Hill and Repatriation Commission
[2000] AATA 1011
•20 November 2000
CATCHWORDS – VETERANS' AFFAIRS – whether Post Traumatic Stress Disorder a war-caused or defence-caused disease – whether events outside eligible war service relevant – whether fact inconsistent with hypothesis proven beyond reasonable doubt – decision affirmed.
Veterans' Entitlements Act 1986 - ss. 5AB(1), 5AB(2), 5Q(1A), 7, 7(1), 9, 9(1), 13(1), 68(1), 70, 70(5), 120, 120(1), 120(3), 120(4), 120A, 120B, 196B(2), 196B(14),
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 117 CLR 564; (1993) 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17; (1987) 15 FCR 327
Reading and Repatriation Commission (unreported, AAT 20 September, 2000, Miss S A Forgie (Deputy President), Captain ET Keane (Member))
DECISION AND REASONS FOR DECISION [2000] AATA 1011
ADMINISTRATIVE APPEALS TRIBUNAL )
) D1998/19
VETERANS' APPEALS DIVISION )
Re: KENNETH NORMAN HILL
Applicant
And:
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 20 November, 2000
Place: Brisbane
Decision:The Tribunal affirms the decision of the respondent dated 14 January, 1998 and affirmed by a decision of the Veterans' Review Board dated 18 September, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 23 October, 1998, the applicant, Mr Kenneth Norman Hill, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") which was dated 14 January, 1998 and which was affirmed by a decision of the Veterans' Review Board dated 18 September, 1998. The delegate's decision had been to reject Mr Hill's claim for psychoactive substance abuse or dependence, post traumatic stress disorder ("PTSD") and electrocution.
At the hearing, Mr Hill was represented by his solicitor, Mr Piper, and the Commission by Mr Doube, an advocate in the Department of Veterans' Affairs. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a report of Dr Gormly dated 12 April, 1999, documents (including reports by Dr Lloyd dated 27 February, 1998, Dr Gibbon dated 27 February, 1998 and Dr Marinovich dated 9 October, 1997) sent by facsimile by Dr Gormly, a minute from Mr Gould of Telstra to Mr Hill dated 11 November, 1999, a minute from Mr Michael Rocca to Mr Hill dated 21 January, 2000, a chronology of events prepared by Mr Hill, an extract from H.M.A.S Melbourne 25 Years by Ross Gillett (Nautical Press, Sydney, Australia, 1980), a record of ships' movements in Vietnam, a transcript of the proceedings in the VRB, a letter dated 11 October, 1999 to the Department of Veterans' Affairs from Mr Straczek, Senior Naval Historical Officer and pages 115-152 from a book entitled Sea Fury, Firefly and Sea Venom in Australian Service by Stewart Wilson. Mr Hill gave evidence in support of his case together with Dr Gormly.
THE ISSUES
Mr Doube accepted that Mr Hill's alcohol abuse would be related to PTSD if the latter were established. The issues in this case were whether any PTSD suffered by Mr Hill arose out of, or was attributable to, his eligible war service.
BACKGROUND
On the basis of the material in the T documents and the evidence of Mr Hill, I am satisfied that Mr Hill left school at the end of 1964 when he was 16. He then worked as a trainee sales person with a firm supplying drawing office supplies to architects and draftspersons. When he was 17 years of age, he joined the Royal Australian Navy ("Navy") on 23 October, 1965. He served until 19 March, 1978. His periods of service from 25 April, 1966 until 6 May, 1966 and from 30 May, 1966 until 9 June, 1966 were operational service, and so eligible war service, within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). His service from 7 December, 1972 until 19 March, 1978 was defence service within the meaning of that Act.
Mr Hill was married in December, 1975 but was divorced in approximately 1995. There were no children of the marriage. He worked with Telstra but, after medical restrictions limited his ability to perform his job, his employment was terminated on the grounds of medical capacity (Exhibits C and D).
THE EVIDENCE
Mr Hill based his case on three incidents in his career: electrocution while on board the Melbourne on 16 March, 1966; witnessing the inability of a pilot to escape from the cockpit of a Sea Venom plane as it sank in the ocean in 1966; and incidents in New Guinea. I will set out his evidence in relation to each of those matters.
Electrocution – Mr Hill's evidence at the hearing
After a three month training course, Mr Hill joined the HMAS Melbourne ("the Melbourne") on 5 February, 1966. He said that he was allotted to the "Café Party". As a recruit who had just finished recruit school, he was billeted about the ship to perform menial tasks. He did not believe that he was being trained for any particular trade but he did not recall. Theoretically, he said, he was in training all the time he was on board the Melbourne.
Mr Hill said that meal times were staggered to cater for the shift work performed by the crew. He thought that there were 900 people on board the Melbourne and that 700 people went through the cafeteria when he was working. While he was on board, the ship was joined by two squadrons of Sea Venoms and one squadron of Wessex helicopters. Those squadrons had flown from their base at HMAS Albatross in New South Wales. When the air squadrons came on board, there were some 1,300 people on board and the numbers through the cafeteria rose accordingly. Mr Hill believed that the extra people meant that it took longer to process those people through the cafeteria.
