FEDERAL COURT OF AUSTRALIA

Hill v Repatriation Commission [2004] FCA 851

VETERANS’ AFFAIRS – claim for a disability pension under Veterans’ Entitlements Act 1986 (Cth) (VE Act) in respect of post traumatic stress disorder, psycho-active substance abuse or dependence and electrocution – whether the Administrative Appeals Tribunal erred in not following the decision-making process required by ss 120 and 120A of the VE Act and as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 – whether the applicant’s hypothesis connecting his diseases to his operational service was disproved beyond reasonable doubt

Administrative Appeals Tribunal Act 1975 (Cth)

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 13(1), 120, 120A

Hill v Repatriation Commission (2001) 66 ALD 293; [2001] FCA 1775 cited

Repatriation Commission v Hill  (2002) 69 ALD 581; [2002] FCAFC 192 cited

Byrnes v Repatriation Commission (1993) 177 CLR 564 applied

Repatriation Commission v Keeley (2000) 98 FCR 108 cited

Repatriation Commission v Gorton (2001) 110 FCR 321 cited

Fogarty v Repatriation Commission [2003] FCAFC 136 cited

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

Dunlop v Repatriation Commission [2003] FCAFC 201 applied

Repatriation Commission v Crane [2004] FCAFC 86 cited

Repatriation Commission v Whetton (1991) 31 FCR 513 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 applied

Repatriation Commission v Thompson (1988) 44 FCR 20 applied

Willcocks v Comcare (2001) 66 ALD 119 applied

Waterford v The Commonwealth (1987) 163 CLR 54 applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

KENNETH NORMAN HILL v REPATRIATION COMMISSION

D 13 of 2003

MANSFIELD J

1 JULY 2004

DARWIN

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

introduction

1                     This is an application by way of appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 17 November 2003.  It relates to the applicant’s claim for disability pension first made on 24 September 1997 under s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) in respect of three conditions:  post traumatic stress disorder (PTSD), psycho-active substance abuse or dependence (alcohol abuse), and electrocution.

2                     The applicant served in the Royal Australian Navy between 23 October 1965 and 19 March 1978.  He was aged 17 when he first enlisted.  Following enlistment, he undertook three months’ training and then joined HMAS Melbourne as an ordinary seaman, electrical mechanic.  He spent two periods of operational service on HMAS Melbourne in Vietnam between 24 April and 4 May 1966 and between 30 May and 9 June 1966.  Those periods of operational service constitute ‘eligible war serve’ as defined in s 7 of the VE Act.  His service from 7 December 1972 to 19 March 1978 constituted ‘defence service’ as defined in the VE Act.

3                     Subsequent to 1978, the applicant was employed as an electronic technician until 21 January 2000, when his employment was terminated on the grounds of medical incapacity relating to his alcoholism.  He gave evidence that he started drinking alcohol in 1966, and that his drinking habit became progressively worse.  His service records indicate a provisional diagnosis of alcoholism in 1974.

4                     The claim for a disability pension was based on three incidents which occurred during his service, only one of which occurred during operational service.  He reported an incident when he suffered electrocution whilst on board HMAS Melbourne on 16 March 1966 near Port Jervis in New South Wales.  Secondly, he claimed to have witnessed on 28 April 1966 the inability of a crew member to escape from the cockpit of a Sea Venom aircraft which failed to land properly and so fell into the ocean and sank during his operational service in Vietnam.  Thirdly, he claimed to have experienced a life threatening situation when defending or guarding a property in the course of a riot while stationed in New Guinea during the period of his defence service in 1971- 1972.

5                     The applicant’s claims were rejected by the respondent on 14 January 1998.  That decision was affirmed by the Veterans’ Review Board on 18 September 1998.  The applicant sought review of that decision by the Tribunal.  On 20 April 2000 the Tribunal affirmed the decision of the respondent to reject the three claims.  He then applied to this Court under s 44(3) of the AAT Act asserting error of law on the part of the Tribunal in reaching its decision.  The decision of the Tribunal was set aside by von Doussa J, and the matter remitted to the Tribunal for reconsideration according to law:  Hill v Repatriation Commission [2001] FCA 1775; (2001) 66 ALD 293 (the first Hill decision).  An appeal to the Full Court (Black CJ, Drummond and Kenny JJ) was dismissed, save that the remittal was limited to the claims for PTSD and alcohol abuse.  The Tribunal did not fall into error in its consideration of the claim for a pension in respect of electrocution.  See Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581. 

