Capka and BHP Petroleum Pty Ltd
[2003] AATA 845
•28 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 845
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/155
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID VACLAV CAPKA Applicant
And
BHP PETROLEUM PTY LTD
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberDate28 August 2003
PlacePerth
Decision The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”), to pay compensation to the applicant in accordance with the Act, in respect of a mental injury, namely, major depression, which has resulted in his continuing total incapacity for work from 21 August 2000.
The Tribunal orders, pursuant to s92(1) of the Act, that the respondent pay the applicant’s costs of these proceedings, such costs, in the absence of
agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
...........(sgd S D Hotop).....................
Deputy President
CATCHWORDS
COMPENSATION - seafarers – applicant employed by respondent as seafarer from 1994 – applicant employed as Second Cook on vessel – applicant left vessel and ceased employment in August 2000 – applicant diagnosed with major depression in September 2000 – whether applicant suffering from a mental “ailment” – whether applicant’s major depression a “disease” – whether applicant’s major depression contributed to in material degree by employment – whether applicant’s major depression an “injury” – whether applicant suffered major depression as result of failure to obtain promotion – whether compensation payable for applicant’s major depression – whether applicant’s major depression resulted in incapacity for work, or impairment – whether applicant’s major depression caused by his serious and wilful misconduct
Seafarers Rehabilitation and Compensation Act 1992 ss 3, 8, 12, 24, 25, 26
REASONS FOR DECISION
28 August 2003 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberIntroduction
1. David Vaclav Capka (“the applicant”) has applied to the Tribunal for review of a reviewable decision deemed, pursuant to s 79(6) of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”), to have been made by BHP Petroleum Pty Ltd (“the respondent”) under s 78 of the Act disallowing his claim for compensation under the Act.
2. At the hearing the applicant was represented by Ms A Crichton-Browne, solicitor (on 24 and 25 October 2002) and Mr J Johnson, solicitor (on 16-18 December 2002 and 17 January 2003), and the respondent was represented by Mr G Hancy of counsel. The Tribunal had before it the documents (“T documents”, T1-T38) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicant (A1-A12) and by the respondent (R1-R20). Oral evidence was given by the applicant and by the following additional witnesses: Ms Michelle Capka, Mr Graeme Watson, Mr Ge van Ierland (Clinical Psychologist), and Dr Dennis Tannenbaum (Psychiatrist) (who were called by the applicant), and Mr Barry Ashwin, Ms Lina Dickins, Mr John McColl, Mr Murray McColl, Mr Alfred Dinnison, Mr Anton Martin, Mr Bruce Doleman, Mr Theo De Vries, Mr John Mulheron and Dr Zelko Mustac (Psychiatrist) (who were called by the respondent).
The Factual Background
3. The background facts, which are not in dispute and as found by the Tribunal on the basis of the T documents and exhibits, are as follows.
4. The applicant was, at all material times, employed by the respondent as a Second Cook on board the vessel “Griffin Venture”.
5. On 17 December 1997 the applicant made a claim for compensation under the Act in respect of “severe anxiety” said to have been caused by an explosion on 10 November 1997 in the engine room of the vessel “Griffin Venture” on which he was employed at that time.
6. A First Medical Certificate dated 4 December 1997 was provided by Dr G Shulman who provisionally diagnosed the applicant’s condition arising out of the abovementioned explosion incident as “Post Traumatic Stress Disorder”, certified him as unfit for work, and referred him to Mr Chris Perrier, Psychologist.
7. On 6 January 1998 Dr J Bateman certified the applicant as fit for work but requiring further treatment, and advised him to continue to take anti-depressant medication.
8. In a report to Dr Shulman dated 12 January 1998 (Exhibit A8), Mr Perrier confirmed that the applicant was suffering from Post Traumatic Stress Disorder (“PTSD”).
9. On 26 May 1998 a determination was made on behalf of the respondent disallowing the applicant’s abovementioned claim for compensation.
10. On 2 June 1998 the applicant formally requested, pursuant to s78(2) of the Act, a reconsideration of the abovementioned determination. Such reconsideration not having been completed by the end of the period prescribed by s79(1) of the Act, a decision disallowing the applicant’s claim was, pursuant to s79(6) of the Act, deemed then to have been made. The applicant did not make an application to the Tribunal for review of that deemed decision.
11. On 26 October 2000 a claim for compensation under the Act was lodged with the respondent on behalf of the applicant in respect of injury/illness described as “depression, anxiety and stress condition” said to have been caused by a “general course of intimidation by other workers” on board the vessel “Griffin Venture” in the course of performing his employment duties on board that vessel. In the claim form it was indicated that the applicant first became aware of the injury/illness in April 2000, that he first reported it to Murray McColl (an Offshore Installation Manager with the respondent) in August 2000, and that he ceased work as a result of that injury/illness on 21 August 2000. The claim for compensation was accompanied by 3 reports by Dr Dennis Tannenbaum, Psychiatrist, dated 13 September 2000, 21 September 2000 and 10 October 2000 (the contents of which will be set out later in these reasons).
12. The abovementioned claim was not determined by the respondent by the end of the period prescribed by s73(2) of the Act and, accordingly, a determination disallowing that claim was, pursuant to s73(6) of the Act, deemed then to have been made. By letter dated 20 December 2000 the applicant’s solicitors formally requested, pursuant to s78(2) of the Act, a reconsideration of the deemed determination disallowing the applicant’s claim. Such reconsideration not having been completed by the end of the period prescribed by s79(1) of the Act, a decision disallowing the applicant’s claim was, pursuant to s79(6) of the Act, deemed then to have been made. The applicant subsequently lodged with the Tribunal an application for review of that deemed reviewable decision.
The Applicant’s evidence
13. The applicant confirmed that he had signed a statement of evidence in this matter be verified the contents of that statement. The contents of that statement, which was filed on 21 June 2002 and which was tendered in evidence (Exhibit A2), are as follows:
“ISSUES RAISED BY THE APPLICANT
Employment History
1.I have worked as a second cook on offshore vessels for 15 years.
2.I am required to live on the ship whilst at work. Generally I worked for one month before having one month living at home.
3.I have worked for BHP from November 1994.
4.Whilst employed by the Respondent I have always been employed as either (sic) a second cook working on board its offshore vessels.
5.Since about December 1994 I have worked for the Respondent upon the Griffin Venture (‘GV’).
6.With the exception of Rob Burt who was replaced by Graeme Watson who joined the crew as Chief Cook in about 1998, I have always worked with the same crew.
7.I worked on a month on/month off roster whilst on board the GV. By this I mean that I lived and worked on the Griffin Venture for one month and then had the following month off from work and lived at home.
8.As a second cook I performed general duties such as preparing food, cleaning the galley and assisting the chief cook.
9.When I initially joined the GV as second cook in December 1994, I was responsible for cleaning the dining room, mopping the alleyways, cleaning the smoke room and lounge.
10.Even though I was content to do the above duties as part of my work, it was simply too much for a second cook to do, so in 1996, the stewards took over the cleaning duties.