His duties in the cafeteria included scrubbing tables, emptying plates, washing up and sweeping and mopping the deck. 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. On 16 March, 1966, Mr Hill said, the Melbourne was in the waters between Manus Island and Singapore.
In cross-examination, he agreed with Mr Doube that the Melbourne had arrived in Singapore on 22 April, 1966. He also agreed that the extract from H.M.A.S Melbourne 25 Years by Ross Gillett showed the Melbourne as docked in Sydney for self maintenance from 9 March to 24 March, 1966. He could not explain that except to say that the author had "made a quid out of it" (transcript page 65) and that the onus was not on him to change his recollection to fit the book.
In giving his evidence, 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.
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. He was "… hit … with some sort of drug or something", he said. 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.
In cross-examination, Mr Hill said that he had not said that he was unconscious after receiving the electric shock. He was saying that he could not comprehensively recall anything that was going on around him at the time. He remembered nothing between reaching behind the door and waking up in the sick bay.
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.
Electrocution – medical evidence
The Daily Medical Record for 16 March, 1966 records Mr Hill as having suffered an electric shock and notes that:
"At approx 0950 attempted to close a hatch between 4E and 4F in order to clean the deck around it. On touching a clip of the hatch felt an electric shock go through the body causing him to collapse. O/E-. Pale sweaty, fully conscious and not c/o any pain.
BP. 145/70 T. 98°F. P 80.R.22
C.O.S. - N.A.D. Lungs clear.
C.N.S. – N.A.D.
Has small linear burns forearm; L. side of chest and medial side L. Biceps. RX. To be observed in S.B." (T documents, page 32)
In cross-examination, Mr Hill said that he thought that the incident had occurred in the evening. He could only explain its having been recorded as having occurred in the morning on the basis that the record had been written after the incident. He was fully conscious the next morning and that made him think that was the time at which the paperwork had been recorded.
New Guinea – Mr Hill's evidence at the hearing
Mr Hill said that he was based in New Guinea on two occasions during his service in 1968/69 and 1971/72. Neither period occurred during operational service or defence service. Initially, he manned the transmitting station and also acted as relief personnel on patrol boats as he had training in both radar and radio. One night, he said:
"Just prior to New Guinea obtaining independence they – the New Guinea sailors took it upon themselves to bung on a bit of a riot one night and they had armed themselves with sticks and home made spears and lots of rocks and they stormed the Captain's house and I was part of a group of people who were called upon at very short notice to go to the armoury, arm ourselves and get up to surround the – and provide a cordon around the Captain's house to ward the implied threat. … We were outnumbered probably about, I don't know, 6 or 8 to 1, it was in the dark which gave them the distinct advantage and there was lots of yelling and they were throwing rocks on the roof, they were smashing windows, they were hurling sticks and - very difficult to see under the circumstances." (transcript, page 41)
Mr Hill said that he realised at the time that it was a life-threatening situation.
Sea Venom – Mr Hill's evidence at the hearing
Mr Hill said that his work on the weather decks of the Melbourne involved his chipping and painting, preparing boats for rescue operations and general ship's husbandry work. He believed that the Melbourne arrived in Singapore in late April, 1966 while he was undertaking these duties.
After the Melbourne left Singapore, Mr Hill said that he was repainting an area of 2 deck. He said
"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 was 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." (transcript, page 35)
Mr Hill said that he had moved to the outer edge of the sponson and had a clear view of the ocean both fore and aft. He believed that the pilot had died in the Sea Venom. Mr Hill believed that other crew members, including the fire crews, would have witnessed the accident. He was not aware of any attempt by the senior officers on the Melbourne to contact those who had witnessed it. When asked by Mr Piper 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 as (sic) happening to somebody and you couldn't do anything about it." (transcript, page 115)
In cross-examination, Mr Hill said that he first saw the Sea Venom hanging by its arrester hook and saw the hook pressed and snapped. The aircraft went down into the water and floated away. The Melbourne was put into reverse and the aircraft was alongside. 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. He was not aware that there had been two men in the aircraft and could not explain how one could escape. He disagreed with the account of the accident given by Mr Straczek (see paragraph 29 below).
In giving evidence, Mr Hill said that the Melbourne then proceeded to Vietnamese waters. It did not dock as it was involved in escort duties and, he believed, flying aircraft sorties. He suspected it was also performing scouting duties for the HMAS Sydney. The ship did not go in view of Vietnam on that occasion but went on to Hong Kong. He went on shore leave and, for the first time in his life, he became very drunk "… to drown memories" of "… the electric shock incident, and secondly of seeing a bloke trapped inside a canopy and no way of helping him." (transcript, page 37). In cross-examination, Mr Hill agreed with Mr Doube that it is normal for sailors, who are in port after being at sea for a period, to consume large quantities of alcohol.
In cross-examination, Mr Hill said that he had not mentioned the Sea Venom incident when applying to the Commission (T documents, pages 56-68). He said that he had not done so on the advice of his then advocate. His advocate had believed that the electric shock was sufficient and had filled out the claim for him. Later in cross-examination, Mr Hill said that he was not surprised that his advocate had not mentioned it prior to the hearing at the VRB as he had not known about it (transcript, page 100).