6                     The present decision now challenged by way of appeal is the decision of the Tribunal upon its further reconsideration of the applicant’s claims in respect of the conditions of PTSD and alcohol abuse.

the legislation

7                     Section 13(1) of the VE Act renders the Commonwealth liable to pay pension to a veteran who has become incapacitated from a war-caused injury or disease.  The applicant claims that his conditions of PTSD and alcohol abuse are war-caused diseases as defined in s 9(1) of the VE Act.  Section 120 deals with the question of the standard of proof to be applied by the respondent, and on review by the Tribunal, when addressing the question whether a disease is a war-caused disease.  Where a claim relates to operational service, the standard of proof to be applied is that prescribed by s 120(1) and (3) and as discussed and explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 (Byrnes) per Mason CJ, Gaudron and McHugh JJ at 571.  It is the applicant’s claim that his diseases do relate to his operational service.

8                     Section 120(1) of the VE Act 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.’

9                     Section 120(3) provides:

‘In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)               that the injury was a war-caused injury or a defence-caused injury;

(b)               that the disease was a war-caused disease or a defence-caused disease; or

(c)               that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.’

10                  As the applicant’s claims were made on or after 1 June 1994, s 120A also applies to the consideration of his claims.  Section 120A(3) is the immediately relevant subsection.  It provides:

‘For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)               a Statement of Principles determined under subsection 196B(2) or (11); or

(b)               a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.’

11                  Before the Tribunal, the applicant identified in respect of his condition of PTSD the Statement of Principles (SoP) No 15 of 1994 as amended by SoP No 225 of 1995 (the 1994/1995 PTSD SoP).  The respondent accepted that without demur.  In fact, at the time of the Tribunal’s decision, the 1994/1995 PTSD SOP had been repealed and replaced by SoP No 3 of 1999 as amended by SoP No 54 of 1999 (the 1999 PTSD SoP).  Its existence appears to have been overlooked by all parties.  In the light of the decisions of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321, the applicant was entitled to have his claim in respect of the condition of PTSD addressed under s 120A(3) firstly according to the 1999 PTSD SoP as it was in force at the time of the hearing, and if he was not able to succeed in his claim by the application of that SoP, then he was entitled to have the Tribunal address whether he had an entitlement as claimed by reference to the SoP in force at the time of his claim, that is the 1994/1995 PTSD SoP.  For reasons which appear below, the selection of the correct SoP does not make any difference to the outcome of the present application, although it would be an error of law not to have addressed the claim by reference to the 1999 PTSD SoP:  Fogarty v Repatriation Commission [2003] FCAFC 136.  Counsel for the applicant in reply did not pursue any complaint that the Tribunal had applied the wrong SoP.

12                  The applicable SoP for the condition of alcohol abuse at all times is SoP No 5 of 1994 (the alcohol abuse SoP).

the tribunal’s reasons

13                  The Tribunal’s reasons indicate that it proceeded to address the claims on the basis that the applicant does suffer from PTSD and alcohol abuse (despite the respondent not conceding that the applicant suffers from PTSD).  The Tribunal then recited the applicant’s versions of the events which led to the electrocution claim; the ‘Sea Venom incident’; and the incident in New Guinea when he had to defend a property during a riot in a situation which he described as life threatening.  The New Guinea incident did not occur while the applicant was rendering eligible law service or defence service.

14                  The Tribunal did not consider that the New Guinea incident was relevant to the claims before it.  That was because the Tribunal noted the applicant’s claim to be that his PTSD and his alcohol abuse were attributed to the Sea Venom incident or to the Sea Venom incident in combination with the electrocution incident.   No submission was made that the Tribunal erred in that regard.  It is not necessary therefore to further refer to the New Guinea incident.