11.The stewards who took over these duties were:
a.Bruce Doleman
b.John Mulheron
c.Bill (agro) Gaudry
d.Bob Scott
e.Butch-Alf Dinnison.
12.The stewards taking over the second cook’s cleaning duties caused a confrontation between the stewards and the cooks but I had nothing to do with it.
13.In asking the stewards to assist in the cleaning, half of the workload was taken off me.
Explosion in 1997
14.In November 1997 I was working on the Griffin Venture when a turbine on it exploded which in turn caused another turbine to explode and caused a serious fire.
15.When the explosions happened, the crew made their way to the life boat station as required by the safety procedures.
16.At the life boat station, I tried to unhitch the life boat off the ship but couldn’t because the rubber fuel floating hose was in the way.
17.The rubber fuel floating hose was used to pump oil from the GV to another vessel. When not in use, the fuel hose sat in the water under the position of the life boats.
18.At this time, the life boat station was filling with smoke and we were all told to move up to the helipad.
19.I knew things were pretty bad because Terry Hewitt, who was the OIM (Rig Superintendent) asked if anyone had any ideas or suggestions on how to get everyone off the ship.
20.I wanted to jump over the side and swim, I was that scared.
21.I was petrified because I could not escape the ship and felt trapped, scared, my heart was racing and I thought that there was a good chance I would die.
22.The crew hosed down the walls around the engine room of the ship continuously. I think we did this more to keep our minds off things than for any other reason.
23.I was given the job of hosing down the gas bottles, along with other crew members.
24.The crew continuously hosed the ship and gas containers. This took approximately seven hours.
25.During this time, I was feeling physically weak and lost as my normal duties were in the kitchen, and I just wanted to get off.
26.I was feeling very affected by the smoke and scared because no one knew if the fire was out, how much damage it had caused or when we would be able to get off.
27.For all of that time, I was on deck and feeling very anxious and scared.
28.I eventually went to the galley and prepared sandwiches for the remaining crew who were hosing the walls.
29.There was no power on the ship for two weeks.
30.I had to bathe in my room from a bucket filled with water drawn from over the side of the ship. I also had to go to the toilet in a bucket. There was no electricity, or air conditioning. As we were off the coast of Karratha it was very hot.
31.Other crew members were evacuated from the ship almost immediately following the explosion.
32.We were told that we would all be leaving the ship at some point but we didn’t know when.
33.I was one of the last people to leave the ship. As I was second cook, I had to be there to supply food to the remaining crew. I stayed on the ship for about 12 days after the explosion. I was one of the last people to be evacuated. During those 12 days I was scared that the whole ship would blow up. I kept thinking that the life rafts couldn’t be used and if it did blow up we couldn’t escape from the ship.
34.I know that after the explosion, BHP conducted an investigation and, as I understand it, they didn’t release the report.
35.For the first time after the explosion I returned home from the Griffin Venture on 20 November 1997.
36.I went to see my GP, Geoffrey Shulman on 4 December 1997 because I had continued to feel shaky, scared and constantly nervous ever since the explosion. Dr Shulman gave me a three week medical certificate for Post Traumatic Stress Disorder and referred me to see Dr Perrier (Psychiatrist) (sic). He also prescribed Temaz 10mg.
37.I saw Dr Perrier on 4 December 1997.
38.I saw Dr Perrier approximately 10 times between 4 December 1997 and 7 January 1998.
39.Dr Perrier treated me by counselling me and I think prescribing some tablets. I attended each session with Dr Perrier and took the drugs he prescribed as directed.
40.In about Christmas 1997, Lina De Beer (the Pay Clerk at BHP) called me at home to tell me that I needed to go to a vessel other than the Griffin Venture to work because I had not completed my 28 day shift on the Griffin Venture due to the fire. I told her that I needed a break to calm my nerves and that I was going on a holiday.
41.I didn’t want to tell Lina that I was seeing a psychiatrist. I was embarrassed.
42.I was hoping that I would be able to find another job somewhere else because the thought of returning to work on the GV made me feel anxious.
43.On 10 December 1997 I received a letter from BHP enclosing a statement that I had made on or about 14 November 1997.
44.I reattended Dr Shulman on 23 December 1997 and he gave me a four week medical certificate for Post Traumatic Stress Disorder.
45.In the beginning of 1998, I was very stressed. I couldn’t help but feel as though something terrible was going to happen if I went back on board the Griffin Venture.
46.I was experiencing problems sleeping and my heart raced when I thought of returning to the GV. I would feel shaky and unable to control my thoughts. I would panic, feel scared, angry and at a loss because I had always worked on offshore vessels and because of the fire and the problems with the life rafts, now I felt unsafe doing that.
47.I can’t recall which date specifically, but on 6 or 7 January 1998, BHP contacted me and said they wanted me back on the GV to work as chief cook.
48.They wanted me to fly to Singapore.
49.I told them that I had not been cleared by my doctor. They asked me to see a BHP doctor, Dr John Bateman.
50.I attended Dr Bateman on 6 January 1998 and he cleared me but told me to keep taking medication which at that time was Luvox (antidepressants).
51.He also said that he wanted to review me again in four weeks time.
52.I boarded the Griffin Venture at Singapore on 7 January 1998. This was the first time that I had boarded the Griffin Venture since the fire.
53.Graeme Watson (‘Graeme’) came on board the GV as chief cook approximately 10 days after I did.
The First Incident of Harassment
54.The first incident of harassment I recall was on the Griffin Venture in about 1995. I was working my 2nd swing when the chief steward (our supervisor) Kevin Wright (‘Kevin’) threw a ‘stores/vegetable order’ at me and told me to fill out the order, which I had never done before. He said it in a forcible manner. It was never the second cook’s job to do and when I told him this, he shoved me up against a microwave.
55.No one else witnessed this.
56.I immediately called an MUA meeting on board and, during that meeting, it became clear that it was the chief steward’s duty to fill stores/vegetable orders.
57.At this meeting, Kevin Wright turned around to me and, in front of everyone, said that he didn’t realise ‘what kind of dumb cunt’ I was.
58.I felt really embarrassed because Kevin said this in front of the other people at the meeting.
59.Present at this meeting were Bill Gaudry, Rob Burt, Kevin Wright and someone else whose name I can’t recall.
The Second Incident of Harassment
60.On most days Dave Williams who was 6 foot 5 inches, Peter Brownett, John Colham, Rick Billingham and Theo De Vries would walk across the floor when I had just mopped it clean and yell ‘fuck’ at me and laugh.
61.This behaviour went on for approximately two years and it seemed that everywhere I went, they would yell ‘fuck’ and then start laughing.
62.Their comments made me feel depressed, useless and hopeless.
63.I reported to John Mulheron (‘Mulheron’), the Chief Steward at that time, that the MUA members and integrated ratings had been walking all over my clean floors and that it was probably to annoy me.
64.Nothing was done about this and I was angry because I had reported it to John Mulheron and nothing had been done, and they knew I had told on them.
The Third Incident of Harassment
65.I recall another occasion in about August 1999 when we had a caterers’ meeting.
66.The meeting was called by Alf Dinnison (‘Butch’) who was a second steward at that time.
