Wild and Repatriation Commission
[2003] AATA 1088
•31 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1088
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/356
VETERANS' APPEALS DIVISION ) Re DOUGLAS HENRY WILD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B J McCabe, Member Date31 October 2003
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the applicant’s psycho-active substance abuse or dependence was caused by his war service.
The date of effect is 17 June 1997.
.
(Sgd) B J McCabe
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether veteran’s psycho-active substance abuse or dependence was caused by his operational service
Veterans’ Entitlements Act 1986
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
31 October 2003 Mr B J McCabe, Member Introduction
1. Mr Douglas Wild served in the Navy between 1957 and 1963. For part of that time, he was a ‘hook-man’ aboard the aircraft carrier HMAS Melbourne.. It was difficult and dangerous work. He now claims to suffer from psycho-active substance abuse or dependence, which is attributable to his service. He says he can no longer work. He is seeking compensation under the Veterans’ Entitlements Act 1986.
2. The respondent and the Veterans’ Review Board rejected the applicant’s claim. In order for him to succeed before the Tribunal, he must establish he suffered from a stressful event prior to the clinical onset of his condition. That requirement is laid down in Statement of Principles No 5 of 1994.
The Material Before the Tribunal
3. This matter proceeded to hearing before the Tribunal on 27 November 2002 and 5 March 2003. The Tribunal was supplied with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). It was also provided with:
§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
§Writeway Research Report, dated 14 April 2002 Exhibit 16
and took oral evidence from:
§Douglas Wild
§Hendrika Wild
§Andrew Craig
§David Terry
§Anthony Smith
§Dr Mulholland
§Dr Kingswell
§Gary Linaker
§Commodore Mulcare (Rtd)
4. The applicant was represented by Mr McGhee of counsel, and the respondent was represented by Mr Williams.
The Applicant’s Medical Condition Now
5. The respondent accepted the applicant suffers from a range of conditions including, relevantly, psycho-active substance abuse or dependence involving alcohol and post traumatic stress disorder (PTSD). The applicant conceded his PTSD was not related to his operational service, although it was argued his operational service might have made him more vulnerable to the condition. The Commission says the psycho-active substance abuse is also unrelated to operational service. That is the heart of the dispute: can the psycho-active substance abuse be traced back to trigger events that took place during the applicant’s brief period of operational service aboard HMAS Melbourne in early 1962? Or is it attributable to other events, such as the accident that occurred aboard the Melbourne after the period of operational service concluded?
The Facts
6. The applicant’s operational service was between 28 February 1962 and 16 March 1962. During that time he served as a hook-man aboard the aircraft carrier HMAS Melbourne while it was travelling from Australia to Singapore as a part of the Far East Strategic Reserve. The ship was travelling in company with vessels from other friendly navies and engaged in exercises along the way.
7. Apart from the evidence of the applicant and a number of other witnesses, the Tribunal was also shown a television documentary about the Melbourne. The description of the Melbourne’s operations is drawn from all of that evidence.
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. I have no reason to doubt his evidence on this point.
13. The tempo of operations increased after the ship left Fremantle bound for Singapore on the voyage in question. The ship took part in exercises with other ships attached to the Far Eastern Strategic Reserve. There were night operations. The aircraft were more likely to be armed in those circumstances. There were more flights. There was also the possibility of encountering forces from other countries: the record of proceedings tendered in evidence noted an encounter with Indonesian MiG-17 aircraft flying low over the ship on 22 March 1962. The applicant said the increased intensity of operations made his work even more stressful and dangerous. Other witnesses agreed that operational service was more dangerous, or at least more intense.
14. The applicant served in a variety of roles on the Melbourne before he was assigned the hook-man’s job shortly before the period of operational service in question. He said in his evidence he was speechless and fearful when he got the job. He did not complain, he explained, because it was not the done thing. He claims he spoke of his fears to his wife in his regular letters. He remained stressed and fearful throughout his period of operational service and thereafter, until he was reassigned after his injury in May.
