Wild and Repatriation Commission

[2005] AATA 670

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 670

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No       Q2004/668

VETERANS’ APPEALS DIVISION		)
Re		DOUGLAS HENRY WILD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date13 July 2005

PlaceBrisbane

Decision The decision under review is set aside. The applicant’s conditions are related to his operational service. The matter is remitted to the respondent for calculation subject to these reasons. The date of effect is 17 June 1997.

.................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans Entitlements – application for pension – diagnosis of conditions in issue – post traumatic stress disorder – psychoactive substance abuse and gastro-oesophageal reflux disease – all conditions diagnosed and found to be war-caused.

Veterans Entitlements Act 1986 (Cth), ss13, 120

Wild and Repatriation Commission [2003] AATA 1088

Repatriation Commission v Deledio (1998) 27 AAR 144

Bull v Repatriation Commission [2001] FCA 1832

Repatriation Commission v Stoddart [2003] FCFCA 300

Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334

Repatriation Commission v Gorton (2001) 110 FCR 321 ; 65 ALD 609

REASONS FOR DECISION

13 July 2005 Senior Member B J McCabe

1.      Mr Douglas Wild is the applicant in these proceedings. He claims to suffer from post traumatic stress disorder (PTSD), psychoactive substance abuse and gastro-oesophageal reflux disease. He says these conditions are connected to periods of operational service aboard HMAS Melbourne between 1959 and 1962. The applicant has applied for a pension pursuant to s 13(1) of the Veterans Entitlements Act 1986 (the VEA).

2.      The Tribunal concluded in Wild and Repatriation Commission [2003] AATA 1088 that the applicant’s claim for substance abuse was made out. The Tribunal did not address the claims in respect of PTSD (the Tribunal was under the impression that claim had been conceded by the applicant) or gastro-oesophageal reflux disease. The matter was remitted by the Federal Court with the consent of the parties. I understand the applicant is pressing his claim in respect of all three conditions. All three claims are resisted by the respondent.

3.      I reheard the matter on 12 December 2004. The following documents tendered at the earlier hearing were tendered in evidence in these proceedings:

·    Documents lodged pursuant to s 37 (the “T” documents)

·    Report by Dr Mulholland, dated 12 June 2002 (Exhibit 2);

·    Copy of Photographs (24) and Notes (Exhibit 3);

·    Statement of Hendrika Wild, dated 4 February 2001 (Exhibit 4);

·    Statement of Douglas Wild, dated 11 April 2001 (Exhibit 5);

·    Statement of Douglas Wild, dated 13 September 2000 (Exhibit 6);

·    Statement of Douglas Wild, dated 17 December 2001 (Exhibit 7);

·    Statement of Andrew Stuart Smith, undated (Exhibit 8);

·    Statement of David John Terry, undated (Exhibit 9);

·    Statement of Gary J Linaker, dated 5 June 2001 (Exhibit 10);

·    Statement of Andrew Craig, dated 31 May 2001 (Exhibit 11);

·    Video from Naval Aviation Museum (Exhibit 12);

·    Copies of Photographs (4) of HMAS Melbourne planes (Exhibit 13);

·    Report by Dr Kingswell, dated 19 December 2000 (Exhibit 14);

·    Writeway Research Report, dated 9 August 2001 (Exhibit 15); and

·    Writeway Research Report, dated 14 April 2002 (Exhibit 16)

4.      The transcript of the earlier hearing was also tendered in evidence. The transcript included the evidence given by:

·     Ms Hendrika Wild;

·     Mr Douglas Wild;

·     Mr Andrew Craig;

·     Mr David Terry;

·     Mr Anthony Smith;

·     Dr Peter Mullholland

·     Dr William Kingswell;

·     Mr Gary Linaker; and

·     Mr Peter Mulcare.

5.      I heard further evidence from the applicant. The respondent led additional evidence from Dr Mulholland, a psychiatrist who gave evidence at the first hearing.

6.      Mr Clutterbuck represented the applicant in these proceedings, and Ms Ford represented the respondent.  Both counsel provided me with extensive written submissions.

the factual background to the dispute

7.      The applicant served in the Navy from 14 January 1957 to 22 April 1963. He had operational service aboard HMAS Melbourne between 18 March 1959 to 28 February 1961 and 28 February 1961 to 16 March 1962.

8.      The applicant was assigned to the Melbourne’s flight deck. He performed a variety of roles in relation to the aircraft that landed and took off from the carrier. The applicant served as a “hook-man” during the second period of operational service. This service was the focus of the applicant’s claim.