67.Present at this meeting were Butch, Graeme, Mulheron and myself.
68.Butch was concerned because Mulheron was going on leave and Bill Gaudry (‘Agro’), who was a steward at that time, would replace him.
69.Butch was concerned about what duties Bill would ask the stewards to perform if Bill became chief steward, because he feared that Bill would try to get him sacked.
70.Graeme and I had nothing to do with the calling of this meeting.
71.We asked Mulheron to go and get Bill for the meeting and when Bill came down, he was very upset and told Butch and myself that he would ‘break our fucking legs and shove them up our arse’. He also called us ‘fuckwits’ and ‘wankers’.
72.I was shaking and felt very threatened and intimated at that meeting. I also felt scared that once again a crew member was angry at the cooks and nothing would be done about it.
73.Nothing was reported about Bill’s conduct during that meeting.
The Fourth Incident of Harassment
74.I remember that once Bruce Doleman (who was Chief Steward at that time) decided to call a meeting to discuss whether the GV would be tied up to another oil vessel.
75.By this I mean that the GV would be tied to another vessel and pump oil into it. Bruce wanted the crew to refuse to tie the GV up because they wanted to register their protest to overseas ships visiting the Australian coast.
76.The cooks on the GV, who were Rob Burt, Mike Jones, Anton Martin and myself didn’t want to vote on this issue because our bonus system was calculated with reference to safety and the environment and we felt that refusing to tie up would badly affect our bonus.
77.For this reason, we refused to vote against tying up the vessel and were seen by the rest of the crew as (for want of a better word) arseholes.
78.Aside from the previous harassment, I believe this was the incident that really separated the cooks apart from the rest of the crew.
The Fifth Incident of Harassment
79.There were many instances of harassment involving Bill Gaudry but I can’t remember the dates on which they occurred.
80.I recall that on a number of occasions I would be walking along an alleyway and Bill would either walk into me or bump me into the wall.
81.If I was walking behind him he would stop so that I would bump into him or if I went through a door (ie the door at the top of some stairs or the fridge door), he would slam the door in my face.
82.I remember once I was holding a hot coffee and Bill bumped me. He tried to bump the coffee out of my hands and I ended up spilling it on myself.
83.Graeme Watson witnessed Bill doing this to me on at least one occasion.
84.When Bill did this to me I felt scared because I thought he would punch me or cause a fight which in turn would cause me to lose my job. Also my fear was caused by knowing that even if I complained to my superiors they wouldn’t do anything as they were also scared of Bill.
85.I learnt to lean up against the wall to let him pass so that he didn’t push me into the wall.
86.I felt very intimidated by Bill and I felt as though I couldn’t frequent the same area as him. I felt very restricted on where I could go in the ship.
87.The stewards and caterers were meant to help one another but Bill refused to help.
The Sixth Incident of Harassment
88.As second cook, I started work at 5:00am and worked til 1:00pm. I then had a 2 hour break from 1:00pm to 3:00pm and then worked from 3:00pm to 7:00pm.
89.Between the hours of 1:00pm and 3:00pm the crew members were expected to attend courses on safety and company presentations etc.
90.I once approached the Captain John McColl and told him that I didn’t think it was fair that we had to do courses in the afternoon when it was our break time off.
91.The Captain responded by saying that he didn’t ‘give a fuck’ what I thought. I said that I didn’t give a ‘fuck’ either and told him that the cooks would not be going to these courses.
92.I then found out that the cooks didn’t need to attend these courses anyway but felt as though the cooks were not being kept informed by the Captain or any other senior crew members.
93.This made me feel more alienated from the remaining crew members and also reinforced the fact that they thought we didn’t fit in.
The Seventh Incident of Harassment
94.I remember another occasion, at servery time, when Bill walked into the fridge and shouldered Graeme.
95.By ‘shoulder’ I mean purposely walked into Graeme with his shoulder.
96.He then shut the fridge door in Graeme’s face as Graeme was coming out of the fridge.
97.I also saw him shut a fire door in Graeme’s face going up to the emergency station.
The Eighth Incident of Harassment
98.Bill’s cabin was right next to mine.
99.On numerous occasions Bill would bang on the wall and make noises.
100.Bill would slam doors and bang drawers to keep me awake.
101.Bill once indicated to me that he was taking steroids for his body-building activities. I put the slamming and banging down to what I thought was ‘steroid rage’ even though I didn’t feel any less threatened or annoyed when he was banging everything.
102.I felt scared of Bill because he could get away with doing whatever he wanted and I could not leave or escape.
103.I used to use the gym on board the GV. I frequented the gym approximately 6 times per week.
104.I tried to use the gym when Bill wasn’t there because he would tell me that I was not to use the gym equipment because it was not for my use.
105.I often used the bench press and I needed the leg raiser to do this.
106.At one stage, the leg raiser bit went missing. I knew that Bill had hid this equipment because he knew that I was intending to use it.
107.I approached Barry Ashwin (who was OIM, which is a superintendent) at that time and asked Max, whose last name I don’t know (who was the 3rd or 4th mate at that time), to put a call out on the intercom system requesting the leg raiser to be returned.
108.I then went to Mulheron and told him that the leg raiser was missing and that I had reported it to Barry Ashwin.
109.Ten minutes later the leg raiser had been returned.
110.I was very disappointed that for every time I complained to Mulheron about the harassment by Bill that I was experiencing, nothing was ever done.
111.I believe this came down to the fact that Mulheron was Bill’s workmate. I also thought that Mulheron himself was afraid of Bill.
112.I am aware of a previous occasion where Bill used Guy Cameron’s (another crew member) toothbrush to clean his toilet. When Guy complained to Greg Youd, who was the BHP Superintendent, Greg told Bill three times to apologise.
113.When Greg Youd and Terry Hewitt were the BHP Superintendents on board the GV, I never had any problem with them.
114.Terry Hewitt once told us that we were doing our job very well and they liked the idea that we were always coming up with a new menu.
115.Greg Youd once approached me in the smoke room and asked me why the MUA members seemed to single out Graeme and Mick Jones and pick on them. I think he was curious and concerned because Mick Jones had a nervous problem and that the other MUA members knew this.
116.Because of the tooth brush incident, and because Bill’s cabin was right next to mine, I hid my toothbrush.
The Ninth Incident of Harassment
117.Other crew members would bang on my cabin door during my afternoon split shift.
118.They would open my cabin door and switch on the light in the early hours of the morning.
119.When they did this, I felt so alone because I was by myself and felt that everyone was ganging up on me. I also felt that they would get away with whatever they did.
120.They did this I think because they wanted to show that the IRs were senior to the cooks.
121.Their behaviour caused me to lose sleep and also to lie awake with my heart pounding thinking about what might happen the next day. I felt as though my work was suffering because of the lack of sleep I was getting.
122.I reported these incidences of harassment by speaking to Mulheron on 4 or 5 occasions. Nothing was done about it.
123.The stewards were also supposed to clean the MUA members’ rooms but they never did.
124.This kind of behaviour occurred right up to the time of my last shift in August 2000.
125.I also know that just before I left, the crew members were also knocking on the door of another cook called Paul Zalmstra.