He agreed also that Dr Marinovich's report does not mention the Sea Venom incident. Mr Hill said that he did not mention it as his advocate "… pushed the barrow of the electric shock incident." (transcript, page 98) He had mentioned other incidents, such as that on Manus Island, as his life had been in possible jeopardy. Dr Marinovich never prompted him about the Sea Venom incident but rather concentrated on his feelings. He asked him, Mr Hill said, to go through a brief chronology and seemed very keen to pursue the matter of electric shock. When it was suggested to him that Dr Lloyd does not mention the Sea Venom incident either, Mr Hill said that he "… believe[d] that the significant event was the electric shock. Anything that has aggravated the results of that electric shock since have just been additive." (transcript, pages 111-112)
Sea Venom - Mr Hill's evidence at the VRB
Mr Hill agreed that his advocate had never mentioned the Sea Venom incident to the VRB prior to its hearing and, in particular, had not mentioned it in his letter of 23 January, 1998 (T documents, pages 11-13). The first occasion on which he mentioned it was at the VRB's hearing on 18 September, 1998 (Exhibit 4). In answering a question about what had happened in his two periods of operational service to aggravate his condition, Mr Hill mentioned the tension that was felt on the Melbourne as they were working in two watches and they had lost an aircraft over the side. When asked what he meant by "lost it", he replied that it had come into land and the landing hook on the back of the plane had snapped. The aircraft shot over the side and the pilot went to the bottom of the ocean. Mr Hill thought that the incident had happened before the Melbourne got into the zone and before the electrocution incident. He did not elaborate on the incident further and did not add any details about it when asked what else he would like to tell the VRB (Exhibit 4, page 8).
Sea Venom - the aircraft and the loss on 28 April, 1966
In Sea Fury, Firefly and Sea Venom, Stewart Wilson set out the history of De Havilland's Sea Venom aircraft. That aircraft was developed as an interim replacement for the Royal Air Force's Vampire fighter-bombers. This followed delays in the introduction of the Hawker Hunter and the Supermarine Swift. The design of the Sea Venom was based on the Vampire but was a new design in many ways. The first flight of the prototype of the Sea Venom took place in September, 1943 and its production concluded in 1961.
In 1951, Australia ordered 39 Sea Venoms based on the FAW.21 model developed by Hawker De Havilland. They were two seater aircraft accommodating a pilot and a radar operator/navigator sitting to the right of, and slightly behind, the pilot. Those 39 were delivered between 1955 and 1956 and were redesignated as FAW.53. Although the FAW.21 had been improved in relation to its predecessor, the FAW. 20, by the introduction of ejection seats (page 126), the author writes of two deaths that occurred before the introduction of ejection seats:
"WZ933, 8 August 1956: Crashed into sea after being catapulted off HMAS Melbourne, both crew killed. This was before the RAN's Sea Venoms were fitted with ejection seats. There was a known roll control problem with the Sea Venom immediately after take-off." (page 137)
The specifications for the FAW. 53 describe the seats in the Sea Venom as "two Martin Baker Mk. 4A ejection seats" and the cockpit canopy as a "Jettisonable (by cartridge) rear hinging cockpit canopy" (page 121). The canopy hatch jettison handle is shown as item 13 in Figure 5 showing the controls in the Sea Venom cockpit. Ejection seats would appear to have been fitted to the Sea Venom that crashed in 1966:
"WZ900, 28 April, 1966; Landing accident aboard Melbourne in Philippine Sea. Aircraft caught wire but the knuckle broke; insufficient power to go around so crew ejected; aircraft crashed into sea, observer killed." (page 138)
Mr Straczek from the Department of Defence, Naval History Directorate, reported that:
"A listing of naval aviation incidents compiled by a former naval aviator states that the aircraft made a good approach and engaged the number two arrester wire on landing. However, the port knuckle parted and the pilot applied full power in an attempt to overshoot the flight deck, but the aircraft crashed over the side. Both aircrew ejected at sea level. The pilot, Lieutenant (P) J.R. Da Costa RAN, was rescued by helicopter. The observer, Lieutenant (O) E.G. Kennell RAN, disappeared and his body was not recovered.
This accident would be recorded in the ships (sic) log and monthly Reports of Proceedings. Unfortunately, recent attempts to locate the then Department of the Navy file on the accident have been unsuccessful." (Exhibit 5)
Incident at HMAS Cerberus – 17 August, 1966
Clinical notes record that Mr Hill was admitted on 17 August, 1966:
"Brought into ward from wet canteen – apparently was drinking – had 4 beers then collapsed on deck. Lay there several minutes motionless then started 'shaking' all over.
No frothing, no micturition, defaecation, clonus or tonus.
Colour ü
History of 'fainting' while undergoing punishment 5/7 ago – thought then to be due to unaccustomed exercise.
At that time was a little distressed as was doing 4 days 'chook' and wanted weekend leave to go to Sydney to get himself engaged. Was somewhat unhappy at the forcable retention here. According to his friend (Eye witness) has behaved normally since until tonight.
O/E Lying on back, not responding to stimuli. Resp. shallow and rapid.
Course tremor of both arms – flaccid.
Pupils E.C.C. react to light.
Reflexes R = L
Plantars ¯ ¯
+ +
SA
+ +
Tone – R = L – flaccid.
No co-operation.