9.      I described the aircraft carrier’s operations and the role of the hook-man in the following terms in the earlier decision:

8. The Melbourne was not a large aircraft carrier by today's standards. During the period in question, it embarked Sea Venom jets and Gannet propeller driven planes. The process of landing an aircraft on the flight deck might best be described as a controlled crash. The aircraft would approach from the rear of the ship at an effective speed of about 120 miles per hour. The pilots used mirrors and signals to negotiate their way onto the narrow flight deck that might be pitching and rolling according to the weather and sea conditions. There were six arrestor wires - thick cables - strung out across the deck. Each plane had a hook on its fuselage. If all went according to plan, the pilot would land the plane so that he caught one of the wires with the hook. The plane would come to a halt on the deck having been caught. There was some give in the wires: they were wound onto a reel at each end, and the reel would let out some wire so the plane did not stop dead on a taut wire. Ideally, a pilot would catch the first or second wire; less tidy landings would collect one of the later ones, or the plane would have to go around again - assuming it did not crash.

9. The applicant and some of the other witnesses described the role of a hook-man aboard the Melbourne. I was told it was regarded as one of the most dangerous jobs on the ship. As the plane touched down on the flight deck and (hopefully) picked up a wire, the hook-man would run from his place on the side of the flight deck towards where the aircraft was supposed to come to rest. If the aircraft was a Sea Venom, he had to ensure the hook let go of the wire automatically as it was intended to do once the aircraft stopped. If the hook malfunctioned, the hook-man might have to manually release the wire from the hook.

10. The Gannets did not have an automatic release mechanism. The hook-man was required to run in behind the aircraft and wrestle the wire from the hook each time the plane landed. He had to dodge the propellers on the heaving deck and avoid the prop-wash and exhaust. Mr Andrew Craig, a former naval aviator called by the applicant, explained the Gannets were particularly dangerous because they had exhaust outlets on both sides of the fuselage. Worse, he explained that Gannet pilots typically accelerated as they touched down on the deck so they would have enough power to go around if the aircraft missed the wire. That meant more hot exhaust. The hook-man also had to avoid the wire as it slithered back across the deck when it was retracted onto the reels ready for the next plane. The aircraft itself might still be moving when the hook-man reached it. It perched precariously on its undercarriage and might move as the ship rolled. The applicant was seriously injured several months after his period of operational service concluded when the tail of a Gannet fell on him as it rocked backwards. He suffered a ruptured liver.

11. The hook-man's job was very stressful. It was inherently dangerous: running around amongst moving aircraft day and night in all kinds of weather was risky. The hook-man and other ground crew knew they had to be quick about their jobs, as other planes were about to land and the flight deck had to be cleared. During particularly intense operations, a plane might land every 90 seconds. The planes had nowhere else to go and could not easily be diverted once they were on their final approach.

12. Sometimes the aircraft were armed. They might be carrying rockets or other ordnance. Occasionally rockets would malfunction and an aircraft would land with a rocket hanging loose from its bracket on the wing (a "hang up"). The applicant said he heard of instances where a rocket suddenly blasted across the deck after the plane landed. He conceded he had never seen such an incident, but insisted the danger was real.

10.     The applicant says the job was inherently and relentlessly risky. He says he lived in a constant state of fear for his safety, and for the safety of those with whom he worked. The fear was apparently well-founded: he was seriously injured when he was struck by the tail of a plane, although this incident occurred outside his period of operational service. The applicant’s wife told of the change in tone of letters she received. She says it was clear her husband was frightened. She added that she noticed changes in her husband when he returned from the ship on leave after he had been injured following operational service. Other witnesses (Messrs Craig, Terry, Smith and Linaker) confirmed the work of a hook-man was very stressful, especially during periods of operational service.

11.     The applicant says he has intense recollections of his work as a hook-man while on operational service (interestingly he says he does not have the same intrusive recollections of the accident which occurred after his period of operational service concluded) and experiences bad dreams. He says he is reluctant to walk on an airport tarmac because of the memories it brings back. He says he drinks to relieve the stress. He says he has difficulty sleeping and can be irritable.

the medical evidence

12.     Drs Lichter, Mulholland and Kingswell agreed the applicant suffers from PTSD. Dr Kingswell says the PTSD is attributable to the accident that occurred after the operational service. Dr Lichter opined that the condition was attributable to the stressful nature of the work while on operational service, although the subsequent accident was also partly to blame. Dr Mulholland said PTSD was attributable to the later event, but in his evidence at the first hearing he conceded it was possible the applicant might have been suffering from an anxiety condition – and perhaps even the early stages of PTSD – during his operational service. When recalled to give evidence at the hearing in these proceedings, Dr Mulholland clarified his position. He said the work of a hook-man was undoubtedly stressful and may have given rise to anxiety. He noted there was not one particular incident which gave rise to stress: the hook-man performed a series of actions every time a plane landed that would, taken together, generate anxiety.

