Chattington and Repatriation Commission

[2005] AATA 249

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1082

GENERAL APPEALS   DIVISION		)
Re		NICHOLAS CHATTINGTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date24 March 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sdg]........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war caused disease during eligible defence service – diagnosis of psychiatric condition in issue – post-traumatic stress disorder – alcohol abuse – depressive disorder – applicant did not suffer a severe stressor – diagnosis of post-traumatic stress disorder not accepted – depressive disorder and alcohol abuse are not attributable to the applicant’s eligible service – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 14, 120

Stoddart v Repatriation Commission [2003] FCAFC 300; (2003) 77 ALD 67

McKenna v Repatriation Commission [1999] FCA 323

REASONS FOR DECISION

Senior Member B J McCabe         

24 March 2005

Introduction

1.      Mr Nicholas Chattington is the applicant in these proceedings. He claims to have developed post traumatic stress disorder (PTSD), depressive disorder and alcohol abuse disorder as a result of an incident that occurred while he was on defence service in 1973 aboard HMAS Yarra.

2.      The Repatriation Commission does not dispute Mr Chattington is now a very sick man. It says however that his current psychiatric conditions are not attributable to his service aboard the Yarra. The Commission suggests other events occurring after Mr Chattington left the navy are to blame.

3.      I think the Repatriation Commission is right. For reasons I will explain, his application must be refused.

The Material Before the Tribunal

4. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

Exhibit 2 – Report of Dr Rogers dated 7 October 2004

Exhibit 3 – Report of Dr Rogers dated 11 October 2004

Exhibit 4 – Report of Dr Rogers dated 17 June 2004

Exhibit 5 – Applicant’s statement dated 5 January 2005

Exhibit 6 – Report of Dr Mulholland dated 27 May 2004

Exhibit 7 – HMAS Yarra Log of proceedings

Exhibit 8 – Damage report of HMAS Yarra re: collision with buoy incident

Exhibit 9 – Victoria Police file of Mr Chattington

Exhibit 10 – Workcover Victoria file of Mr Chattington.

5.      At the hearing on 8 March 2005 the applicant was represented by Mr Thompson, Solicitor. The respondent was represented by Mr Stoner.

The Relevant Legislation

6. The applicant has applied for a pension under s 14 of the Veterans’ Entitlements Act 1986. I am obliged to assess the application in light of s 120 of the Act. Section 120(4) says I must decide the matter to my reasonable satisfaction.

The Facts

7.      Mr Chattington enlisted in the Navy on 5 July 1972 and was discharged on 24 August 1975. He rendered eligible defence service from 7 December 1972 until his discharge.

8.      Mr Chattington served in several shore establishments and ships including HMAS Yarra, a destroyer escort. He was aboard the Yarra when it formed part of the Far Eastern Strategic Reserve (the FESR). Ships in the FESR operated out of a number of Asian ports. The ship steamed into Hong Kong harbour on 17 August 1973 in company with several other naval vessels when it collided with a typhoon buoy in the river channel. The applicant was working as a radar plotter in the operations centre of the ship at the time. The operations centre is a darkened, windowless room located behind and below the bridge.

9.      The applicant said the buoy was dragged beneath the keel of the ship and dragged along its length. He said there was a loud bang when the collision occurred and a screeching sound as the buoy made its way down the length of the vessel. He said the stern of the ship heaved upwards when the buoy reached the end of the ship and shot back to the surface. One of the screws was damaged in the collision and the vessel made its way to the dock where it berthed about 15 minutes later.

10.     The applicant said he jumped up from his radar display when the collision occurred and quickly climbed the ladder to the bridge to find out what was going on. He was immediately called back by his supervisor and directed to return to work. He said it was dreadful to be stuck in the darkened room, wondering what was occurring. He said he feared the ship had hit something – another vessel, perhaps – and someone might have been injured or killed. He said he was worried the ship itself might have been in danger of sinking. That was a particularly frightening prospect for him because he was a poor swimmer. He said he doubted he would have been rescued if the vessel had sunk.

11.     Mr Chattington said he was severely shaken up by the incident. He said he felt helpless and guilty because he should have been able to detect the buoy on his radar scope.

