NICHOLAS CHATTINGTON and REPATRIATION COMMISSION

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[2013] AATA 524  

Division VETERANS' APPEALS DIVISION

File Number

2012/0219

Re

NICHOLAS CHATTINGTON

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 25 July 2013
Place Brisbane

The Tribunal affirms the decision under review.

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

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability pension – Defence service with Royal Australian Navy – Statements of Principles for posttraumatic stress disorder, depressive disorder, alcohol dependence, gastro-oesophageal reflux disease, diabetes mellitus, sleep apnoea and gout –  Clinical onset – Whether veteran experienced a category 1A or 1B stressor – Relevance of “dissociative amnesia” to experiencing a category 1A or 1B stressor – Whether obesity or alcohol consumption related to defence service –  Decision affirmed

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 5, 14, 70, 120B, 196B

CASES

Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Smith (1987) 15 FLR 327
Newlands and Repatriation Commission (2005) AATA 413

SECONDARY MATERIALS

Statements of Principles:

Instruments No’d 12 of 2000[1] and 31 of 2010 for gout
Instruments No’d 14 of 2005 and 42 of 2013 for sleep apnoea
Instruments No’d 12 of 2004[2] and 90 of 2011 for diabetes mellitus
Instrument No 12 of 2005 for gastro-oesophageal reflux disease
Instrument No 28 of 2008[3] for depressive disorder
Instrument No 6 of 2008 for posttraumatic stress disorder

[1] As amended by Instrument No 44 of 2003 in relation to the definition of being obese.

[2] As amended by Instrument No 10 of 2008 in a manner not material to this matter.

[3] As amended by Instrument No 41 of 2010 in a manner not material to this matter.

Instrument No 2 of 2009 for alcohol dependence

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND RECOMMENDED

  1. On 25 August 2009, Nicholas Chattington (the applicant) lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension on the basis that certain conditions from which he suffers were related to his Royal Australian Navy (RAN) service in accordance with s 70 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 19 October 2009 and by the Veterans’ Review Board on 7 December 2011.

    SERVICE

  2. The applicant’s RAN service was from 5 July 1972 until 24 August 1975. He rendered defence service in accordance with section s 70 of the Act from 7 December 1972 until his discharge.

    CAUSATION

  3. Subsection 70(1) of the Act provides that, where a member of the Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease.  The term “disease” is defined in s 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. The criteria of causation are set out in        s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if…

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Details
Case
[2013] AATA 524
Decision Date

CaseChat Overview and Summary

In the case of Nicholas Chattington versus the Repatriation Commission, the applicant sought to establish that his posttraumatic stress disorder (PTSD) was caused by his service in the Royal Australian Navy (RAN). The applicant claimed that he developed PTSD as a result of witnessing traumatic events during his service, specifically the hawser incident and a buoy incident. The case was heard by the Administrative Appeals Tribunal, which had to determine whether the applicant's PTSD was attributable to his service in the RAN.

The central legal issue before the tribunal was whether the applicant's PTSD was caused by his defence service, specifically the hawser incident and the buoy incident. This required an analysis of the applicant's mental health history, the nature of the incidents, and the expert psychiatric evidence provided. The tribunal needed to consider the diagnostic criteria for PTSD as outlined in the relevant statutory instruments and whether these criteria were met by the evidence presented.

The tribunal examined the evidence of the applicant, the psychiatric reports, and the medical records. It found that the applicant's claims of witnessing the hawser incident were not supported by his own recollections or the available evidence. The tribunal preferred the opinion of Dr Mendelson over Dr Rogers and Dr Stephenson, concluding that complete amnesia about an event is inconsistent with PTSD. The tribunal also found that the applicant's reaction to the buoy incident did not meet the diagnostic criteria for PTSD. Based on this, the tribunal concluded that the applicant's PTSD was not caused by his defence service.