15                  The Tribunal then referred to the relevant legislation.  In particular, it referred to the onus of proof as explained in s 120(1) and (3) and s 120A(3) of the VE Act.  It then referred to each of the SoPs upon which its decision was based.  Each identified the factors which as a minimum must exist before a reasonable hypothesis has been raised connecting PTSD and alcohol abuse respectively with the circumstances of the applicant’s operational service.

16                  Under the 1994/1995 PTSD SoP, those circumstances are:

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

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

(c)           inability to obtain appropriate clinical management for post traumatic stress disorder.’

The term ‘experiencing a stressor’ is defined in cl 4 of the 1994/1995 PTSD SoP to mean:

‘(a)      the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and

(c)               the person’s response to that event involved intense fear, helplessness or horror;’

17                  For the purposes of considering the claim based upon alcohol abuse, again the Tribunal identified the facts which as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of operational service.  It relevantly extracted those circumstances as including:

‘…

(a)     experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or …

(b)          …

(c)          experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or …

…

3.         The factors set out in paragraphs 1(c) to 1(e) apply only where:

(a)          the person’s psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related; and

(b)          the relationship suggested between the psychoactive substance abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.’

The expression ‘stressful event’ is defined in cl 4 of the alcohol abuse SoP in the following terms:

‘4.        “stressful event” means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.’

18                  The Tribunal described the hypothesis put forward on behalf of the applicant in respect of the Sea Venom incident as being that he saw the pilot unsuccessfully struggling to escape from the cockpit of the crashed Sea Venom, leading to him suffering from PTSD and/or alcohol abuse, or leading to the clinical worsening of PTSD and/or alcohol abuse that he had already suffered as a result of the electrocution incident.  The Full Court had noted that the Tribunal had rejected the hypothesis that the Sea Venom incident had led to clinical worsening of PTSD and alcohol abuse resulting from the electrocution incident.  It did not regard its approach in that respect as erroneous in law.  Hence, the ‘clinical worsening’ hypothesis was not one which the Tribunal regarded as being necessary to further address.  Counsel for the applicant did not contend it was wrong for the Tribunal to have taken that step.

19                  The Tribunal proceeded on the basis that the applicant does suffer from PTSD and alcohol abuse.  It described the only issues left to be determined as being:

‘… whether Mr Hill experienced a stressor by witnessing the Sea Venom incident and whether that experience led to his current conditions of PTSD and alcohol abuse.’

20                  The Tribunal then addressed what, if anything, the applicant had seen or experienced in relation to the Sea Venom incident.  He had not mentioned it when he first made his claim in September 1997, or when examined by a psychiatrist in November 1997, and had not done so until questioning in the course of the hearing before the Veterans’ Review Board in September 1998.  The Tribunal noted that there was considerably more evidence on the issue at the hearing than had been available to the Tribunal at the earlier hearing.  It recited that evidence.  It accepted particular evidence about the incident, including from the pilot. 

21                  As a result of its consideration of the evidence, the Tribunal accepted that a Sea Venom aircraft appeared to land normally on HMAS Melbourne, but an arrestor wire ceased to function in the course of the landing and the aircraft therefore proceeded to move forward down the deck at some speed.  The pilot applied full power in an endeavour to resume flight, but the problem arose too late for that to be done.  In the space of two or three seconds, the aircraft moved forward along the deck and fell into the sea.  It did not remain hooked to the ship in any way.  As it was falling from the deck, the pilot gave the ‘eject’ direction.  The canopy was jettisoned and then the pilot ejected just about when the aircraft hit the ocean.  He was subsequently rescued.  The observer officer apparently also managed to eject, but only more belatedly, and did not successfully do so.  He was drowned.  The pilot when ejecting hit the water about 150 feet ahead of HMAS Melbourne.  Upon impact with the sea, the wooden fuselage of the aircraft broke up.  It then took about 30 seconds for HMAS Melbourne to go past the debris of the aircraft which was by then astern of the ship.  At the time the HMAS Melbourne was moving at about 20 knots in the same direction as the aircraft were landing.  The Tribunal found that if the applicant was where he described on HMAS Melbourne at the time of the incident, he could not have had a line of vision to the flight deck and he could not have seen the aircraft go over the end of the flight deck.  There were also numerous inconsistencies of detail between what the applicant described having seen, and what the Tribunal in fact found to have occurred.