12.     The applicant was transferred to a Royal Navy ship while the Yarra remained in Hong Kong for repairs. It was some weeks before he rejoined the Yarra. During that time he said he began to drink heavily. He said he was not a heavy drinker prior to that time: he did not drink at sea, for example. After the incident on the Yarra he drank a lot and often had to be carried back to the ship when he had shore leave. He also said he began to stutter.

13.     The heavy drinking continued after he returned to Australia and was posted to HMAS Watson. It was triggered by being exposed to radar plotting equipment used for training. Mr Chattington said the sight of the equipment caused all the memories of the incident on the Yarra to come flooding back. The applicant said he would routinely have a number of beers over lunch and curl up in the corner and sleep in the afternoons. He had a serious traffic accident during this period, and was hospitalised. He says the accident was drink-related although he was not charged. He also had a dispute with an officer over his progress through a course he was attending.

14.     Mr Chattington decided to leave the navy and join the Victorian police force after talking to one of his officers. He was accepted into the police force and attended basic training after discharge from the navy. His training was interrupted by a traffic accident. He was charged with driving under the influence of alcohol. He was convicted and resigned, but applied to rejoin the force a short time later.

15.     The applicant successfully completed his basic training and commenced duties. He had what was, by all accounts, an illustrious career with the Victorian police. He was a detective sergeant who specialised in surveillance work. He was involved in a number of important cases.

16.     Mr Chattington witnessed a number of distressing events during the course of his police service. He gave evidence of an incident early on in his career when he came close to shooting a 14 year old boy who was carrying a replica pistol. Mr Chattington saw a young girl who died in a horrific car accident. Another female was killed in a high speed pursuit in which he was involved. He was also present at Russell St police station when that building was bombed. A friend was injured in the bombing. His best friend’s half brother – another young police officer - was also murdered in an ambush. (A second policeman was killed in the same incident.) The applicant, his friend and the young constable were scheduled to go on a fishing trip shortly after the date of the murder. The applicant was subsequently involved in the investigation into the killings.

17.     The applicant spoke about the day of the Russell St bombing in some detail. He was in the building and headed for the exit when the bomb went off. He was ushered back to his office where he was confined for several hours. While it was clear a bomb had exploded, he said no one knew what was going on. He was unsure whether there was a danger of other bombs, for example. He said it was just like what happened on the Yarra, when he was required to stay at his post with no idea of what was going on outside after the incident.

18.     The applicant also had to deal with a personal tragedy during this period. His baby daughter died when she was seven weeks old.

19.     Mr Chattington says he drank heavily throughout his service with the police force, although he said he was continuing a pattern established during his time in the navy. He says there was a strong drinking culture in the police force. As a plainclothes officer, he had ample opportunities to drink, even while on duty.

20.     Mr Chattington became unable to work in 1996. He was diagnosed with a range of psychiatric conditions. He took leave and ultimately left the police force in 1998. He made a Workcover claim and sued the police force. There is a great deal of evidence in his personal and Workcover files detailing his psychiatric conditions.

21.     The applicant told the Tribunal he did not mention his experiences in the navy when he was pursuing his claim against the police force because he was told the police force would use his experiences in the navy as an excuse to avoid liability. He was worried – and continues to worry – about the possibility of falling between the two compensation schemes.

22.     I accept the applicant was a witness of truth. I accept his account of the facts, including his account of the incident on the Yarra and his reaction.

The Diagnosis

23.     Dr Rogers is the applicant’s treating psychiatrist. Dr Rogers diagnosed PTSD, major depression and alcohol abuse. He says those conditions are attributable to service with the navy and the Victorian police force. He says the incident aboard the Yarra was a severe stressor. Mr Stoner pointed out in submissions that Dr Rogers’s report of 7 October 2004 appears to proceed on the basis that the incident occurred in stormy conditions (it did not) while the ship was at sea (it was in the approaches to the harbour, within 15 minutes of its berth).

24.     Dr Mulholland was called to provide a report and give evidence on behalf of the respondent. He declined to diagnose PTSD on the basis of the applicant’s experiences onboard the Yarra. He agrees the applicant suffers from “chronic anxiety and depression since 1996 and chronic alcoholism since perhaps 1974/5.”