P.R. 96/min. B.P. 140/40
H.S. ü
Chest now clear.
Abdomen – soft – no masses.
Later complained of feeling cold.
Trying to get up and leave etc.
R/I.M. Paraldehyde 10 m.l. given." (T documents, page 34)
An out-patient record dated 26 August, 1966 reads:
"Admitted to 'F' Ward 17-8-66 from the wet canteen where he had about 4 beers and had fallen to the deck and lay there, shaking all over. His leave plans had been upset. A P.D. of hysteria was made and he was discharged. …" (T documents, page 35)
He was referred for examination by a psychiatrist and a further record of the same date noted that there was "No real psychiatric disability" (T documents, page 35). The episode was regarded as hysterical.
In giving evidence, Mr Hill said that he recalled the incident but his only recollection was waking up in hospital and not knowing why he was there. He recalled breaking up with a childhood sweetheart at the time. They had planned to go to Tasmania during his leave and that had been ruined. He had never reacted in a similar manner before.
Life outside the RAN - Mr Hill
Before he joined the Navy, Mr Hill said, he would only drink on the odd occasion when he had a glass of beer with his mother. When he returned to HMAS Cerberus ("Cerberus") in 1966 or 1967 after his first sea voyage on the Melbourne, Mr Hill said that he and a group of friends would "… get together and have a big long session at a pub somewhere in Melbourne." (transcript, page 42). That occurred every second weekend, he thought. He thought that his drinking became progressively worse. He "never thought about it too much" but he found it helped him to sleep and, when he got the opportunity, he would drink (transcript, page 42). He would drink when he had the opportunity. That would not be daily if he were on board ship as beer issues were in the captain's discretion and not a regular event. When he was posted to shore stations, he would drink if he was not on duty and the opportunity arose. He would say that, when he was not on board a ship, he drank daily. In his earlier days, Mr Hill said, he drank spirits but, in the years 1969 to 1971, developed a liking for beer and has stayed with that ever since.
Mr Hill believed that his drinking caused him to be sent home from Indonesia in 1973 or 1974. He had been working on an aid project and the remainder of the team stayed much longer. When he returned to HMAS Penguin ("Penguin") after returning from Indonesia, he believed that he was kept in a medical ward for two weeks while he was kept under observation for alcoholism. He "dried out" (transcript, page 43). Before entering the medical ward, he could not recall the sorts of quantities of beer that he was consuming at that point but he was having enough to put him to sleep. After leaving the medical ward, Mr Hill recalled, he would start drinking about 4.30pm and drink beer until the evening meal was served. He would then have a shower, get changed and return to the mess.
When he left the Navy, Mr Hill said, he obtained a position with Darwin Communications Services as a technician. He installed telephone cabling in the commercial buildings and repaired electronic equipment. His work with that firm continued for 11 months until he obtained a position with Telstra. After a six week training course, Mr Hill was employed by Telstra for almost 22 years. At the conclusion of his employment, he was a storeman. He felt that he was erratic at that time.
During his employment with Telstra, he did "lots of bush time", as he called it. During that time, he would drink very little but, when he returned to Darwin, would have "… a powerful thirst and a big heavy session …[was] not out of the ordinary" (transcript, page 46). When he was in town, his drinking was quite regular. He drank about 18 cans of beer a day. His consumption peaked at a carton, or 24 cans, of beer each day. That occurred when he was absent from work for a five month period in 1997. He thought that it occurred because he "was just stressing out" (transcript, page 47).
Mr Hill said that he experiences bouts of shaking in various parts of his body on a daily basis. The severity varies and depends upon what he is doing at the time. If, for example, he were to dig holes in his garden, he would last for 10 minutes before he would shake "the handle off the shovel" (transcript, pages 45-46). As a consequence, he does things in very small bouts these days and cannot engage in prolonged physical activity. He said that the episodes of shaking had occurred since 1966 but had become worse in 1997. His shaking made it impossible for him to carry out intricate soldering of very small components when he was working as a radio technician.
Mr Hill said that he still experiences flashbacks to the Sea Venom incident. He said that he does not talk about it except at proceedings in relation to his claim. On several occasions he has been with ex Naval mates and has chosen not to talk about it. They tend to relive the good times rather than the bad. In cross-examination, Mr Hill said that sometimes his flashbacks occur in the middle of the night and at others when he is watching a movie. Something similar occurs in a movie and he "… just slip[s] back to it." (transcript, page 95).
