Re Chaplin and Repatriation Commission
[2000] AATA 688
•4 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1643
VETERANS' APPEALS DIVISION )
Re STEVEN JOHN CHAPLIN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date4 July 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/1643
)
VETERANS' APPEALS DIVISION )
Re STEVEN JOHN CHAPLIN
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 4 July 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1. The Applicant, STEVEN JOHN CHAPLIN, is entitled to pension for the defence-caused disease of Post Traumatic Stress Disorder and
2. The Applicant is entitled to pension for incapacity for the above-mentioned disease as and from 5 February 1997.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Defence caused post traumatic stress disorder. Whether condition in fact existed. Whether Statement of Principles met particularly objective test for a severe stressor.
Veterans' Entitlements Act 1986
Repatriation Commission v Smith 15 FCR 327
Repatriation Commission v Keeley (2000) FCA 532
Midland Metals Overseas Ltd v Comptroller General of Customs 30 FCR 87
Re Quinn v Australian Postal Corporation 15 AAR 519
Mackay and Repatriation Commission (2000) AATA 483
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................Associate
Date of Hearing 4 July 2000
Date of Decision 4 July 2000Solicitor for Applicant Mr R Sherlock,
Legal Aid Commission of NSW
Advocate for Respondent Mr R Wallis, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1998/1643
By MR M.D. ALLEN, SENIOR MEMBER
CHAPLIN and repatriation department
SYDNEY, 4 JULY 2000MR ALLEN: By application made 16 November 1998, the applicant sought review of a determination by the respondent made 18 September 1997 and affirmed by a Veterans' Review Board that his post traumatic stress disorder was not a defence caused disease. The claim relates to the applicant's defence service and is brought pursuant to part 4 of the Veterans' Entitlements Act 1986 as amended and it was not disputed in these proceedings that the applicant had the requisite service under the Act. Question of proof in this matter is pursuant to subsection (4) of section 120 of the said Act which states:
That the Tribunal must be satisfied of the various matters to its reasonable satisfaction.
The Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 equated that standard of proof on the civil standard of proof. Subsection (6) of section 120 of the Veterans' Entitlements Act provides that neither party to this review bears any onus of proof. As the applicant's claim was brought after 1 June 1994 the Tribunal can only be reasonably satisfied as to the link between the condition claimed and the applicant's defence service if it complies the template set out by a so called Statement of Principles.
The Statements of Principles to be applied are as pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley (2000) FCA 532. The Statements of Principles that were in force at the time the primary decision maker made his decision in this matter the particular statutory instruments are number 4, I say again, are number 16 of 1994 as amended by number 226 of 1995.
The primary matter for determination in this matter was whether in fact I was reasonably satisfied that the applicant did suffer from a post traumatic stress disorder. The opinion of his treating psychiatrist, Dr Murray, is that he does, however, Dr Lewin, who saw the applicant on behalf of the respondent was of the contrary opinion. Document T5 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act is a report by Dr Murray to the Department of Veterans' Affairs, that report is dated
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©Auscript Pty Ltd 20007 July 1997 and after taking a history of the matter, Dr Murray
states:I made a diagnosis of post traumatic stress disorder.
At page 2 of his report, Dr Murray says:
I questioned Mr Chaplin specifically regarding symptoms of post traumatic stress disorder, he described being emotionally numbed and said that he felt he had difficulty in intimate relationships. He was troubled by irritability and intolerance of crowds. He dreamed of being locked in shipboard magazines, was troubled by poor sleep, continued to drink alcohol in binges and made recourse to marijuana to help with sleep. Mr Chaplin has a history of abusing amphetamines and says that this arose during his years of Naval service and felt that it was considerably contributed to by the stressors and social context of his work. He was also troubled by episodic depression that he said would last weeks or days at a time and suicidal ideation although he had not made an attempt at suicide.
At page 3 was the diagnosis I had referred to above. Document T8 is a further report by Dr Murray. In that report he refers to certain Statements of Principles and states:
The relationship between the symptoms experienced and the identified stressors mental images of being locked in a magazine further supports a causal connection.