13.     Dr Mulholland opined in cross-examination that the applicant suffered from an anxiety condition that he thought was clinically significant as a result of his work as a hook-man while on operational service. Subject to the question of whether it was possible to identify an event or events that qualified as severe stressors, it appears he was prepared to concede the applicant suffered from PTSD that was at least partly attributable to his work as a hook-man while on operational service.

14.     I am satisfied in the circumstances that the applicant does suffer from PTSD, although I acknowledge the questions as to the trigger of that condition. All three doctors agree the applicant has an alcohol abuse condition. I note Dr Robinson says the applicant suffers from gastro-oesophageal reflux disease; I accept that diagnosis.

assessing the claim

15.     Sections 120(1) and (3) set out the applicable standard of proof. The operation of these provisions was discussed by the Full Federal Court in Repatriation Commission v Deledio (1998) 27 AAR 144. In that case, the Court held the decision-maker should proceed through four steps after a diagnosis was decided.

16.     The first step is to identify the applicant’s hypothesis. The applicant says he suffered stress and anxiety during his work as a hook-man aboard the Melbourne during operational service which contributed to the development of PTSD and a substance abuse problem. The substance abuse problem in turn contributed to the development of gastro-oesophageal reflux disease.

17.     The respondent pointed out it is not enough for the applicant to make assertions. There must be material before the Tribunal which points to the hypothesis connecting service with the claimed conditions: see, for example, Bull v Repatriation Commission [2001] FCA 1832 (at paragraph 19 per Emmett and Allsop JJ). The applicant will fall at this hurdle if the material before the Tribunal does not include essential links in the chain of causation. He or she will also fail where the material does not exclude a causal connection but does not suggest it either.

18.     The respondent invited me to conclude the material did not point to a hypothesis connecting Mr Wild’s service with his conditions. Ms Ford argued there was no identifiable event or incident which could qualify as a severe stressor for the purposes of the relevant statements of principle. The applicant’s job was stressful and risky, but there were no discrete incidents that could be identified as factors in the development of the PTSD or substance abuse conditions.

19.     The requirement in the definition of severe stressor in the SoP relating to PTSD requires the claimant “experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury” to that person or to another. Mr Clutterbuck, for the applicant, says the applicant’s job was comprised of a series of events within the meaning of the SoP – running towards a moving plane as it landed on the flight deck, dodging propellers and jet intakes and hot exhaust, manhandling an unstable aircraft that could move unpredictably and crush the unlucky, and avoiding live munitions that might have malfunctioned or misfired.

20.     I agree the applicant’s job was comprised of a series of events within the meaning of the SoP. I note the alcohol abuse/psycho-active substance abuse SoPs also refer to events.

21.     Ms Ford relied on the decision of the Full Court in Repatriation Commission v Stoddart [2003] FCFCA 300 to argue that very stressful jobs cannot give rise to a threat of injury or death if the risk of harm only arises when something goes wrong. In the absence of evidence that something has gone wrong, a person in the applicant’s position with his training and background would not perceive there to be a threat. She used the analogy of driving a car: a driver faces a theoretical risk of horrific injuries whenever he or she uses the road. Drivers do not routinely perceive a threat in those terms in the absence of evidence that other road users are behaving dangerously or failing to observe the road rules.

22.     I think the key is to have regard to how a person with the applicant’s background and experience would perceive the events in which the applicant participated on the flight deck each time an aircraft came into land – especially in the circumstances prevailing on the flight deck while the ship was on operational service. That is the lesson from Stoddart. The applicant said he was terrified on each occasion he went onto the flight-deck, and he was always conscious of the real risk of death or serious injury. I note a number of other witnesses familiar with the work agreed the job was dangerous. The evidence makes it clear that accidents were a distinct possibility even if everyone did his or her job properly. That risk was heightened while the ship was on operational service because the flight operations intensified, and operations were often conducted at night. The hook-man’s experience was not like driving a car where the risk of death and injury only arises if something goes wrong, and the likelihood of something going wrong is relatively low. Reasonable men were apparently frightened of the work precisely because the risk of things going wrong was so high - especially during the more intense activities at night occurring while the ship was on operational service.

23.     Ms Ford argued in her written submissions that the VEA was not intended to provide compensation for doing a risky job. She warned that permitting veterans to recover on the basis they performed a risky job would open the floodgates to claims from anyone entering an area of operational service. I disagree. As I have already indicated, the evidence suggests the hook-man’s job exposed the veteran to more serious threats of injury and death than other jobs: it was regarded as one of the most hazardous jobs on the ship. In any case, it is not enough to establish that a job was risky – even very risky – in order to succeed in a claim. An applicant must establish that a person of his background, experience and training would have reacted adversely before a claim can succeed: see, for example, Stoddart. Many of the people performing more dangerous jobs might be expected to become inured to the risks they faced, whether because of temperament, training or experience. To use a simple example, a bomb disposal expert who volunteered and was trained to do that intricate and dangerous work might be expected to have a greater capacity to deal with situations that might terrify a person with no experience or training. Mr Wild made it clear he did not volunteer for his job, and the training was limited. Another individual working as a hook-man might be in a different position.