When asked about how he related to people, he said:
"People that I've just been introduced to or whatever I take them at face value until I've had a time to evaluate opinion, but people I've taking (sic) a disliking to on our first meeting I will give them the long arm treatment and I would steer clear of them in some instances." (transcript, page 50)
Mr Hill said that he did not set out to develop friendships with people who are not already his friends but continued:
"… two of my current interests are Secretary of the Darwin Bowls Club and naturally I have to meet people and that involves people from interstate and some instances from overseas and certainly from territory wide, in the bow[l]ing sphere of things. And the other hat that I tend to wear from time to time is the Treasurer of the Darwin RSL sub-branch. Again, I do get involved with people but not on a large scale. What I'm really saying is by the nature of those two positions I am forced to meet people that I then apply my sort of judgmental rules on. If I dislike them at first meeting they will just have to live with that." (transcript, page 51)
He now shares his unit with a female flat mate and has done so "On and off for 5 years …" (transcript, page 118). By "on and off" he meant that sometimes he shares with her for 12 months and sometimes for 6. He might take holidays and then they would drift back again. The longest period for which he has not had a flat mate over the past six years is 3 to 4 weeks. In the past six years, he has had approximately 5 flat mates. A couple of those people have stayed over 12 months and the shortest one overnight. He has a friend who conducts a business in Indonesia. He stays with him for 2 weeks or maybe a month and then moves on. When asked whether he and his flat mates were quite content in the unit, Mr Hill replied: "Yes, we sort of live around each other." (transcript, page 119)
Mr Hill said that he had played soccer weekly while he had been in the Navy and based in Victoria. He had played in a local competition and had also played inter-service soccer. After he had returned from his operational service, Mr Hill did not resume playing soccer. He played golf for 28 years but gave it away when he injured his shoulder. Since then, he has played lawn bowls. He is currently Secretary of the lawn bowls club and has been its President. For most of the time, he said, he has been casually involved with the committee of the club. He goes to the club on a daily basis where he sees the greenkeeper, bar manager and, if he is there, the chairman and others if they are about. Mr Hill clears the mail box and talks to the bar manager about paying the bills and the like.
Mr Hill is the treasurer of his sub branch of the RSL. He meets two members of the executive committee each Saturday and on one other day of the week and together they form the finance committee. He relates well to both those other members as well as to those he meets at the bowls club.
Mr Hill likes to go fishing and, until he found he was unable to launch and retrieve his boat, did so until 12 months ago. He used to fish with friends and went mostly around the harbour.
Mr Hill said that his sleeping patterns are totally irregular. He is averaging 5 or 6 hours each night and it is very rare that he sleeps right through. Once he gets to sleep, he sleeps for about 4 to 41/2 hours. He wakes up for various reasons: a full bladder, thinks he has heard a noise or has a flashback. If he has consumed enough beer, he is able to fall asleep quite easily but stays awake for over an hour if he has not.
When he had been undertaking shift work at Telstra, Mr Hill said, he had been hauled over the coals for an outburst. That had been just one occasion and people he worked with were always a bit wary of him. He would become irritable over what seemed to be trivial things but it depended upon how churned up he felt at the time. He could respond to those who irritated him with verbal abuse.
Mr Hill said that he has also had difficulties in concentrating. He has noticed those difficulties particularly since 1997 with the onset of the shaking. Later in giving evidence Mr Hill said that he was able to concentrate when watching movies. He was asked why he could not concentrate on reading and said:
"Yes, but most of that is because I'm committed to wearing reading glasses nowadays and I just sort of – I have a problem with hanging onto a book for an extended period of time and I do shake and it becomes an awkward thing to do, to read a book, whereas you can sit in a chair and watch TV or you can sit at a computer and you can wiggle a mouse but reading a book is a bit of an event, nowadays." (transcript, page 122)
He said that he revisits the Sea Venom incident and the electrocution if he sees similar things on the television. Other than that, he has successfully blanked them out. He did revisit the electrocution incident in 1973 when one of the people working under him had an electric shock. That person was not hospitalised but Mr Hill talked to him and that was the only time that he talked to another person about that incident. In cross-examination, Mr Hill was asked how he had successfully blotted out the electrocution. He replied that:
"How does anybody achieve anything mentally. How does anybody achieve in sport. You set your mind to do it. You set yourself a goal and you achieve it or you fail. That is – I don't know – I'm not particularly qualified to pass opinion on how anybody controls their mind." (transcript, page 96)
He said that he was able to block it out of his mind "For a long, long time until …[he] started doing paperwork with your people, yes." (transcript, page 96) When asked why he had not done the same thing with the Sea Venom incident, Mr Hill replied:
"I believe it's because I wasn't particularly at risk myself. It wasn't a personal issue. I was an innocent bystander in many respects. I was there to witness somebody else's helplessness in a threatening situation." (transcript, page 96)
Mr Hill confirmed in cross-examination that he experienced flashbacks to the Sea Venom incident and finds them distressing. He said, however, that he had "no real reason" to block it out of his mind:
"Because it was not me that was being threatened at the time - - - … As I stated earlier, they are remembrances and I – they were not threatening to my life. I was a witness to somebody else in a distressful situation and that picture lives in my mind and I cannot get - can't get rid of that." (transcript, pages 96-97)
Later in giving evidence, Mr Hill said that he experiences flashbacks about three times each month. The flashback is about the Sea Venom going over the side of the Melbourne. He wakes up after the aircraft hits the water. Mr Hill said that he experiences a similar thing when he is watching a movie during the day. It has happened three times during the last year.
Medical evidence – Dr Gormly
Dr Alan Gormly is a medical practitioner who has undertaken some post graduate studies in occupational medicine, has experience in general practice and hospital based general medicine and currently works for Health Services Australia. His work is focused on occupational health assessments. He does not have any formal psychiatric qualifications but sees a number of people who suffer from PTSD and has been required "… to verify … a diagnosis within broad diagnostic criteria and assess the severity of the disorder in terms of an individual's impairment and their general capacity to work as a rule." (transcript, page 75). The majority of his work is based on assessment of a person's current and future level of functioning and particularly in relation to his or her capacity to work. The question of causation and aetiology are relevant but not critical to the assessment process.