The Tenth Incident of Harassment
126.At one stage the cooks and the stewards began to hold morning meetings to discuss working issues. They started to do this because Graeme had complained to senior people in BHP’s Perth Office about the harassment.
127.I mentioned Bill Gaudry at some of these meetings but nothing was ever done about it. I only said something if Bill was not on the ship at the time.
128.By mention, I would say something to Doleman like Bill had been banging on my door when I was trying to sleep.
129.I was often reluctant to speak up about Bill’s harassment because I knew nothing would be done about it.
The Eleventh Incident of Harassment
130.There was a man on board the GV called David Williams. His position on the GV was like that of a labourer.
131.Dave left the GV approximately 18 months before I did.
132.He was about 6’5”.
133.On one occasion, Dave, Mulheron and myself were sitting in the smoke room.
134.Mulheron made some comment directed at me to the effect that I should not have the music too loud when I am in the galley and then Dave said that I had better watch myself otherwise I was going to get my face punched in.
135.I was scared by this comment but tried not to show it. I laughed.
136.Mulheron did not say anything.
137.Once Dave was in the galley where I was working and he turned off the radio. When I told him to leave it alone, he crossed his arms and shoved me in the galley and I was forcefully pushed himself against me (sic).
138.Other crew would have witnessed this event. I don’t recall who they were.
The Twelfth Incident of Harassment
139.When the cooks prepared meals, Theo DeVries (‘Theo’), who was the Chief Integrated Rating, would normally say something bad about the food at meal times. He would ask ‘What shit have we got on today?’
140.Mulheron would be serving the food and say nothing.
141.I believe that Theo was normally criticising Anton Martin’s (‘Anton’) cooking, who was the Chief Cook at the time, but I felt that Theo’s comments reflected badly on me.
142.I felt that when Anton was criticised for his cooking, it was a reflection on me because I worked with him as second cook for every 3 weeks of the month on the GV.
143.In early 1999, a survey was conducted about the food on board and the results indicated that Anton’s food wasn’t too good.
144.At one stage, the MUA members had a meeting and told Anton to lift his game. Anton apologised and said he would change but he never did.
145.I felt that Anton was victimised so I called an MUA meeting to discuss this. I told them that it wasn’t right.
146.I felt as though I had to defend myself because I had never had any complaints about my cooking from anyone.
147.At another meeting, Theo told the MUA members that I was bloody lucky to be in the job I was. He was angry because the other cooks had complained.
148.His comment made me feel that I should not complain about anything if I wanted to keep my job.
149.Present at this meeting were John Colham, Anton Martin, Peter Brownett, Rick Billingham and a couple of other guys whose names I’ve forgotten.
150.On one occasion Eddie Hassel told me that Bruce Doleman had told Anton Martin that he would separate us when the new rosters commenced because I needed help with my cooking.
151.Bruce Doleman suggested to Anton that I work with another Chief Cook, Guido.
152.Eddie was shocked to hear Bruce Doleman say that because he knew that I was a good cook.
153.I know that I am a good cook.
154.I don’t think the MUA members realise that I had received a London City and Guilds Certificate with high honours in theory and prac.
The Thirteenth Incident of Harassment
155.Theo DeVries was chairing this meeting.
156.During the meeting, I asked a fair question about how the EBA would affect the cooks.
157.Bill turned to me and, in front of everyone, called me a ‘fucking idiot’.
158.This made me feel embarrassed and too scared to say anything.
159.In front of everyone at the meeting Theo said that he was ‘bloody annoyed’ with me because I had spoken to Rod Currie about the EBA whilst I was on leave.
160.Both Theo and Bruce abused me at that meeting in front of everyone.
161.I was very disappointed with the outcome of this meeting because I felt as though I had been singled out, abused and victimised yet again.
162.Their reaction to me at that meeting made me feel humiliated and worthless.
163.Graeme Watson was not present at this meeting as he had already left the GV.
164.The day following this meeting, an integrated rating whose first name was Lee, approached me and told me that he thought Bruce and Theo’s behaviour wasn’t right and that what they said wasn’t right.
The Fourteenth Incident of Harassment
165.On about Wednesday 16 August 2000 somebody switched on my light at about 4:00am.
166.I got up and had a shower, got dressed and went to the CCR (Central Control Room) and asked Bill, Max and Mullett (whose first name I can’t recall) if they had turned on my light, to which they said no. I went into the galley and at about 4:45am Eddie Hassel showed up and told me that all of my washing had been scattered around the laundry floor and in the bin.
167.Ron Chisolm had also seen the laundry scattered across the floor.
168.Ron and Eddie didn’t see who did it.
169.At approximately 5:00am I approached Murray McColl, who was the OIM or Superintendent at the time, and told him what had happened.
170.I also explained that people had been knocking on my door during my afternoon breaks.
171.Murray McColl held a morning meeting with the Heads of Department about my laundry being thrown around and my light being turned on during the night. He said any crew member doing this would be instantly sacked.
172.Present at this meeting were the heads of each department.
173.On that same day, I spoke to Brian Smith (the relieving Chief Caterer) about getting a copy of the report about the harassment the day before. I said I wanted a copy faxed through to Paddy Crumlin of the MUA. Brian said he wouldn’t give me one. He said that he had done all he could and that he would monitor the situation from now on.
174.On 17 August 2000 I had a meeting with Murray McColl and the procedure for dealing with this incident was explained. I told Murray that even though the door knocking had stopped, it didn’t mean that it would not happen in the future.
175.I don’t know if Brian actually saw or prepared the report following the meeting held by the Captain.
176.Instead, I ended writing my own report on the meeting but when I asked Brian to counter sign the copy to illustrate that it was a true and accurate record of the meeting, he refused.
177.I asked Brian to sign my report because he was the head of the caterers’ department.
Leaving the GV: August 2000
178.Toward the end of August 2000 I was extremely stressed. I was experiencing shaking, nerves, and tiredness and was starting to smoke heavily. I felt alone and isolated.
179.I found that because of relentless harassment, I was smoking a lot more and for some reason I couldn’t stop.
180.Every time I went away, my wife would buy me a carton of smokes and a couple of packs of ‘rollys’ which would normally last me 28 days.
181.However, once the harassment started, I began to smoke 40 to 50 cigarettes each day.
182.I would go through a carton and a pack of rollys within 7 days.
183.I was scared that Bill or the IRs would lose control and harm me physically.
184.I took leave from November 1999 to April 2000 because I was on long service leave.
185.In about August 2000, I took over Anton’s position as Chief Cook. By this stage I felt emotionally and physically tired and worn out.
186.My appetite sometimes completely went, so I wouldn’t eat for days and my energy levels had gone down. Physically I was feeling weak and mentally I was feeling mixed up and I didn’t know what to do to stop the harassment.
187.On 17 August 2000 I noticed that my throat was very sore.
188.On 18 August 2000, I got up at 4:45am and, whilst having my shower, I coughed up some blood and I still had a very sore throat.
189.Later that afternoon I coughed up some more blood.