15. Mr David Terry gave evidence on behalf of the applicant. Although he did not serve on the Melbourne during the relevant period, he was familiar with the ship and its operations. At one time, he was responsible for supervising the hook-men. He confirmed that being a hook-man was a “hairy” job. Mr Smith, Mr Linaker and Mr Craig also confirmed that being a hook-man was stressful, especially during periods of operational service.
16. Mrs Wild gave evidence that she noticed a change in her husband’s letters during this period. He had always been a good correspondent, she said, but during late 1961 and early 1962, his letters became more distressing. He spoke often of his fear and the dangers associated with his job. He was a changed man when he returned, she said – although by that time he had been injured when the Gannet fell on him after the operational service concluded.
17. Having heard all the evidence about the work of the hook-man and the increased intensity – and perhaps danger – of operations during the voyage while the Melbourne was on active service, I am satisfied the applicant did experience a “stressful event” within the meaning of the relevant Statement of Principles. It remains for me to consider whether there is a causal connection between the stressful event and the applicant’s subsequent ill-health.
The Medical Evidence
18. The applicant called Dr Mulholland. Dr Mulholland is not the applicant’s treating psychiatrist. He read the reports of Dr Lichter, the treating psychiatrist, and Dr Kingswell.
19. Dr Mulholland opined that Mr Wild suffered from PTSD that is probably directly attributable to the incident with the Gannet outside of the period of operational service. But he added the applicant was probably in an anxious state by the time he had that accident anyway as a result of his experiences as a hook-man. He conceded the applicant might have had PTSD during the period of operational service. He agreed with Dr Lichter’s reported conclusion that the applicant’s PTSD was attributable to his accident (which occurred outside the period of operational service) and his experiences as a hook-man, which occurred within the relevant period.
20. Dr Kingswell offered a different view. He said the applicant’s alcohol intake was an incident of his PTSD. It was not connected to his operational service.
Analysis of the Evidence: the Legal Conclusions
21. The applicant says the result in this case depends on whether I accept the applicant’s experience as a hook-man qualifies as a “stressful event” within the meaning of the relevant Statement of Principles. I have already done so. The case is complicated by the fact that there are competing stressful events: the work of the hook-man, and the subsequent accident in which the applicant was struck by a plane and ruptured his liver. The second incident sounds more serious, and Dr Kingswell suggests it is more likely to be the cause of the conditions that followed.. But the events are so closely connected in time that is difficult to disentangle them. Dr Mulholland says as much, and I prefer his evidence on this point. It may be that the second event made a more significant contribution to the development of the condition but I am reasonably satisfied that the applicant was vulnerable to the development of his other conditions as a result of his high levels of anxiety generated by his work as a hook-man. He may well have developed PTSD and psycho-active substance abuse or dependence even if the accident had not occurred.
22. Mr McGhee referred to the High Court’s decision in Watts v Rake (1960) 108 CLR 158. He argued the case stands for the proposition that a defendant in proceedings like these is obliged to prove that events preceding the development of the condition were not the cause of what followed. As Menzies J explained (at 164):
“…it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.”
23. In other words, where there are several possible explanations for what occurred and only one of them gives rise to a right to compensation, the defendant must establish it was not the compensable act that led to the subsequent problems. He must positively establish on the balance of probabilities that the other events are to blame. Given the findings I have made, it is apparent that cannot be done in this case. The compensable act – the stress associated with being a hook-man – cannot be excluded as a cause, or at least a contributor to, the later conditions.
Conclusion
24. The decision under review is set aside and in substitution therefor the Tribunal decides that the applicant’s psycho-active substance abuse or dependence was caused by his war service. The date of effect is 17 June 1997.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Sarah Oliver
AssociateDates of Hearing 27 November 2002 and 5 March 2003
Date of Decision 31 October 2003
Counsel for the Applicant Mr McGhee
Solicitor for the Applicant Streeting Haney
For the Respondent Mr Williams, Departmental Advocate