Dr Gormly examined Mr Hill on one occasion on 31 March, 1999 and had regard to previous report, dated 27 February, 1998, prepared by his predecessor in the position, Dr Eric Lloyd and to that prepared by Dr Marinovich dated 25 November, 1997. The criteria to which he referred are generally those in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") that are consistent with those in the Statements of Principle under the Act.
In Dr Gormly's opinion, the electric shock incident would be an event that would meet the diagnostic criteria of a traumatic event and so too would the Sea Venom incident. Dr Gormly did not question Mr Hill about each of the criteria founding a diagnosis of PTSD but relied instead on the assessments made by others that he met them. There was no mention in those notes of the Sea Venom incident. He did, however, obtain a history that Mr Hill was suffering from continued symptoms of general anxiety, poor concentration and a lot of stress intolerance, all of which are part of the range of symptoms associated with PTSD. Dr Gormly said that he did not dispute the diagnosis of PTSD previously made and found Mr Hill's presentation consistent with that diagnosis.
In Dr Gormly's opinion, a second traumatic event following closely on the first would have magnified, or reinforced, the severity of Mr Hill's condition. It would have led to a clinical worsening of the condition. Furthermore, the second incident could well have precipitated the disorder in its own right. PTSD can have an immediate onset or it may be delayed for several months or even years.
With regard to Mr Hill's collapse at Cerberus, Dr Gormly said that it could be consistent with an acute anxiety state with conversion symptoms but it was difficult to be precise. Anxiety, he said, is much higher in persons with PTSD and so it is much more likely that this type of event would occur with someone suffering from PTSD.
Dr Gormly was unable to comment upon Mr Hill's tremor. He understood that Mr Hill was to be seen by a specialist neurologist but he had not seen the outcome of that. It could be an alcohol related tremor or related to anxiety or could be unrelated to PTSD.
With regard to treatment, Dr Gormly said that it is generally believed that earlier medical intervention will achieve a more favourable long term outcome. Treatment of a well established PTSD is generally less successful. Counselling need not be immediate but it should be offered within a few weeks of a traumatic event. His preferred treatment of PTSD is to offer counselling (or critical incident debriefing) on a voluntary basis and to outline the benefits of that counselling.
In his report dated 12 April, 1999, Dr Gormly reported that Mr Hill's longstanding PTSD and well-entrenched dependence on alcohol would mean that his capacity to perform his normal work would be adversely affected. His potential to resume any full-time gainful employment was negligible. (Exhibit A)
Medical evidence – Dr Lloyd
Dr Lloyd's report, to which Dr Gormly had reference, was dated 27 February, 1998. He reported that Mr Hill had been feeling unwell for a number of years with symptoms of intrusive thoughts, anxiety and tension, insomnia, irritability and social withdrawal as well as drinking alcohol excessively. Psychiatric assessment in 1997, Dr Lloyd wrote, gave a diagnosis of PTSD arising out of his naval service. Mr Hill was electrocuted in 1966 on the Melbourne and, in Dr Lloyd's view, this was the precipitating factor but other stressful events contributed. Dr Lloyd wrote that Mr Hill drank to deaden the symptoms but his consumption got out of control and resulted in liver damage. He noted that Mr Hill had seen a psychiatrist for assessment but had not received any psychiatric treatment. Dr Lloyd considered Mr Hill's prognosis uncertain and recommended changes to his work.
Medical evidence – Dr Giblin
Dr Giblin wrote to Telstra on 17 February, 1998 regarding Mr Hill's returning to work on a graduated return to work programme. He referred to his service in the Navy, alcoholism, the electrocution accident and his seeing Dr Marinovich. (Exhibit B)
Medical evidence - Dr Marinovich
Dr Marinovich wrote a report to Dr Giblin on 9 October, 1997:
"… In my view, this man does, indeed, have post-traumatic stress disorder, arising out of his war service. The electrocution he suffered on board HMAS Melbourne, while going to Vietnam, was probably the precipitating factor. It has been compounded by other experiences he had, especially a riot in the depot in Papua New Guinea where the local Papua New Guineans were threatening to kill all the white fellows.
Like so many of these veterans, he resorts to alcohol as an attempt to try to treat his underlying disorder. I suspect he is alcohol sensitive and I note with interest that his mother died of cirrhosis (probably alcohol related) at the age of 48.
At present, he is not particularly motivated to do anything about his situation and only really presented because Ray Duthie, the advocate, has pushed him. I have, therefore, arranged to have his liver function tests done. If they are abnormal, then I have suggested he should come back for treatment, especially in the light of the family history, lest he go the same way as his mother. Equally, if the test is abnormal, it is more likely to help motivate him into accepting help. At present, he wants to think about it and will wait until the liver function tests come back, and make his decision after that. …" (Exhibit B)
LEGISLATIVE BACKGROUND
Section 13(1) of the Act provides that, subject to the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran if the veteran's death was war-caused. The amount of that pension and the terms under which it is payable are determined by the Act.