22                  The Tribunal proceeded from those findings to the following conclusion:

‘The Tribunal is satisfied beyond reasonable doubt that Mr Hill did not see the Sea Venom incident.  That is why it did not assume much importance in the first 12 months after he made his claim and why he felt no intensity about it.’

23                  Based on the evidence of two psychiatrists, the Tribunal apparently accepted that the applicant believes that he saw the Sea Venom incident, which as noted he described graphically but incorrectly.  It considered that he may have confused the Sea Venom incident with an incident on 12 February 1966 when a Gannet 858 aircraft landed on HMAS Melbourne off Jervis Bay, and somehow the aircraft lost control and became suspended precariously partially off the deck from an arrestor wire.  In that incident, both the pilot and crew were recovered unhurt.

24                  In the light of those findings, the Tribunal concluded:

‘The hypothesis linking Mr. Hill’s PTSD and alcohol abuse with the Sea Venom incident is not reasonable.  Neither the SoP for PTSD nor the SoP for alcohol abuse are satisfied because in Mr. Hill’s case he did not experience a stressor nor a stressful event during the Sea Venom incident and he certainly did not have a response involving intense fear, helplessness or horror, nor subjective symptoms of increased stress.’ 

The Tribunal then affirmed the decision to reject the claim for disability payments for alcohol abuse or PTSD or electrocution.

consideration

25                  The argument of the applicant on this application is founded in large measure upon the assertion that the Tribunal failed to follow the decision-making process required by ss 120 and 120A of the VE Act as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio).  The Full Court (Beaumont, Hill and O’Connor JJ) at 97 – 98 described the steps to be taken where there is a claim in respect of incapacity for injury or disease which attracts those provisions.  Their Honours said:

‘At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, 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).  If no such SoP is in force, the hypothesis will be taken not to 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 ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it would 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 to 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.

26                  The Tribunal did not expressly take those steps.  It identified the hypothesis put forward by the applicant connecting his diseases with the circumstances of his operational service in the manner above.  It did not consider the issues of whether he suffered a stressor by witnessing the Sea Venom incident and whether that experience had led to his current conditions of PTSD and alcohol abuse in the manner prescribed by s 120(1) and (3) as explained in Deledio.  It simply proceeded to find what had happened in the Sea Venom incident, including that the actual events differed in significant respects from the evidence given by the applicant about it.  Its next step was to conclude, beyond reasonable doubt, that the applicant did not see the Sea Venom incident as he claimed, and to explain why nevertheless the applicant may have believed that he saw what he described.  From that finding, the Tribunal returned to the hypothesis which it first identified and concluded the hypothesis is not reasonable as set out in [24] above. 

27                  Counsel for the respondent submitted that, in a matter such as the present where there is an SoP in force, the four steps described in Deledio could be reduced to two, in effect by telescoping the first three steps into one.  The two questions then posed become:

(1)               Did the material before the Tribunal raise or point to an hypothesis connecting PTSD and/or alcohol abuse with the applicant’s service that was consistent with the relevant SoP?

(2)               Was the Tribunal satisfied beyond reasonable doubt that the factual foundation for any hypothesis connecting PTSD and/or alcohol abuse with the applicant’s service was displaced?

28                  However the Deledio requirements are expressed, I do not consider the Tribunal’s reasons have followed them.  As Deledio makes clear, it is only at step four (or at the second stage of the two stage inquiry posited by counsel for the respondent) that any factual findings are required. 

29                  Deledio makes clear that s 120A did not disturb the approach to s 120(1) and (3) as explained in Byrnes, in particular at 570 – 571.  Section 120(3) requires the decision-maker to decide whether, on the facts raised by the material (without proof of facts being an issue at that point), there is a reasonable hypothesis connecting the applicant’s injury or disease with war service.  It will not do so only if the raised facts, or some of them, are contrary to known scientific facts or are obviously fanciful or untenable.  If a reasonable hypothesis is raised, then s 120(1) will result in the claim succeeding unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt, or the truth of another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving the hypothesis.  The SoP regime introduced by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth), as Allsop J (with whom Emmett J agreed) explained in Gorton at 335, [58], is to secure a sound and current medico-scientific foundation for identifying the minimum factors relevant to the issue of the causal connection between service and injury or disease.  It is a means of identifying whether the hypothesis is contrary to known scientific facts, or is obviously fanciful or untenable.  To that extent, s 120A prescribes the perimeters within which the step posed by s 120(3) may be addressed, at least in the context of medico-scientific issues.