190.On the afternoon of 19 August 2000 I approached the medic, Arie, whose last name I don’t know, and Alan Close on the GV because I had coughed up some blood in the shower that morning, had blood in my stool and my throat was very sore.
191.I thought I may have cancer.
192.Arie suggested I rub Tiger Balm on my throat.
193.I was given Aspirin.
194.By that stage I was feeling very nervous, sick and anxious and simply wanted to get off the ship but didn’t know how to do it.
195.On 20 August 2000, I reattended on the medic. My blood pressure was high and my throat was inflamed. I received concentrated Betadine gargle, Amoxil tablets and Aspirin. The medic, Mike Bentley, told me that the Captain (Sheldon Haines) had said that if I was to go ashore and see a doctor I’d leave myself wide open. I interpreted it so that I would leave myself wide open to get the sack.
196.I spoke to Sheldon (the Captain) because I hadn’t had any food for 24 hours and all I could ingest was milk and water.
197.I told Sheldon that I wanted to go home to see a doctor and that Arie had told me to use Tiger Balm and I didn’t think it was funny.
198.I told him I’d take to someone with a knife if I didn’t get off the GV and home to see my doctor.
199.Later that day, I was approached by Ron Chisolm and Sheldon who said that they were working on me getting out of there. I was advised that if I did see a doctor, it would have to be a BHP doctor.
200.It was then decided that if I was well enough, I would be placed temporarily on steward’s duties. I agreed to this.
201.I was very stressed at this stage and all I wanted to do was get off the GV and see a doctor.
202.On 21 August 2000 I left the GV.
203.When I left the Griffin Venture I felt scared and very intimidated.
204.At 3:00pm on 21 August 2000 I attended on Dr Linfoot who was the BHP doctor. I had a high pulse rate and blood pressure.
205.He suggested that I see my family doctor Dr Shulman.
206.I saw Dr Shulman on 24 August 2000 who said I had inflamed tonsillitis, persistent laryngitis and pharyngitis.
207.Dr Shulman also said that I was suffering from Post Traumatic Stress Disorder and prescribed Ativan.
208.I described the work situation to him at this consult and, in particular, the harassment that I was subjected to.
209.Dr Shulman then referred me to see a Psychiatrist, Dr Tannenbaum.
210.On 12 September 2000 I was reviewed by Dr Tannenbaum who deemed me unfit for work for at least the next two months and prescribed me anti-depressants (Cipramil 60 mg).
211.In October 2000 I started to experience symptoms of aggression. I was feeling angry about the way the cooks including myself were being treated by BHP.
212.I was still attending on Dr Tannenbaum who increased my anti-depressant medication intake.
213.The tablets that the doctors prescribed weren’t working and it seemed that everything was going on in my brain.
ISSUES RAISED BY THE RESPONDENT
Substance Abuse
Alcohol
214.I have always drunk socially. Sometimes when I was at home I would not touch a drop, other times if I had a social engagement on I would have a few drinks.
215.In 1997 after the explosion, for the first time in my life I began to drink heavily to stop the constant feeling of panic that I was experiencing and the sensation that my mind was racing and I could not stop it.
216.When I was at home for the first time after the 1997 explosion I drank a lot for about 2 weeks. I was drinking about one bottle of spirits each day.
217.Within a few months I stopped drinking until my long service leave which started in November 1999 and ended in April 2000.
218.I then began to drink again because it relieved the stress and anxiety caused by the harassment.
219.Every time I returned to work my bags would be x-rayed at the airport to check for drugs and alcohol. There is no alcohol on the vessel.
Smoking
220.Prior to the explosion I smoked 20 cigarettes per day.
221.I had been smoking 20 cigarettes per day for 10 years prior to the explosion.
222.After the explosion I began to smoke more and more.
223.In November 2000 Dr Shulman referred me to see Dr Bond (ENT Specialist) because my throat was still causing me difficulty in that it was sore and swollen. My voice had also become quite hoarse.
224.At this stage I was smoking 40 cigarettes per day.
Illegal Drugs
225.Prior to December 2000 I smoked marijuana about once a year, if that.
226.In about December 2000 I began smoking more and more marijuana.
227.I started to smoke marijuana more and more because I didn’t feel in control of my life and that I would lose my house.
228.Prior to late 2000 I never used any drugs except marijuana about once a year. Between December 2000 and February 2001 I used speed and ecstasy every day, if I could get money to buy it. At that time I thought I would lose my house because my illness meant I couldn’t work and pay the mortgage. I had never had financial problems before I got sick. Since March 2001 I have only used marijuana as it calms me down and helps me cope.
Attempts at Rehabilitation
229.In an attempt to stop my alcohol and drug abuse I was admitted to Perth Clinic from 20 February 2001 to 3 March 2001.
230.At the same time Dr Tannenbaum placed me on Zyban to try and control my smoking.
231.Whilst in Perth Clinic I commenced a cognitive behavioural program. I found this program to be helpful but, because of my violent outbursts in group therapy, I was unable to continue.
232.Following my stay in Perth Clinic I stopped smoking and using any drugs for approximately 6 to 8 months but then gradually I started using marijuana more and more often.
233.I drank alcohol occasionally to help me deal with the stress.
Sister’s Illness
234.On the first night that I came out of Perth Clinic on 3 March 2001, I found out my sister had developed cervical cancer.
235.Prior to this date my sister had been well and there had not been any problems with her health.
236.At the time of finding out about my sister’s cancer I was already suffering from an anxiety disorder which had been caused by the harassment that I suffered at work.
237.Subsequently my sister’s cancer was successfully treated.
Lack of Motivation
238.Both the psychiatric drugs and illegal drugs left me completely unmotivated.
239.They would wipe me out and keep me in bed for two days.
240.Prior to becoming sick as a result of the harassment I suffered at work, and as a result needing to take prescription drugs, I was highly motivated and loved my job. I still take great pride in the standard of the menus and meals that I prepared. I have saved some of the menus of which I am very proud.
Failure or Refusal to Follow Medical Treatment
241.I do not know why the Respondent alleges in its Statement of Issues that I have not followed medical advice or treatment.
242.I have always taken any prescribed medication, willingly participated in rehabilitation at places such as Holyoak and spent time in hospital.
243.I hate the way that the harassment has left me feeling. It makes every day of my life hell. I want more than anything to feel normal again, so if there was a way to fix it I would be excited about participating in the treatment.
Promotion
244.In the last 6 months of my employment with BHP, Graeme Watson, who was Chief Cook, had left and the position of Chief Cook was empty. I thought that naturally I would be promoted to Chief Cook.
245.However, as there was not much difference in pay between Second Cook and Chief Cook I was not too fussed about whether I was given the Chief Cook’s job.
246.I was more annoyed that no one sorted out who would take on the duty of Chief Cook.
Marital Issues
247.Prior to August 2000 I had always had a very good and strong marital relationship with my wife Michelle.
248.Following my departure from the GV in August 2000 my relationship with Michelle started to deteriorate due to financial strains.
249.On or about 24 May 2002 I separated from my wife Michelle.
Financial Pressure
250.I have never had any financial problems before my illness caused me to stop work and earning any income. I have not had any income since late 2000 when I was last paid by BHP.