Provisions relevant to a consideration of whether the conditions are war-caused
A veteran's disease of injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in s. 9. In so far this case is concerned, only s. 9(1)(b) is relevant. It provides that:
"…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 have been war-caused disease if:
(a) …
(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; …"
The expression "eligible war service" is defined in s. 7 of the Act. For the purposes of this case, it is sufficient to note that s. 7(1)(a) provides that a person who has rendered operational service is taken to have rendered eligible war service while he or she was rendering operational service. There is no question in this case that, as a member of Australia's Defence Force, Mr Hill rendered operational service, and so eligible war service, while he rendered continuous full-time service outside Australia from 25 April, 1966 until 6 May, 1966 and from 30 May, 1966 until 9 June, 1966. That is the effect of s. 7(1) of the Act. Mr Hill's service in the Navy does not otherwise come within the meaning of "eligible war service" in s. 7.
The standard of proof which must be used in determining whether or not a veteran's death is taken to be war-caused is set out in s. 120. That section sets out two standards. As Mr Hill had operational service, that in s. 120(1) is relevant. It provides:
"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."
Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the death was war-caused. It provides:
"In applying subsection (1) ... 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."
Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:
"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) ...;
(b)...
that upholds the hypothesis." (s. 120A(3))
Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SoP under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.
The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:
"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." (s. 196B(2))
Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b)it arose out of, or was attributable to that service;"
"Sound medical evidence" has the meaning given in s. 5AB(2)
(s. 5AB(1)):
"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."
The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:
"The position may be summarised as follows:
(1) First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (page 215)
In relation to the first step, their Honours had earlier said:
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.
In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)
The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission (1998) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission and Byrnes v Repatriation Commission, his Honour concluded:
"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)since (1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course which must be followed in a cases involving a SoP. It said:
"… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (pages 159-160)
Provisions relevant to a consideration of whether the conditions are defence-caused
A veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in s. 70. In so far this case is concerned, only ss. 70(5)(a) and (b) are relevant. They provide that:
"For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member; …"
The expression "defence service" is defined in ss. 5Q(1A) and 68(1). As Mr Hill has continuous full-time service rendered on or after 7 December, 1972 and as he meets the requirements of paragraph (b) of the definition, he has defence service from 7 December, 1972 until 19 March, 1978.
In so far as Mr Hill's claim relates to his period of defence service, ss. 120(4) provides:
"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."
The meaning of the expression "reasonably satisfied" has been considered by the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537. After considering the authorities, Beaumont J concluded that the Tribunal:
"… should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87. " (page 547)
Section 120(4) must be read with s. 120B:
(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 eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(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(3), 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."
The Statements of Principle
There are two sets of SoPs which are relevant in this case. In the following paragraphs, I will set out each of them in so far as Mr Piper relied upon them. The SoPs have been amended since the time the Commission considered Mr Hill's claim but, for the reasons I gave in Reading and Repatriation Commission (unreported, AAT 20 September, 2000, Miss S A Forgie (Deputy President), Captain ET Keane (Member)), I have taken the SoPs in force at the time the Commission made its decision on 14 January, 1998 to be the relevant SoPs.
Electrocution
At the time the Commission made its decision, the relevant SoPs concerning electrocution were SoP No. 149 of 1995 and No. 150 of 1995 depending upon whether the electrocution occurred during a period of Mr Hill's operational service or defence service. As it occurred during a period prior to his operational service, it could be neither operational or defence service. Consequently these SoPs are not relevant in this case.
Post Traumatic Stress Disorder
At the time this case was considered by the Commission, the relevant SoP as to whether Mr Hill has war-caused PTSD was SoP No.15 of 1994 ("SoP 15") as amended by SoP No. 225 of 1995 ("SoP 225"). The RMA begins its SoP with a recital that there is sound medical-scientific evidence that indicates that PTSD can be related to operational service as well as other specified service. It defines PTSD to mean:
"... 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:
(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."
SoP 15 states that, before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the veteran's service, there must exist as a minimum the veteran's:
"(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." (paragraph 1)
CONSIDERATION
If Mr Hill is entitled to a pension under the Act, he must have a war-caused injury or disease or a defence-caused injury or disease. Taking first those that are war-caused, Mr Hill's injury or disease must have arisen out of, or have been attributable to, any eligible war service he has rendered. It is not enough that they have arisen out of, or been attributable to, any service he rendered in the Navy. If they are defence-caused, they must have arisen out of, or been attributable to any defence service. Again, it is not enough that they have arisen out of, or been attributable to, any service he rendered in the Navy. It follows that the incidents that occurred outside the periods of Mr Hill's eligible war service or defence service are not relevant in the context of these proceedings. That is to say, account can not be taken of the electric shock Mr Hill suffered on 16 March, 1966 or of the events in New Guinea. The only incident that occurred during either Mr Hill's war-caused or defence-caused service was the loss of the Sea Venom.
The only psychiatric evidence in this case is the report prepared by Dr Marinovich. He was not available to give evidence at the hearing. His report did not address the many criteria set out in DSM-IV. As to its cause, he briefly stated that the electrocution was "probably the precipitating factor" and the condition had been compounded by other experiences, especially those in a riot in New Guinea. Dr Lloyd and Dr Giblin are not psychiatrists and have merely adopted the diagnosis of PTSD rather than formulating their own. Neither was called to give evidence. Dr Gormly was called to give evidence but is not a psychiatrist. Although he said that he found the history he took was consistent with Mr Hill's suffering PTSD, he again did not make his own diagnosis.