30                  However, at the point of addressing whether there is an hypothesis connecting the applicant’s diseases, or either of them, with the circumstances of his operational service, the Tribunal appears to have consciously done so by reference to findings of fact, rather than by reference to the facts raised by the applicant.  It has determined whether the SoPs are satisfied, that is whether the hypothesis put forward by Mr Hill fits or is consistent with the template of each SoP, by making findings of fact about what the applicant in fact experienced or did not experience in relation to the Sea Venom incident.

31                  Counsel for the respondent contended that the Tribunal’s process involved in essence skipping over, or assuming in the applicant’s favour, the first three steps in Deledio (or the first of the two alternate questions she posed), and addressing only the fourth step (or her second suggested question) to reach its conclusion.  The conclusion that the applicant did not see the Sea Venom incident is therefore said to be a conclusion in terms of s 120(1) of the VE Act, that is that it has been proved beyond reasonable doubt that a fact relied upon to support the hypothesis is not true.

32                  In an appropriate case, such a course of action is available to the Tribunal.  It is not obliged to proceed from step to step in any mechanical manner:  per Spender, Tamberlin and Kenny JJ in Dunlop v Repatriation Commission [2003] FCAFC 201.  In Repatriation Commission v Crane [2004] FCAFC 86, Spender, RD Nicholson and North JJ at [51] made the point that the formulation of the requirement of the Act by the Full Court in Deledio were not meant to be a substitution for the requirements of the VE Act.

33                  However, I do not accept that the Tribunal assumed favourably to the applicant that the step or steps referred to by s 120(3) as explained in s 120A(3) are satisfied.  It expressly said the hypothesis put forward by the applicant is not reasonable.  That finding was made at the conclusion of its reasons, and after making its findings of fact.  The finding was, moreover, made expressly by reference to the terms of the 1994/1995 PTSD SoP and the alcohol abuse SoP.

34                  The respondent alternatively contended that, in any event, the finding of the Tribunal that it was satisfied beyond reasonable doubt that the applicant did not see the Sea Venom incident necessarily means that his claims must fail.  It is a finding, so it was put, that one of the facts necessary to support the applicant’s hypothesis connecting his diseases to his operational service had been disproved beyond reasonable doubt.

35                  To address that contention, it is necessary to identify as clearly as possible what the applicant’s hypothesis was.  In his written submissions his counsel described it as the applicant having:

‘witnessed a ditching at sea by a “Sea Venom” where the aircraft had broken up on impact and the observer was killed and his body never recovered’.

Hence, he contended, the hypothesis was broad enough to encompass the applicant having been on board HMAS Melbourne at the time – there is no doubt that he was – and having seen ‘segments of the crash as incomplete as this may have been’.  The Tribunal is said to have adopted too narrow an approach to the hypothesis put forward by the applicant:  cf Repatriation Commission v Whetton (1991) 31 FCR 513 at 521.  In terms of the SoPs identified by the Tribunal, the applicant’s hypothesis was said to be that he had experienced, or witnessed or partly witnessed, and been confronted with the Sea Venom incident involving the death of the crew member of the Sea Venom aircraft, and that he had thereby felt helplessness and horror, and (for the alcohol abuse SoP) subjective symptoms of increased stress.

36                  In my judgment, the applicant’s material raised the hypothesis connecting his diseases with his operational service by reason of him seeing the Sea Venom aircraft at least at a time where he realised the crew member was unable to survive and then subsequently was lost.  He described the aircraft going over the side of the flight deck, apparently suspended by the arrestor hook, then the aircraft falling into and floating on the ocean adjacent to the ship (which by then was stationary), and further seeing a crew member directly below where the applicant was standing trying to punch his way out through the canopy until the aircraft sank.  In his cross-examination, whilst he adhered to his evidence that he saw the aircraft go over the side of the ship, he accepted that the canopy may have then been jettisoned.  