24.     I am satisfied the material points to the hypothesis linking the applicant’s service with his claimed conditions.

25.     The next step is to formally identify the relevant statements of principle. They are:

·PTSD: No 3 of 1999 as amended by No 54 of 1999 (although regard might also be had to No 15 of 1994 as amended by No 225 of 1995);

·Psychoactive Substance Abuse: No 76 of 1998 (although regard might also be had to No 5 of 1994);

·Gastro-oesophageal reflux disease: No 62 of 1999.

26.     The third step is to consider whether the applicant’s story is capable of fitting the template provided by each SoP. The Tribunal is not making findings of fact at this point. That comes later.

(i) the applicant’s claim in respect of ptsd

27.     The medical evidence suggests the applicant suffers from PTSD, although there is disagreement over whether the condition is attributable to the applicant’s work as a hook-man while on operational service.  

28.     SoP No 54 of 1999 provides that certain factors must exist at a minimum before PTSD can be said to be war-caused. Factor 5(a) is of particular relevance in this case: it arises where the applicant “experienced a severe stressor prior to clinical onset of PTSD”. The expression severe stressor is defined in paragraph 8 in the following terms:

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

In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or

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

29.     It will be apparent from my remarks in relation to the question of whether or not the material points to a hypothesis that I am satisfied the applicant experienced a severe stressor. The applicant says he faced the threat of death or serious injury every time he went on deck to do his job as a hook-man while on operational service. The source of the threats on each occasion was clear enough: running around on a slippery, pitching flight-deck amongst jet intakes, propeller blades, hot exhaust, unstable airframes and ordinance that was live and occasionally malfunctioning. The work was extremely hazardous, particularly during operational service when the tempo of operations increased significantly. Operations at night posed special dangers. I am satisfied any person with the applicant’s experience and training and background would reasonably perceive the events as threats.

30. I am satisfied in those circumstances that the applicant’s story “fits” the template of SoP No 3 of 1999 as amended by No 54 of 1999 relating to PTSD. There is no reason to consider the earlier (revoked) SoP that was applicable at the time the claim for compensation was made: see Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334 at [16] discussing Repatriation Commission v Gorton (2001) 110 FCR 321 ; 65 ALD 609.

(ii) the applicant’s claim in respect of his alcohol abuse

31.     A veteran “suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse or alcohol dependence” is able to link the two conditions. If the psychiatric condition was related to operational service, the alcohol abuse could be linked to that service: see paragraph 5(a) of SoP No 76 of 1998. Paragraph 1(b) of SoP No 5 of 1994 is expressed in similar terms.

32.     I have already concluded the applicant’s account of his operational service suggests he experienced events that qualified as severe stressors within the meaning of the PTSD SoP. That means he can claim his PTSD is connected to his service if I accept his story at the fact-finding stage of the inquiry. Given the evidence suggests the applicant’s problems with alcohol started after he began work as a hook-man, I am satisfied his story “fits” the template provided by SoP No 76 of 1998 relating to alcohol abuse. It is therefore unnecessary to refer to the earlier (revoked) SoP.

(iii) the applicant’s claim in respect of Gastro-oesophageal reflux disease

33.     The third claim can be disposed of easily if it is established the applicant’s alcohol abuse condition is related to service. Factor 5(g) of SoP No 62 of 1999 identifies alcohol abuse as a factor contributing to the development of gastro-oesophageal reflux disease if the alcohol abuse condition is present at the time of onset of the other condition. The medical evidence suggests that is the case here. It follows the applicant’s claim “fits” the template of the SoP.

findings of fact

34.     I am satisfied the applicant was an honest witness who did not exaggerate his story. I accept his account of his work as a hook-man during operational service. I accept that flying operations became more intense during operational service and more hazardous. I accept that flying operations at night and in rough seas were particularly dangerous. I accept he did not volunteer for the job, and that he did not receive extensive training or counselling. I accept he was terrified by his experiences.

conclusion

35.     The applicant’s conditions are related to his operational service. The decision under review is set aside and the matter is remitted to the respondent for calculation subject to these reasons. The date of effect is 17 June 1997.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate: Sam J Appleton

Dates of Hearing  13 & 14 December 2004
Date of Decision  13 July 2005

The applicant was represented by Mr Clutterbuck of counsel.

The respondent was represented by Ms Ford of counsel.