The issue in this case is whether any PTSD from which Mr Hill suffers arose out of, or was attributable to, his eligible war service. The hypothesis put forward on his behalf 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 or led to the clinical worsening of PTSD that he had already suffered as a result of the electric shock he had suffered. I will begin with the first limb of the hypothesis and consider whether the material points to the hypothesis and that is answered in this case by reference to SoP 15 as amended by SoP 225.
There is material pointing to a Sea Venom's having crashed in the sea when Mr Hill was on the Melbourne in the Philippine Sea. That is found both in the literature I have set out above and in Mr Hill's evidence. There is also material pointing to the observer's having been lost at sea and that is found in the same sources. Mr Hill's evidence of seeing a man in the cockpit is the material pointing to a person's being trapped. 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.
Mr Hill's evidence points to his experiencing distressing recollections of the event, including images, thoughts, or perceptions and so meets paragraph (b) of the description of PTSD in SoP15.
There is material in Mr Hill's statements that he makes efforts to avoid thoughts, feelings, or conversations associated with the trauma as described in paragraph (c)(i). Mr Hill must, however, bring himself within two of the other sub-paragraphs of paragraph (c). There is no material pointing to his avoiding activities or people that arouse recollections of the trauma, having a diminished interest or participation in significant activities or have a restricted range of affect or a sense of a foreshortened future. Certainly, he is divorced, but the material points to his associating well with people in the two clubs to which he belongs and with the flatmates with whom he shares his unit over the last six years. There is material pointing to Mr Hill's having an inability to recall an important aspect of the trauma in that it points to his recollection being inconsistent with the historical records of it. Even on that basis, Mr Hill only comes within two, and not three, of the factors set out in paragraph (c).
The material does point to Mr Hill's having difficulty falling or staying asleep, irritability or outbursts of anger and difficulty concentrating. That material is found in Mr Hill's own evidence. Consequently, it points to his meeting paragraph (d). The same material also points to his suffering the disturbance described in paragraphs (b) and (d) for more than one month and the disturbance has caused clinically significant distress or impairment in his functioning in his previous employment with Telstra. The material in the reports of Dr Lloyd and Dr Gormly as well as the evidence of Mr Hill points to that.
It follows that, although the material points to Mr Hill's meeting some of the criteria required for a finding of PTSD, it does not point to his meeting all of them. There is, therefore, no material pointing to Mr Hill's PTSD arising out of, or being attributable to the Sea Venom incident or event in his eligible war service.
Mr Hill feels that he should have been offered counselling after the loss of the Sea Venom but there is no material pointing to his being unable to obtain appropriate clinical management for PTSD at any stage in his service after the event. There is a difference between his feeling that he should have been offered counselling and his being unable to obtain appropriate assistance. There is no suggestion that he was suffering any difficulties after the event whether those events occurred during his eligible war service or his defence service.
The second limb of the hypothesis was that Mr Hill was already suffering from PTSD as a result of suffering an electric shock. If it is the case that he was already suffering from PTSD, there is no material that points to a clinical worsening of the condition. Dr Gormly surmised that the condition could have been worsened by the Sea Venom incident but, there is no material pointing to its worsening in any sense associated with Mr Hill's symptoms rather than in a theoretical sense. It is in the former (i.e. clinical) sense that is what is required by
SoP 15. His drinking episode in Hong Kong does not of itself point to it. The New Guinea incidents do not alter my conclusion. Like the electric shock, they did not occur in a period of operational service or defence service. Unlike the electric shock, they occurred after the Sea Venom incident and so the Sea Venom incident cannot be regarded as aggravating any PTSD they might have caused.
If I am incorrect in my conclusion, I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt. That relates to the man who Mr Hill said was trapped in the cockpit. Having regard to the material in the publication, Sea Fury, Firefly and Sea Venom, by Stewart Wilson, as well as the extract from H.M.A.S Melbourne 25 Years by Ross Gillett, I am find beyond reasonable doubt that the Sea Venom was a two seater aircraft. On the same basis, I also find that the model of aircraft that crashed had both ejection seats and an ejection canopy. I also find that both the pilot and observer ejected from the aircraft. As there were only two people in the aircraft and has they had ejected, there could not have been any person trapped under the canopy. Even if only one person had ejected, one could not be trapped under the canopy as it must have ejected when the other person ejected. Mr Hill could not have seen a person trying to get out of the aircraft as it sank. It follows that I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt.
It follows that any PTSD from which Mr Hill suffers is not a war-caused or defence-caused injury or disease within the meaning of the Act. For the reasons I have given I affirm the decision of the respondent dated 14 January, 1998 and affirmed by a decision of the Veterans' Review Board dated 18 September, 1998.
I certify that the ninety seven preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ..........................................
M Martinez AssociateDates of Hearing 25 May, 2000; 15 September, 2000
Date of Decision 20 November, 2000
Solicitor for the Applicant Mr W Piper
Advocate for the Respondent Mr G Doube
5
0