37                  The claim about witnessing the Sea Venom incident first emerged during the hearing before the Veterans’ Review Board on 18 September 1998.  The applicant firstly described the general tension of operational service in Vietnam at the time, and how a landing aircraft went over the side of the deck and the pilot drowned.  It then took some time before the Sea Venom incident was able to be confirmed as having occurred at all.  When the review of the decision was first before the Tribunal, the applicant’s counsel described the applicant as having witnessed the aircraft toppling over the side of the ship and the pilot being unable to escape from the cockpit.  The applicant’s evidence was that seeing the person trying to punch his way out of the canopy whilst the aircraft was still floating was very disturbing.  He said he was affected because he saw a person ‘fighting and struggling and trying to save their own life and they had no show’ and he could do nothing about it.  He said the helplessness of being merely a bystander was disturbing.

38                  In my judgment, the Tribunal has accurately identified the hypothesis put forward by the applicant, namely his seeing the pilot (or a crew member) unsuccessfully struggling to escape from the cockpit of the Sea Venom when it had fallen into the sea caused, or aggravated, his diseases.

39                  At the time of the first Tribunal hearing, the Tribunal concluded:

‘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 point however to Mr Hill’s having a response that involved intense fear, helplessness or terror.’

40                  The Tribunal made those findings, noting that the applicant’s recollection was inconsistent with the historical records of it.  It found, alternatively that the truth of a fact inconsistent with certain hypotheses had been proved beyond reasonable doubt, namely that the applicant did not see a person trying to get out of the aircraft as it sank.

41                  In the first Hill decision, von Doussa J said at 303 – 304, [36]:

‘The respondent under s 120(1) carried the burden of establishing that the relevant fact did not occur.  The relevant fact in this case would be that the veteran had experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury, or that the veteran’s response involved intense fear, helplessness or horror.’

His Honour did not regard the finding that there could not have been any person trapped under the canopy of the aircraft as described by the applicant as disproving those facts, but simply as demonstrating that the applicant’s perception on a matter of detail would be wrong.

42                  Assuming that the 1994/1995 PTSD SoP was the one to be applied, and assuming the hypothesis was reasonable the ultimate question under s 120(1) for the Tribunal was whether it has been proved beyond reasonable doubt that the applicant did not, in the Sea Venom incident, experience a stressor, that is whether he did not experience, witness or be confronted with an event which involved actual or threatened death or injury to others, and whether he did not have a response involving intense fear, helplessness or horror in the manner he asserted.  Under the alcohol abuse SoP, the relevant question was whether it had been proved beyond reasonable doubt that the applicant did not, in the Sea Venom incident, experience a stressful event, that is whether he did not experience an incident in which there were external stimuli that would result in psychological stress, and where there were subjective symptoms of increased stress in the manner he asserted.

43                  The Tribunal’s reasons are not satisfactory.  It did address the hypothesis put forward by the applicant under s 120(3), having regard to the two SoPs identified.  It found the hypothesis was not reasonable, on the basis of findings of fact.  That was erroneous.  But, immediately before its conclusion in relation to the SoPs, it made a finding of fact.  It was satisfied beyond reasonable doubt that the applicant ‘did not see the Sea Venom incident’.  It noted the medical evidence was that his recollection of the incident is ‘probably a compilation of his traumatic dreams and reality’.  If the hypothesis the applicant put forward was (as he said) that he saw the Sea Venom incident then, even if his recollection about its details were erroneous, a fact upon which the hypothesis was based would have been disproved beyond reasonable doubt.  The essence of the claim was that he saw a person unable to escape and unable to avoid drowning in the incident, and that he was affected by what he saw.  In my view, the Tribunal has found beyond reasonable doubt that the applicant did not see what he now recalls having seen in that essential respect.

44                  I confess to some unease in coming to that conclusion about what the Tribunal found.  The Tribunal noted the medical evidence that the applicant’s memory is probably partly a compilation of reality, as well as his dreams.  It does not, however, explain what it understood by that evidence.  Whilst rejecting the applicant’s evidence about the details of what he saw, it does not expressly eliminate beyond reasonable doubt that he saw or experienced some part of the incident, even if he was physically unable to have seen the aircraft run off the deck.  The Tribunal does not explore where he might have gone in the 30 seconds or so whilst (on its findings) the ship passed the aircraft then in the sea, or what might then have been seen of the crew member who had only (it found) belatedly ejected and was about to drown.