Union Action
251.I do not know why the Respondent alleges that my stress has been caused by Union Action.”
14. The applicant gave brief oral evidence-in-chief which did not add significantly to his written statement of evidence.
15. In the course of a very lengthy cross-examination – in which the applicant did not resile in any significant respect from the contents of his above statement of evidence – he acknowledged that:
·from February 1998 to August 2000 he performed his required work duties on board the vessel “Griffin Venture”;
·he “would like to have become Chief Cook” on the “Griffin Venture” but he was not disappointed by his not being promoted to that position – rather, he “didn’t understand it”;
·he ceased work on 21 August 2000 because of a problem with his throat, and that he continues to have such a problem and to be depressed about it;
·after August 2000 he began to abuse alcohol and certain illegal drugs and that caused him to become increasingly abusive and aggressive;
·after August 2000 his marital circumstances deteriorated badly and that caused him stress and anxiety;
·from November 2000 he felt stressed because of financial difficulties resulting from his lack of income;
·in early 2001 he was worried about losing his house and that caused him anxiety and depression;
·in early 2001 he was worried about his own, and his family’s, safety and that caused him stress and anxiety;
·in March 2001 he was informed that his sister had cervical cancer and that caused him to feel stressed and very upset;
·since August 2000 he had had conflicts with other persons, including an officer of his local council, and that caused him stress;
·the abovementioned matters, which had occurred since August 2000, had led to his feeling anxious and depressed.
16. The applicant also acknowledged that on 21 August 2000 when he left the “Griffin Venture” he immediately went to see Dr G Linfoot at The Terrrace Medical & Vaccination Centre about his throat condition and he then completed an “Offshore Medical Form” (Exhibit R1) in which, in response to the question: “Have you ever suffered from or been told that you had any of the following conditions?” he ticked the “No” box corresponding to each of the specified psychological conditions, including “Depression”, “Anxiety”, “Stress”, “Panic Attacks”, “Nervous Disorder”.
17. The applicant also acknowledged that, from the middle of 2001, his compensation action against the respondent was causing him stress and that his wife’s apparent lack of sympathy and understanding regarding that matter made him feel depressed and increased his stress.
18. Finally, in re-examination the applicant confirmed that he continues to feel stressed and that, because of his inability to return to work after August 2000 and his loss of income, he had “lost everything” – his marriage, his wife, his children and his house.
The Lay Evidence
Michelle Capka
19. Michelle Capka confirmed that she had signed a statement of evidence in this matter and that its contents are true and correct. The contents of that statement (as amended by Mrs Capka), which was filed on 15 August 2002 and which was tendered in evidence by the applicant (Exhibit A3), are as follows:
“1. I married David Vaclav Capka on 20 June 1988.
2.I have two children. The first is aged 19, and the second is aged 12.
3.David is the biological father of the second child.
1997
4.Early November 1997, a BHP representative contacted me at home by phone to let me know that a fire incident had occurred on board the Griffin Venture (‘GV’).
5.The BHP representative told me that I had nothing to worry about and that the fire incident was no big deal. I thought that they were playing it down a bit so that the families would not panic.
6.I asked the BHP representative when I could speak to David. They informed me that I wouldn’t be able to for a while because the phone lines were down.
7.They said that David was okay but I was unable to speak with him.
8.Even though I had received the phone call from BHP, I was panicking because I wouldn’t be able to talk to David immediately and it was completely unexpected. I didn’t really know about the circumstances surrounding the fire incident.
9.Eventually, I was able to contact David. He called me from the GV.
10.I asked how he was and David said he was fine. I felt as though he was trying to make me feel at ease by telling me that everything was okay and that I shouldn’t panic.
11.David remained on board for so many days following the explosion before he was relieved, and allowed to fly from the vessel to Perth.
12.David then returned to Peth late November 1997.
13.I didn’t notice any immediate difference in David’s demeanour when he came off the GV.
14.I then began to notice a slow deterioration in his personality.
15.David didn’t really say that much about the fire explosion to start off with.
16.Dave spoke in very little detail at the beginning. I was under the impression that he just wanted to move on with his life.
17.David came across as being very strong, but the explosion incident must have been eating him up inside because he wasn’t eager to talk about the explosion at all with me.
18.Normally, David would discuss some events of his time on board the GV with me. He was a good talker.
19.I think he just wanted to forget that the explosion occurred but at the same time, it seemed to me that David was uptight about things.
20.David began to talk about the explosion. He didn’t really want to talk about the explosion in great detail, though.
21.David told me that he could not get over how trapped he had felt on the GV and how he just couldn’t get off the ship soon enough.
22.He couldn’t believe how BHP had no real procedures in place to help him, or the other crew members in that situation.
23.I began to notice a change.
24.David started to smoke more.
25.David gradually developed a different attitude towards myself and the family.
26.He would become noticeably short-tempered.
27.David would express to me a general feeling of uneasiness.
28.He simply just wasn’t himself.
29.I didn’t realise that the effect of the explosion on him was affecting him so much.
30.I recall that he said he felt uneasy about going back to work following the explosion.
31.David had always been a hard worker. He worked hard when away on the rigs or the ships and usually worked long hours.
32.When he wasn’t working on the rig, he was working around the house.
33.He was a hard worker who loved his family and wanted to provide for them.
34.He wasn’t one to sit down and do nothing. He liked to keep himself busy even when he was at home.
35.He had been a man with his life planned out.
36.David continued to feel uneasy about the explosion following Christmas 1997.
37.David had always provided well for his family.
Prior to November 1997
38.To the best of my knowledge, prior to November 1997, David never took drugs or drank excessively.
39.At home, David and I were social drinkers but David never drank excessively.
David’s Alcohol Use following November 1997
40.When David first got off the GV in November 1997, he seemed to be nervous and agitated at times. He would have a drink to relax.
41.This behaviour started a couple of days following his return to Perth.
42.I thought nothing of it because I thought he was stressed and was simply going through something that I didn’t understand.
43.I thought the best way I could help him was to be patient and let him sort everything out with time.
44.I was working and was unable to keep tabs on what he was drinking. However, I know that when I got home from work, occasionally he was drunk.
45.David drank bourbon mainly.
46.Towards the end of November 1997 and December 1997, David’s attitude had begun to change.
47.David became increasingly nervous, unsure of himself.
48.I put this behaviour down to stress caused by the explosion.
49.David saw our family doctor, Dr Shulman for the first time in early December 1997.
50.He was smoking heavily at that stage, and was drinking more than usual but to my knowledge, he wasn’t taking any illegal drugs.
51.Dr Shulman referred him to see Dr Chris Perrier (Psychiatrist).
52.David started to attend on Dr Perrier regularly.
53.I thought that Dr Perrier would be able to make things better so that everything would be okay and David could go back to work.
54.He didn’t want anyone to know that he was seeing a Psychiatrist.
55.He told BHP that he was going on holiday.
56.Once he started seeing Dr Perrier on a weekly basis, his drinking started to slow down.
57.I thought he was going to be okay and that he was going back to work on the GV.
58.David said that he didn’t want to go back to the GV.