Interestingly enough Dr Murray then says:
Steve has nevertheless said that he has received written word from the department saying that they would pay for treatment of his PTSD.
I am informed from the bar table that on the basis of Dr Murray's reports the respondent has indeed for the purposes of subsection (2) of section 85 of the Veterans' Entitlements Act accepted the applicant's post traumatic stress disorder for treatment. Even though there is no issue estoppel in matters before the Administrative Appeals Tribunal see Midland Metals Overseas Ltd v Comptroller General of Customs 30 FCR 87 and re Quinn v Australian Postal Corporation 15 AAR 519. I find it incongruous that the Department of Veterans' Affairs should accept an illness as present for the purposes of treatment but argue in these proceedings that it does not exist.
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©Auscript Pty Ltd 2000In particular, I regard this approach as contrary to the obligation upon the respondent as a Commonwealth instrumentality to be a model litigant. Part of the obligations undertaken by the Commonwealth as a so called model litigant is said to be to act consistently in the handling of claims and not to require the other party to prove a matter which the Commonwealth knows to be true. It is, of course, quite legitimate to accept an injury or disease as present but to deny it was war caused or related to defence service.
Dr Lewin, psychiatrist, did not accept that the applicant had a post traumatic stress disorder. He did, however, say with regard to Dr Murray that he respected his opinions and that it was possible that the treatment the applicant had undergone with Dr Murray masked the symptoms of his post traumatic stress disorder when he came to see him. Dr Murray was cross-examined in an attempt to show that the applicant does not meet the diagnostic criteria for a post traumatic stress disorder in the Diagnostic Statistical Manual fourth edition, known as DSM4.
Let me say at the outset that DSM is an epidemiological tool and in Mackay and Repatriation Commission (2000) AATA 483 I pointed out that the editors of the DSM state:
That it is an epidemiological tool and not be used for forensic purposes and that it is therefore not proper to use the DSM as a basis for a cross-examination in a "cookbook" fashion.
In any event, Dr Murray in his reports and in particular to his final report, exhibit A2, dated 25 October 1999 makes reference to the DSM4 criteria and in cross-examination adhered to his diagnosis of post traumatic stress disorder even after having perused Dr Lewin's reports. If it is thought that Dr Murray might be too close to his patient I would refer to page 58 of the transcript in this matter where after a discussion with the applicant, he said:
But having said all that I still feel that there's nothing in my experience of this patient that leaves me comfortable asserting that he is malingering or disseminating although as I say there must still be, there's a question in my mind and I continue to entertain it each time I encounter him.
That being said, as I stated, he adhered to his diagnosis of post traumatic stress disorder. Given the qualifications in his evidence by Dr Lewin plus the fact that Dr Murray is the treating medical specialist, I am reasonably satisfied, that is to say, satisfied on the
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©Auscript Pty Ltd 2000balance of probabilities that the applicant does indeed suffer from a post traumatic stress disorder. Instrument 16 of 1994 states:
That a post traumatic stress disorder is connected with the circumstances of service if applicant has (a) experienced a stressor prior to the clinical onset of post traumatic stress disorder. Experiencing a stressor is defined taking its derivation from DSM4 that the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or threat to the person or other people's physical integrity; and (b) the person's response to that event involved intense fear, helplessness or horror. Post traumatic stress disorder is then defined as a psychiatric condition meeting the description from the DSM4 that(a) the person has been exposed to the traumatic event in which (1) the person 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 (2) the person's response involved intense fear, helplessness or horror.
In passing, I note that the creators of the so called Statement of Principles used the DSM for the very purpose for which its editor say it should not be used, that is to say, for forensic purposes. I agree with the opinion of Deputy President McMahon in re Budworth and Repatriaiton Commission (2000) AATA 127 that the test for the experiencing a stressor and the definition in post traumatic stress disorder involves so far as paragraph A stressor of A1 for the definition of post traumatic stress disorder and objective test.