25.     I prefer the diagnosis of Dr Mulholland. Dr Mulholland rejects a diagnosis of PTSD in particular because he does not accept the events described on the Yarra amount to a severe stressor within the meaning of DSM-IV. I think he is right to do so. In any event, Dr Mulholland is an independent expert who is able to offer a more objective appraisal of the applicant’s condition than his treating doctor. I also share Mr Stoner’s concerns over the accuracy of the history recorded by Dr Rogers used as the basis for his diagnosis.

26.     It may be that a diagnosis of PTSD is able to be made now on the basis of the applicant’s experiences in the police force. Dr Mulholland did not focus on those matters, although he concedes the applicant suffers from severe psychiatric conditions. But that diagnosis is unrelated to the applicant’s naval service.

Applying the Statements of Principle

27.     Having reached a diagnosis (alcohol abuse and depressive disorder), it becomes necessary to consider the relevant statements of principle (SoP). Those SoPs are:

·Alcohol Abuse (Instrument 77 of 1998)

·Depressive Disorder (Instrument 59 of 1998)

28.     I have already dealt with the diagnosis of PTSD. For the sake of completeness, I will elaborate on my conclusion in relation to PTSD and demonstrate that the applicant cannot satisfy the relevant SoP (Instrument 55 of 1999) even if a diagnosis of PTSD were to be made.

(a)      PTSD

29.     The SoP requires (relevantly) that the applicant experienced a severe stressor prior to the clinical onset of PTSD. The expression “experiencing a severe stressor” is defined as follows:

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

30.     While I accept the applicant was alarmed by what he experienced on the Yarra that day in Hong Kong harbour in 1973, evidence of the applicant’s subjective reaction is not enough: see Stoddart v Repatriation Commission (2003) 77 ALD 67, [2003] FCAFC 300. I cannot accept a person in his position with his background and experience would have regarded the incident as constituting a threat of death or physical injury. To begin with, the ship was entering Hong Kong harbour – hardly a hostile port. I accept loud, unexplained noises and movements on a ship might cause one to speculate about what is occurring, and that the speculation might extend to the ship sinking, or to the possibility of someone being injured or killed in a collision. I also accept the prospect of sinking would be particularly dreadful for a non-swimmer like the applicant. But there was not nearly enough information available to the applicant for him to form a view of whether or not a threat existed, and whether or not it was a serious threat. It follows the SoP cannot be satisfied, and the application in this respect must fail.

(b)      Alcohol abuse

31.     The applicant suggested he started drinking heavily immediately following the incident aboard the Yarra. Dr Mulholland agrees it was possible to diagnose the applicant with an alcohol abuse condition from around that time.

32.     In the absence of a diagnosis of PTSD arising out of the incident on the Yarra, the applicant’s claim in respect of alcohol abuse can only succeed if he is able to satisfy me he experienced a severe stressor within the meaning of that SoP. The definition is not exactly the same as the definition of the expression in the SoP relating to PTSD in that it requires the threat “might evoke intense fear, helplessness or horror.” The differences to the definition make no difference to the outcome, however. I am not satisfied the incident aboard the Yarra gave rise to a threat in the relevant sense. It follows the applicant’s claim in respect of alcohol abuse cannot succeed.

(c)      Depressive disorder

33.     The Applicant is unable to satisfy the SoP in relation to depressive disorder because the medical evidence suggests the diagnosis could not be made until 1996. He left the navy more than a decade before that, so nothing occurring during his service could be linked to his depressive condition. In any event, I have already concluded his alcohol abuse condition and PTSD (if he had it) were not related to his service. They cannot be taken into account when determining whether the factors in clause 5 of the SoP are satisfied: see McKenna v Repatriation Commission [1999] FCA 323.

Conclusion

34.     The applicant is in a bad way. He deserves to be compensated. It is unclear to me why he was not compensated by the Victorian Police, given the evidence suggests his conditions are attributable to his experiences while he worked for that organisation – experiences that were apparently exacerbated by a culture of alcohol abuse.

35.     I am unable to provide him the relief he seeks. His experiences in the navy are not the cause of his current predicament. It would strain the legislation and the SoPs to breaking point were I to find in his favour.

36.     The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         Associate: Sam J Appleton

Date/s of Hearing  8 March 2005, Cairns
Date of Decision  24 March 2005, Brisbane
The applicant was represented by Mr Thompson, solicitor.
The respondent was represented by Mr Stoner, departmental advocate.