45                  However, such matters are matters for the Tribunal.  Its reasons for decision are to be read sensibly and not with an eye attuned to the perception of error:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272.   I think its general finding, beyond reasonable doubt, that the applicant did not see the Sea Venom incident is a finding that the applicant did not, as he claimed, see the pilot or a crew member of the aircraft somehow struggling unsuccessfully to survive.  That is not a matter of detail.  Taking the hypothesis as broadly as possible, it involves the applicant claiming to have seen something like that and feeling both horror and helplessness at his inability to assist.  The Tribunal’s finding, in my judgment, is that he did not see something like that.  As its finding was made beyond reasonable doubt, s 120(1) means there was no sufficient ground for making the determination.

46                  Finally, counsel for the applicant contended that the Tribunal had erred in law because it could not, on the evidence, have been satisfied that the applicant did not see the Sea Venom incident (or at least some part of it).  Clearly, there is no error of law in making a finding which is open to debate, or even one which is against the apparent weight of the evidence:  Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410 – 411; Repatriation Commission v Thompson (1988) 44 FCR 20; Willcocks v Comcare (2001) 66 ALD 119.  Indeed, there is no error of law simply in making a wrong finding of fact:  Waterford v The Commonwealth (1987) 163 CLR 54 per Brennan J at 77.

47                  The question of whether there is any evidence of a particular fact is a question of law:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 – 356.  So too, as Mason CJ there said, is it a question of law whether a particular inference can be drawn from facts found or agreed.  Hence, his Honour concluded:

‘Thus, at common law … want of logic is not synonymous with error of law.  So long as there is some basis for an inference – in other words the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.’

48                  The applicant’s contention is that the finding of the Tribunal beyond reasonable doubt that the applicant did not see the Sea Venom incident is ‘perverse’.  The conclusion was drawn from primary evidence.  I take the submission to be that the conclusion was not reasonably open to the Tribunal on the primary facts which it found. 

49                  The submission is more difficult to consider by reason of the reverse criminal onus of proof imposed by s 120(1) of the VE Act.  The task is not simply to determine whether there was evidence from which the Tribunal could make its primary findings of fact about what happened in the Sea Venom incident, and its conclusion, on the balance of probabilities.  The primary findings of fact appear each to be significant to the consequential conclusion, expressed to be beyond reasonable doubt, that despite his evidence the applicant did not see the Sea Venom incident.  It was the detail of those primary findings, and their inconsistency with the evidence of the applicant on those details, which largely led the Tribunal to its consequential conclusion.

50                  The Tribunal referred in some detail to the evidence it received about the Sea Venom incident, including statements of the pilot of the aircraft and of an observer in a rescue helicopter responsible for observing aircraft landings at the time, as well as the material contained in a report from Commodore Mulcare on HMAS Yarra, following the HMAS Melbourne.  Commodore Mulcare’s report contains further statements confirming a crew member ejected the canopy of the aircraft, and that both the pilot and the crew member ejected from the aircraft.  One witness describes the pilot as ‘floundering’ and another as ‘splashing in the water’.  All witnesses described the crew member as lying inert, face down in the water, before sinking below the surface.  The observer in the helicopter was a little vague about where the crew member had landed after ejecting, except to say that he was in or in line with the splash of the aircraft.  The pilot of the helicopter also saw both the pilot and crew member eject from the aircraft, and described the crew member then as ‘floating inverted and vertical amongst the wreckage with his parachute deployed’.  In the confusion of the moment, precise and accurate recollection of detail on the part of the applicant (or others), is not necessarily to be expected.  There is some scope in that material to have tied the applicant’s observations of the crew member (as he described them) to the position of the crew member in or in the vicinity of the wreckage of the aircraft, and to have been confused about which of the pilot or crew member was floundering.  However, the evidence clearly points firmly to the canopy of the aircraft having been ejected by the crew member, and of both the pilot and the crew member having operated their ejector seats by about the time that the aircraft hit the sea. 