But my agreement as to paragraph B is qualified in that paragraph B or paragraph A2 of PTSD that definition must involve subjective elements by its very wording that seems so. It was submitted by the respondent at paragraph B in the definition of experiencing a stressor:
Had not been met as the applicant in continuing to perform his duties had not demonstrated intense fear, helplessness or horror. This submission does not take into account the conditioning effect of Naval discipline plus the even greater fear of being seen to have let one mates down.
In examining the applicant's evidence I would simply make remarks to the following passages from transcript stating at the outset that it was the applicant's claim that his PTSD was caused by an incident in service where his vessel, HMAS Derwent, was in action stations and the close encounter with a Russian warship during a time leading up to or during the Gulf War and that it was something more than an exercise but there was a very real possibility in his mind that there
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©Auscript Pty Ltd 2000could be some act of hostility or indeed a collision between the ships. He was asked at page 7 where he described his action stations:
I was in action stations was in the magazine which is below the water line on a ship and it's blocked from above. And when we were sent down there from the gun bay the leading hand of the gun bay used to always tell us that once you go down there you are expendable if the ship gets hit, they won't unlock the hatch and let you out to save the lives of the rest of the crew.
Page 8 he says:
He was in there at this particular time from 0600 to 1000 hours, that is to say, some four hours.
He spoke at page 8 where he was asked:
And what did you have in mind that might have happened that would make you expendable in those circumstances?---Well, if the ship was hit and there was a flood or a fire they would seal off that compartment to save the rest of the ship and the rest of the crew.
He was then asked of any incidences he knew of where this happened and he referred there to the situation in the Westralia which happened after the applicant was on the Derwent but it is now well known that four crewmen perished when a decision was made to insert halon gas into the engine room to extinguish a fire. Page 9, the task stated:
We were shadowing a Russian task force, I was worried that we were going to be fired on and I thought that, you know, I could have died.
He was then asked:
How did you feel?---Yes, that's how I felt, I was terrified, I was terrified.
Let me interpose to say that if one says that he was terrified it seems to me that it involves intense fear. At page 11 he was asked about communications from the magazine and mentioned a telephone and said:
It never worked that's why we used to communicate through the hoist where we used to send the rounds up.
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©Auscript Pty Ltd 2000Page 12:
The escape hatch in the centre of the main watertight hatch. I knew it was there but to my knowledge it was locked from the outside otherwise we would be able to let ourselves out.
And did you try? Did you ever try to get through any of these hatches while you were down there?---Yes.
Were you able to do it?---No.
Page 14 he speaks of the situation as it arose:
When the Gulf War started over there the captain got all the crew together and told us that because of the conflict over there we would doing an operational tour over there and that's where we went.
And in the Arabian Sea you were part of a shadowing exercise?---Yes, it wasn't an exercise, it was an operation. An exercise is like with the Americans and people who were on our side, okay.
He was then asked:
What was your greatest fear of being locked in or being attacked, to which he replied, Well, being killed.
I would only interpose here to say with relation to the applicant's knowledge of the escape hatch and its being locked down that it is unfortunate that a member of the Veterans' Review Board in proceedings before that body substituted his supposed knowledge or his experience of events for evidence rather than using his knowledge to appreciate the evidence given. At page 16, the applicant was asked:
Did you go into battle stations, action stations, full state of readiness?---Yes.
And did you go into the final state of readiness?---Yes.
He was then asked:
You would have known your ship by way of access to escape routes to and from the area you were in, to which he replied, Well, there was no escape from the magazine like I've trying to say like it was locked from above, you couldn't get out. All I
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©Auscript Pty Ltd 2000know is that it was locked from above and we were locked in there and I couldn't get out and we tried to get out but couldn't get out. The only way we got out was from someone opening from above the compartment above.
He was asked by the Tribunal:
Your evidence today is that at the time you did not know there was an escape hatch?---Yes, that's right.
Page 19 and 20 there is evidence of his understanding and I would only interpose here to say that there is some material from a Professor Gray but that material is hearsay. Where it is put against the sworn evidence of the applicant, Mr Tapp, then I have no hesitation in accepting the sworn evidence which was given before this Tribunal.