59.In early January 1998, David was contacted by BHP personnel who encouraged him to return to the GV.
60.I recall that David advised BHP that he wasn’t medically cleared to return yet.
61.David then attended on a doctor recommended by BHP who I understand allowed him to return to the GV.
62.When David went back on board the GV in January 1998, he worked on a month on month off roster.
63.When he returned, he seemed uptight.
64.I thought that the way he was acting was directly related to the explosion. I thought that as time went on, he would improve and become less anxious.
65.For the months when David was home and away from the GV, I noticed that he was smoking a lot more and drinking more than usual.
66.He would drink every night and I just put it down to him trying to relax.
67.He would drink to a point where he would be happy but then he would be okay.
68.He then began to experience mood swings. One minute he would be up and okay, the next he would be down and depressed.
69.For example, we would be sitting at the table and talking about something when he would just snap at me for no reason.
70.I just thought that I would be patient with him because he was still going through the stress associated with the explosion.
1999-2000
71.We were renovating a 100 year old home and he couldn’t be bothered. This was quite a change as the renovation was his idea.
72.He was losing the drive to do things.
73.He began to distance himself from his extended and immediate family.
74.I thought he needed his own space.
75.To me it seemed that he was in a different world. For example, I would talk to him and I could tell that he would be thinking of something else. He was distracted.
76.When I did have the chance to speak with David on the phone when he called from the GV, he would say that he was fine.
77.David occasionally said that he didn’t want to go back to work but he never said anything else to let me know that he was serious about it.
August 2000
78.Since August 2000, my life has been full of mental and physical abuse.
79.David did tend to bottle up his feelings. Even though he was a good talker, when things were bad he wouldn’t say anything because he knew that I would probably panic about our financial commitments.
80.I never knew of his problems with harassment on board the GV because he simply didn’t tell me.
81.The first time that David told me there was something wrong was in August 2000 when he came off the GV because of his bleeding throat.
82.He called me from Perth and asked me to pick him up from the doctor’s (who was a BHP doctor) rooms because he had a bleeding throat and wanted me to take him home.
83.I had no idea about the harassment until he mentioned that he had other things to tell me about what had been happening on the ship. He said he would explain when he got home.
84.When David came home, he started to tell me things.
85.He described how his clothes had been thrown around the laundry, how one guy pushed him against the microwave, and how other crew members called him ‘fuck’.
86.David said that this had been going on for ages.
Alcohol and Drug Abuse
87.When Dave came home in August 2000, he started to drink bourbon regularly.
88.He then drank more and more and chain smoked.
89.In about September 2000, Dr Shulman referred David to see Dr Dennis Tannenbaum (Psychiatrist) who increased David’s anti-depressant intake.
90.David was drinking heavily and was starting to become very aggressive and violent towards me.
91.He was very angry.
92.In about November 2000, David was referred to Dr Bond (ENT) because his throat was still causing him problems.
93.In December 2000, David tried to cut down his drinking although he struggled to keep it under control.
94.In the few months prior to February 2001, David gradually got worse and worse.
95.I assume that this was the time when he started to use illegal drugs although I am not sure. As far as I am aware David never used illegal drugs before this time.
96.In about February 2001, I started to notice that money was being withdrawn from our bank account and I didn’t know why.
97.When I confronted David about where the money was going, he said that he had started smoking marijuana. He was buying foils for approximately $25.00 each.
98.This usage increased however and he started to spend more and more on marijuana.
99.He said that he had bought it because he needed something to relax him, and that it was the only thing that could get him through.
100.He continued to drink excessive amounts of alcohol.
101.He also started to buy ecstasy, and speed (amphetamine) from Midland, I believe.
102.I believe that David was panicking about what kind of life we were going to have.
103.David simply didn’t want to go back to the GV and this was worrying him because he didn’t know how he would be able to support us.
104.He was drinking, smoking, taking speed, and ecstasy, smoking marijuana and taking his anti-depressant and anti-psychotic medication.
105.He was admitted into Perth Clinic in February 2001.
106.When David came out of the Perth Clinic in early March, he stopped taking illegal drugs but he still drank.
107.When David was drunk, he would get very abusive and violent towards me.
108.David would start off happy then turn loud, very angry then at times violent when drunk.
109.In April 2001 David was referred to the Swan Clinic again because he couldn’t afford Dr Tannenbaum’s private treatment.
110.David then began to see Dr Nguyen, Registrar at Swan Clinic, at first.
111.David saw Dr Nguyen approximately once a fortnight. Also Ann James Counsellor at Swan Clinic once a month. Now seeing Dr Nazarin once a month, he has taken over Dr Nguyen’s position.
112.Off and on, David would have periods of binge drinking but I can’t recall exactly when those times were or how long they lasted. I know they happened though.
113.In the morning David would be okay, but by the time I got home from work, he would be drunk, moody and aggressive.
114.I never knew what the night time would hold for our family due to David’s mood swings and alcohol use.
115.In about May 2001 he slowly calmed (sic) drinking and then stopped smoking.
Having regard to the applicant’s evidence and the medical and psychological evidence before it, the Tribunal is satisfied that the onset of the applicant’s current major depression was contributed to very substantially by the prevailing circumstances of his employment on board the “Griffin Venture” – in particular, his treatment by other crew members – which he genuinely perceived as threatening and constituting intimidation and harassment, and the Tribunal so finds. In the light of that finding it is unnecessary for the Tribunal to consider and determine whether the applicant had an existing mental ailment at that time, by reason of the November 1997 explosion/fire incident, which was aggravated by the abovementioned employment circumstances. As regards the applicant’s current, ongoing major depression, the Tribunal accepts that, in the period since he left the “Griffin Venture” on 21 August 2000, various non-employment-related matters have also contributed to his feelings of stress, anxiety and depression – including his ongoing throat problem, substance abuse, marital difficulties, financial difficulties, concern for his own, and his family’s, safety, his sister’s cervical cancer, conflicts with others including a local council officer, his ongoing compensation action against the respondent, and his wife’s apparent lack of sympathy and understanding – as the applicant frankly acknowledged in his evidence. In the Tribunal’s opinion, however, those non-employment-related matters have not completely supplanted the abovementioned employment circumstances as the factors contributing to the applicant’s current major depression. On the contrary, it is the Tribunal’s opinion that those employment circumstances continue to contribute, in a material degree, to the applicant’s current major depression and, therefore, continue to be an operating cause of that mental ailment, and the Tribunal so finds.
90. Accordingly, the Tribunal finds that the applicant’s current major depression is a “disease”, as defined in s3 of the Act.
91. The applicant’s current major depression, being a “disease”, will also be an “injury”, as defined in s3 of the Act, provided that it was not suffered by him as a result of, relevantly, “failure by [him] to obtain a promotion, ... or benefit in connection with his ... employment”. The respondent submitted that the applicant’s mental ailment (if any) was “due to his failure to procure a promotion to chief cook” and was thereby excluded from the definition of “injury” in s3 of the Act. The Tribunal does not accept that submission. In the first place, the Tribunal is not satisfied that the fact that the applicant did not become Chief Cook on the “Griffin Venture” on a permanent basis after Graeme Watson left that vessel in April 2000 contributed in a material, or in any, degree to his contracting major depression; and, secondly, even if the Tribunal were so satisfied, the abovementioned exclusionary provision would nevertheless not be applicable because of the existence of the other abovementioned factors – namely, those factors associated with his treatment by other crew members on the “Griffin Venture” which he perceived to be threatening and to constitute intimidation and harassment – which (the Tribunal has found) contributed substantially to his contracting major depression.
