unsuccessful attempt was made to recover the aircraft. A whip aerial was lost overboard and minor damage to a sponson was suffered. This incident has been fully reported in A25 286/51/66). Appendix D also refers.”
37.The Tribunal accepts that the versions of the Sea Venom incident given by Mr. DaCosta and Commodore Mulcare supported by contemporary eye witness accounts is more accurate than that given by Mr. Hill whose account is different in practically every aspect.
38.The Tribunal is satisfied beyond reasonable doubt that Mr. Hill did not see the Sea Venom incident. That is the reason why it did not assume much importance in the first twelve months after he made his claim and why he felt no intensity about it.
39.The two psychiatrists gave evidence to the following effect:
· It is perfectly normal for people to dream, or have nightmares, about events which have never happened to them;
· It is possible for a person to be disturbed by dreams of events which they have not actually experienced in their awake hours;
· It is possible for a person to be distressed by a relatively harmless incident if they in fact believe that the incident was more serious than it was.
· Mr. Hill’s actual memory is probably a compilation of his traumatic dreams and reality.
40.The Tribunal accepts that it is possible that currently Mr. Hill believes that he saw what he claims to have seen in relation to the Sea Venom incident. However, the Tribunal has no way of knowing when he came to that belief. One would expect that he would have retained the correct version of events for at least ten years after the event. It seems to be clear that he has confused the Sea Venom incident with the Gannet incident.
41.The hypothesis linking Mr. Hill’s PTSD and alcohol abuse with the Sea Venom incident is not reasonable. Neither the SoP for PTSD nor the SoP for alcohol abuse are satisfied because in Mr. Hill’s case he did not experience a stressor nor a stressful event during the Sea Venom incident and he certainly did not have a response involving intense fear, helplessness or horror, nor subjective symptoms of increased stress.
42.The decisions to reject claims for disability pension for psychoactive substance abuse or dependence, post traumatic stress disorder and electrocution are affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
Catherine O’Donovan, AssociateDate/s of Hearing 23 May 2003
Date of Decision 17 November 2003
Solicitor for the Applicant Pipers
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Australian Government Solicitor
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