Transcript page 33 has asked about the situation which occurred on and he was asked, were any words used in place of "for exercise" to which he replied "no". Hands to action station which represents that there is an imminent threat but he was asked at the time, did you have any serious thought that a military incident might occur or a naval incident might occur between you and the Soviet ship? He replied, "I was certainly focused to the point where I believe that anything is possible, yes."
He then stated, "I know how I felt was in a state of, that I certainly aware and focused on what was happening". That last two comments is a comment by Mr Tapp, who was a leading seaman on the Derwent and in charge of the mess in which the applicant was stationed. Mr Tapp said, as to his position, "I had the responsibility of being leading hand of the mess which incorporates maintaining morale, other things where I had about 60 men under me."
Mr Tapp's place during action stations was in the operations room so he has a reasonable idea of what was going on. It was he who said, action stations represents an immediate threat and that he was aware and focused on what was happening. He was then asked about the applicant, who as stated, was under his immediate supervision. He was asked, "I understand that at some time after this incident of the stalking of the Soviet warship, there was a discussion between the pair of you and its effect upon Mr Chaplin.
He asked her account. He said "In effect, I noticed that his demeanour, his whole personality, changed to some extent where his discipline had dropped off, his tardiness. He was slow to react to situations of even getting out of bed. I noticed he would be very lethargic and I asked him, was there anything wrong which I could
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©Auscript Pty Ltd 2000help him with? He confided in me that, he felt fairly distressed and traumatised by the incident which had preceded it and I then said to him that, I believed he should seek some sort of medical attention to address the problem.
He also spoke of the incident on the Westralia and the flooding of the compartment. He was then asked in cross-examination whether it was just a precautionary measure what happened on the particular morning in question, to which he replied, "No. I didn't think it. The captain did. That's why the ship went into action station." He was asked, "But would you agree it was a precautionary measure?" "No, I wouldn't agree with that at all."
He was asked, "Did Mr Chaplin raise with you the issue that there was no escape hatch and you couldn't get out?" "Yes, he did." "Did you tell him there was one?" "I told him, I asked him, what do you mean why you can't get out?" and he said, "I just couldn't see a way out." He said, "He tried to communicate internally by the phones and they were unserviceable at the time as well, which didn't surprise me considering the age of the ship. I didn't investigate or follow into it" but, more importantly, he added, "I know there was a report made into the unserviceability of the hatch and the telephone. "That wasn't my responsibility to follow that up."
To me, that very remark corroborates the applicant's evidence as to the inability to get out and the fact that there were problems with the phone and the escape hatch. Questioned further, he said, he noticed a change in the applicant. He confronted him. He said that, he had been traumatised by what happened to the effect he couldn't get out of bed, things like that, and was saying he couldn't sleep properly, things like that. He was asked, "Did you notice any other sailors were having problems after this incident?" "Yes."
I would also mention that I was informed very properly by the respondent that the report of proceedings of HMAS Derwent for the period in question are classified documents and therefore not available. That means, to my mind, objections suggested by Professor Gray as to the applicant's evidence cannot be sustained as opposed to the unequivocal, sworn evidence of the applicant and Mr Tapp.
I have recapitulated that evidence in some detail because it leads me to the inevitable decision that the criteria from the Statement of Principles for post traumatic stress disorder, namely experiencing a stressor prior to the clinical onset of post traumatic stress disorder, in that the applicant experienced a stressor being confronted with an event, i.e being in the magazine with the perception that he could not
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©Auscript Pty Ltd 2000get out, which appears to be quite real, given the other evidence of Mr Tapp.
There was threatened death or serious injury if matters had got out of hand with the Russian warship. At one stage, they were some 60 metres apart, I believe and that the applicant's response involved intense fear in that he was terrified. That being so, the SOP having met, I am satisfied to the requisite standard, not only has the SOP be made out but that the applicant has post traumatic stress disorder which is attributable to his defence service.
That being so, the decision under review will be set aside and the Tribunal will substitute its decision, namely that the applicant, Stephen John Chaplin, is entitled to pension for the defence caused disease of post traumatic stress disorder.
RECORDED : not transcribed
MR ALLEN: The entitlement to pension will date as and from the 5th day of February 1997.
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