92. Accordingly, the Tribunal finds that the applicant’s current major depression is an “injury” (as defined in s3 of the Act) within the meaning, and for the purposes, of the Act.
Has the applicant’s mental “injury” resulted in his “incapacity for work, or impairment”, within the meaning of s26(1) of the Act?
93. The applicant’s mental “injury” has clearly resulted in his “impairment” (as broadly defined in s3 of the Act). Furthermore, the preponderance of the medical and psychological evidence before the Tribunal supports the proposition that the applicant’s mental “injury” has also resulted in his “incapacity for work” (as defined in s8 of the Act).
94. Dr Tannenbaum, who first examined the applicant on 12 September 2000 (some 3 weeks after he ceased working on the “Griffin Venture”), reported on 13 September 2000 (T14) that the applicant was “extremely severely disordered” and that the degree of his disability, by reason of that condition, was in excess of 30%. On 21 September 2000 Dr Tannenbaum reported (T15) that the applicant “will not be fit for any work for at least the next month or two”. In his report of 5 December 2000 (T22) Dr Tannenbaum opined that it was unlikely that the applicant would be able to return to his pre-illness employment as a cook on the “Griffin Venture”, although he appeared to acknowledge that the applicant may be able to “work elsewhere”. In his report of 30 July 2001 (T35) Dr Tannenbaum opined that, although he could not see the applicant ever returning to work on the “Griffin Venture” (because of the “conflicted situation” on that vessel), the applicant “could work as a cook elsewhere”.. In his most recent report dated 21 August 2002 (Exhibit A6), however, Dr Tannenbaum stated that the applicant was “unable to function currently” and was “currently incapacitated as a cook” but that, following resolution of the present compensation proceedings, there was “a reasonable chance that, with relocation and extensive treatment and rehabilitation, he would be able to return to work”.
95. Dr Shulman, the applicant’s then general practitioner, saw him on 24 August 2000 (3 days after he left the “Griffin Venture”) and immediately referred him to Dr Tannenbaum, Psychiatrist, noting “problems of anxiety and depression” (T14, p23). On 7 December 2000 Dr Shulman reported that the applicant “remains totally unfit for work” (T23, p47). In his report of 24 June 2001 (T34) Dr Shulman opined that the applicant was “currently totally incapacitated to return to any form of work” by reason of his psychiatric condition.
96. Mr van Ierland, Clinical Psychologist, who assessed the applicant in July 2002, reported on 11 August 2002 that the applicant was currently “incapacitated for any work” by reason of his mental injury, but that it was not his opinion that the applicant was permanently incapacitated for any work (Exhibit A4).
97. Dr Mustac, on the other hand, attributed the applicant’s mental illness to what he described in his report of 17 September 2001 (T38) as “a severe and chronic substance dependence problem”, and not to his employment on the “Griffin Venture”.. As regards Dr Mustac’s assessment of the applicant’s capacity or incapacity for work, although he did not expressly address that issue in his initial report of 26 February 2001 (T24), it is, in the Tribunal’s opinion, necessarily implicit in that report that he regarded the applicant as totally incapacitated for work at that time. In his reports of 24 August 2001 (T37) and 17 September 2001 (T38), however, Dr Mustac appeared to attribute any incapacity for work on the part of the applicant to substance abuse, and he suggested that the applicant lacked the motivation to cease substance abuse and to return to work. Finally, in his report of 19 August 2002 (Exhibit R14) Dr Mustac opined that “from a psychiatric perspective” the applicant was “fit to resume work”.
98. Having regard to the whole of the medical and psychological evidence and material before it, the Tribunal finds that, by reason of his mental “injury” – namely, major depression which was contributed to substantially by his employment on the “Griffin Venture” (as discussed in paragraph 89 above) – the applicant was totally incapable of performing any work from the date of his departure from the “Griffin Venture” on 21 August 2000 and that total incapacity for work has continued until the present time and the applicant remains totally incapacitated for work. In the Tribunal’s opinion, Dr Tannenbaum’s view, expressed in his report of 30 July 2001 (T35), that the applicant “could work as a cook elsewhere” (that is, not on the “Griffin Venture”) was unduly optimistic, and Dr Tannenbaum, in his final report of 21 August 2002 (Exhibit A6), appeared to acknowledge that the applicant’s incapacity for work, which had commenced prior to his initial referral to him in September 2000, had continued from that time.
99. Accordingly, the Tribunal finds, for the purposes of s26(1) of the Act, that the applicant suffered a mental “injury” (as defined in s3 of the Act), namely, major depression, by reason of his employment on the “Griffin Venture” and that that “injury” resulted in his total incapacity to engage in any work as from 21 August 2000, which total incapacity for work continues at the present time.
Conclusion
100. Finally, the respondent submitted that, if the applicant had suffered an “injury” (as defined in s3 of the Act), that “injury” was caused by the “serious and wilful misconduct” of the applicant – namely, his substance abuse (see s12 of the Act) – and, by reason of s26(3) of the Act, compensation is not payable for that “injury”. The Tribunal, however, does not accept the causation premise on which that submission is based. The Tribunal instead accepts Dr Tannenbaum’s opinion, expressed in his report of 21 August 2002 (Exhibit A6), that the applicant did not have a significant substance use problem prior to his suffering the relevant mental “injury”, and that the substance abuse in which he subsequently engaged was a consequence of his mental “injury” and not the cause of it. The Tribunal notes that a similar opinion was expressed by Mr van Ierland in his report of 11 August 2002 (Exhibit A4). Accordingly, the Tribunal finds that s26(3) of the Act is not applicable in the circumstances of the applicant’s case.
101. The Tribunal concludes that:
·compensation is payable to the applicant, pursuant to s26(1) of the Act, for a mental “injury”, namely, major depression, which has resulted in the applicant’s continuing total incapacity for work from 21 August 2000; and
·the respondent is liable, pursuant to ss 24 and 25 of the Act, to pay compensation to the applicant in accordance with the Act in respect of that “injury”.
Decision
102. For the above reasons the Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act, in respect of a mental injury, namely, major depression, which has resulted in his continuing total incapacity for work from 21 August 2000.
103. The Tribunal orders, pursuant to s92(1) of the Act, that the respondent pay the applicant’s costs of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr D Weerasooriya, Member
Signed: .............(sgd V Wong)................................
AssociateDate/s of Hearing 24-25 October, 16-18 December 2002, 17 January 2003
Date of Decision 28 August 2003
Counsel for the Applicant Ms A Crichton-Browne, Mr J Johnson
Solicitor for the Applicant Julian Johnson Lawyers
Counsel for the Respondent Mr G Hancy
Solicitor for the Respondent Cocks Macnish
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