The tribunal affirmed the decision of the Repatriation Commission that the applicant's PTSD was not attributable to his service in the RAN. Consequently, the applicant's claims for compensation related to his PTSD were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the respondent, Mr Williams submitted that, as the applicant has no independent recollection of seeing the hawser incident, he did not witness the incident. He also submitted that the incident with the mooring cable on the buoy was not a life-threatening event. While conceding that the applicant may suffer from posttraumatic stress disorder because of other aspects of his life, in particular his post-RAN service of 22 years with the Victorian Police Force, Mr Williams submitted that posttraumatic stress disorder was not defence-caused and that the remaining conditions claimed by the applicant to be related, directly or indirectly, to that condition were not attributable to defence-service. EVIDENCERAN records A copy of the Yarra’s Report of Proceedings for August 1973 was in evidence. It confirmed that a sailor was injured on 14 August 1973 in the hawser incident and that, by the end of that month, had made a “good recovery” and was to be evacuated to Australia.[7] The Report also noted damage to a propeller on 17 August 1973 after the vessel overran a buoy. The incident was confirmed in a report by Mr Brecht (Former RAN Commodore) who, for Writeway Research Service Pty Ltd, completed a report on 1 December 2010.[7] Exhibit 1, T-documents, p. 313. A statement of the applicant’s service record was in evidence. It records that the applicant was discharged from the RAN on 24 August 1975 “at his own request”.[8] The applicant [8] Exhibit 1. T-documents, p. 18. The applicant has no recollection of the hawser incident. His references to it are taken from what he has read about it. On reading the Newlands case, he became aware that he had been aboard the Yarra when the hawser incident occurred. He said that his station as the Yarra was leaving Hong Kong would have been on the deck in proximity to the incident or in the radar room. He had no recollection of which of those two positions he had occupied when the hawser incident occurred. Neither does he have any recollection of his reaction to the incident when it happened. He believed that he had a repressed memory of it because he had made reference to it on occasions when he was heavily intoxicated, such as when he was in the company of friends on periodic fishing trips. They told him that he had spoken of it while intoxicated. They also told him of an occasion when he began to advance across the beach into deep water in what they believed was an apparent suicide attempt from which he was rescued when they realised what he was doing. The applicant recalls the buoy incident. He heard a scraping sound as the Yarra passed across the buoy and feared that the Yarra may have hit a mine. He was in fear for the ship and for himself because he was not able to swim. He ran from the radar room where he had been on duty but was directed to return to his position. He did so and, in his evidence, said that, subsequently, he made no enquiry about what had occurred. The applicant began to consume alcohol when he joined the RAN but increased this after the buoy incident. He was drinking heavily at the end of his RAN service and sought to change his mustering. He commenced training in alternate courses but did not complete them. He fell into disputes with RAN officers and decided to leave the RAN. He then joined the Victoria Police Force where he served for some 22 years, rising to the rank of detective sergeant. He continued until 1996 when he was unable to work because of psychiatric conditions. He left the police force in 1998 and was involved in compensation claims relating to his service. Alcohol questionnaire

Decision

Reasons for decision

The applicant’s obesity is not related to his defence service and, accordingly, factor 5(c) of Instrument No. 12 of 2000 and factor 6(c) of Instrument No. 31 of 2010 are not met. As noted above, alcohol dependence is not a defence caused condition in the applicant and there was no evidence that the continued consumption of alcohol until the onset of gout is related to any aspect of his RAN service. It follows that factor 5(f) of Instrument No. 12 of 2000 and factors 6(f) and 6(g) of Instrument No. 31 of 2010 are not met. I am reasonably satisfied that gout did not arise out of and is not attributable to the applicant’s defence service.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

It is not in dispute that the applicant’s alcohol dependence, depressive disorder, gastro-oesophageal reflux disease, diabetes mellitus, sleep apnoea, obesity and gout had their clinical onset after he developed his posttraumatic stress disorder and were, directly or indirectly, associated with that condition. CONSIDERATION The applicant’s case rests on the issue of whether his posttraumatic stress disorder is defence-caused. This was conceded by Mr Chalk. Clearly, on that issue, there is conflict in the psychiatric evidence. The diagnostic criteria for posttraumatic stress disorder are set out above in criteria A to D in s 3(b) of the Statement of Principles.[26] Criterion A requires that the applicant:(i)was exposed to a traumatic event in which he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and (ii)his response involved intense fear, helplessness, or horror.[26] Instrument No. 6 of 2008. In relation to the hawser incident, Dr Rogers is supported by Dr Stephenson in his opinion that the applicant has posttraumatic stress disorder because he witnessed that incident but repressed the memory of it. Dr Mendelson’s evidence was that complete amnesia about an event, as opposed to partial amnesia, is inconsistent with posttraumatic stress disorder. In that, I prefer the opinion of Dr Mendelson. His well-reasoned, objective analysis contrasted with that of the treating psychiatrist Dr Rogers and also that of Dr Stephenson who, at a point in her evidence, declared that she and the applicant had been able “to put together a tale” which began to make sense. I have noted the evidence of Mr O’Rourke, Mr Johnstone and Mr Eyre. This provided only vague references to a rope or cable incident and did not, on the balance of probabilities, refer to the hawser incident. It would also seem that all of them, as well as the applicant, were operating under the influence of alcohol at the relevant times. Also, I am satisfied that the second element of criterion A has not been made out on the evidence in that there is no evidence of the applicant’s required reaction to the incident. Surprisingly, Dr Stephenson’s evidence was that a serviceman in the field would never be able to experience intense fear, helplessness, or horror and yet that is an essential element of the diagnostic criteria. In relation to the buoy incident, it is not disputed that the applicant witnessed it. Dr Rogers’ opinion was that the applicant’s reaction to this was sufficient to meet the response element of the diagnostic criteria. However, the basis on which he reached that conclusion is not supported by the evidence before me. He concluded that the Yarra was operating in stormy weather and that the applicant had “real reason to believe” that the Yarra had hit a mine.[27] He also described the incident as causing “alarm and panic generally” and providing the crew of the Yarra with “very serious grounds for believing the boat and their lives were at risk”.[28] The Yarra was not operating in stormy conditions and was entering Hong Kong Harbour after avoiding a storm; there is no evidence that anyone had “reason to believe” that the entry to the harbour was mined or that there was general alarm and panic among the crew or fear that their lives were at risk. Dr Rogers’ opinion is not supported by Dr Mulholland, Dr Mendelson or Dr Morris and I am reasonably satisfied that the reaction of the applicant to the buoy incident was not in accordance with criterion A(ii) of the Statement of Principles.[29] [27] Exhibit 1, T-documents, p. 232.[28] Exhibit 1, T-documents, p. 24.[29] Instrument No 6 of 2008.