51                  Counsel for the applicant also pointed out that a report of a board of inquiry into the Sea Venom incident dated 29 April 1966 (the day after the Sea Venom incident), concluded that the crew member did not use the ejector mechanism, and that:

‘He was either injured on impact and therefore unable to release himself or he tried to extricate himself while in the water and failed.  There is no firm evidence that the observer tried to eject before impact.’

As is apparent from that report, it was prepared on considerably less detailed information than the report prepared some time later by Commodore Mulcare at the behest of solicitors for the respondent.  Commodore Mulcare also addressed the capacity of the applicant to have seen the Sea Venom incident.  Given his location at the time, he said that the applicant would not have had sufficient time to have moved from his work position to see the aircraft run over the edge of the flight deck.  He does not assert that there would not have been time for the applicant to have then moved to a position where he could have seen the wreckage of the aircraft in the sea, and indeed another witness was able to move from the sick bay area below the flight deck to a position where he did see the aircraft wreckage passing alongside the ship.  However, the Tribunal accurately noted Commodore Mulcare’s evidence, namely that the applicant could not have seen the flight deck or the aircraft go over the end of the flight deck.  The Tribunal has not drawn from that evidence that the applicant could not have seen the wreckage of the aircraft in the sea.

52                  Moreover, there was additional information to which the Tribunal referred.  That included the fact that the applicant did not mention the Sea Venom incident when he first made his claim in September 1997, or until his evidence before the Veterans’ Review Board in September 1998.  It included the reference to the medical evidence as to how the applicant may have come to believe that he saw the Sea Venom incident in the way in which he described it although he had not done so, and tied with that medical evidence was the further information that the applicant had on 12 February 1966 witnessed a Gannet aircraft run off the flight deck of HMAS Melbourne and hang precariously by the arrestor wire over the side of the ship for some little time.  Consequently, the Tribunal concluded that the applicant had confused the Sea Venom incident with the Gannet incident.

53                  Even though another decision-maker may not, on the whole of the material, have been persuaded beyond reasonable doubt that the applicant did not see the Sea Venom incident as he described, and in particular did not see that which, taken broadly, I have identified as the hypothesis raised by the material he presented, I am unable to conclude (as counsel for the applicant urged) that the Tribunal’s satisfaction beyond reasonable doubt that the applicant did not see the Sea Venom incident was ‘perverse’.  The weight the Tribunal gave to particular evidence was a matter for it.  It has not been shown to have misapprehended the reverse criminal onus of proof imposed by s 120(1) of the VE Act.  In my judgment, it has not reached a conclusion which was not reasonably open to it on the evidence.

54                  The question the Tribunal answered involved addressing whether a fact upon which the applicant’s claim was made was disproved beyond reasonable doubt.  The fact that it erred in addressing the decision-making steps does not mean that, within its process, it has not happened to address the ultimate question.  In my judgment, it has done so.

55                  Accordingly, notwithstanding the errors of law in the Tribunal’s approach to which I have referred, it has in a way which is adversely decisive of the applicant’s claim addressed a final step in the process in a correct manner.  That is sufficient for the application to fail.

56                  I do not consider the application of the 1999 PTSD SoP could make any difference to the outcome.  It relevant differs from the 1994/1995 PTSD SoP in two respects.  Firstly it uses the expression ‘severe stressor’ rather than ‘stressor’ in the description of the factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting the applicant’s PTSD with the circumstances of his service.  Secondly, although the definition of ‘experiencing a severe stressor’ is in essence the same as par (a) of the definition of ‘experiencing a stressor’ in the 1994/1995 PTSD SoP, par (b) of that definition is removed, and examples of stressors are given.  There is no doubt that, under the 1999 PTSD SoP, observing the Sea Venom incident would amount to witnessing a severe stressor.  The same issue would nevertheless arise:  once the hypothesis of the applicant was accepted as reasonable, has it been shown beyond reasonable doubt that a fact upon which the hypothesis is based (that the applicant did see the Sea Venom incident) did not exist.  The finding of the Tribunal is that the applicant did not see the Sea Venom incident, including the way in which the crew member died.

57                  For those reasons, in my view the application must be dismissed.  I so order.

Associate:

Dated:              30 June 2004