Achurch and Comcare
[2003] AATA 902
•12 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 902
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/428
GENERAL ADMINISTRATIVE DIVISION ) Re STEWART ACHURCH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Dr D. Weerasooriya, Member
Date12 September 2003
PlacePerth
Decision 1. The Tribunal varies the decision under review to provide that employment did contribute to an aggravation of the prodromal phase of Mr Achurch’s schizophrenia, but the aggravation did not result in incapacity or impairment so as to entitle Mr Achurch to compensation in respect of his chronic schizophrenia. 2. The Tribunal orders pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) that the applicant’s costs of this application be paid by the respondent. (Sgd) Joan Dwyer
Senior Member
I N D E X
PARAGRAPH
NATURE OF APPLICATION................................................................................................ 1
LEGISLATIVE PROVISIONS................................................................................................ 4
THE ISSUES........................................................................................................................... 6
PROCEDURAL MATTERS................................................................................................. 10
THE ISSUES IDENTIFIED BY THE PARTIES................................................................ 18
ISSUE (i) TREATMENT DURING SERVICE.................................................................... 21
ISSUE (i)(b) FINDINGS AS TO TREATMENT DURING SERVICE.............................. 69
ISSUE (ii) WHETHER EMPLOYMENT CONTRIBUTED TO AN AGGRAVATION OF THE AILMENT............................................................................................................................................. 82
ISSUE (iii) WHETHER THE SCHIZOPHRENIA WAS AGGRAVATED BY DELAY IN TREATMENT........................................................................................................................................... 127
CONCLUSION.................................................................................................................... 172
COMPENSATION – whether employment in Navy contributed to aggravation or acceleration of schizophrenia – harsh treatment during service – applicant young and immature – lack of persuasive medical evidence that harsh treatment aggravated schizophrenia – whether delay in commencing treatment aggravated schizophrenia by making it more severe or more resistant to treatment than it would have been if symptoms had been detected and led to referral for medical treatment earlier – evidence that treatment with anti-psychotics is not appropriate until clear psychotic symptoms are diagnosed – lack of evidence of clear psychotic symptoms or of clear change in behaviour such as to require medical assessment until approximately February 1998 at earliest – course of referral and treatment from that time appropriate – decision affirmed
PRACTICE AND PROCEDURE – deficiency in documents lodged with the Tribunal before the hearing – relevance of General Practice Direction
INQUISITORIAL PROCEDURES – further documents produced on last day of hearing – invitation to parties to request further hearing to put that material to medical witnesses – parties declined that invitation – position less than ideal but Tribunal not in a position to put parties to expense of further hearing with expert medical evidence and requiring video evidence if neither party requests such a further hearing
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14 and 67(8)
Cases
Bushell v Repatriation Commission (1992) 109 ALR 30........................................................... 8
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626................................................... 28
Johnston v The Commonwealth (1982) 150 CLR 331............................................................ 28
Re Leone and Director-General of Social Security (1982) 4 ALN N104................................ 30
CommonwealthBanking Corporation v Percival (1988) 9 AAR 206...................................... 39
Tippett v Australian Postal Corporation [1998] 335 FCA, 6 April 1998.................................. 39
REASONS FOR DECISION
12 September Mrs Joan Dwyer, Senior Member
Dr. D. Weerasooriya, Member
NATURE OF APPLICATION
1. This is an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) on 4 April 2000 (T52). That decision affirmed a primary determination made on 14 December 1999 (T47) which rejected Mr Achurch’s claim for compensation for a psychiatric condition. It was not in dispute that Mr Achurch suffers from chronic severe schizophrenia, nor that he first received medical treatment in respect of that disease during his Naval service.
2. Mr Achurch, who was born on 7 April 1979, joined the Royal Australian Navy (“the Navy”) on 5 June 1995 at the age of 16. Within three years, on 14 May 1998, he was diagnosed as “almost certainly psychotic” by Dr. McCarthy, a psychiatrist, who recommended “Discharge: Medically Unfit for Naval Service”. From 14 May 1998 until 7 July 1998, Mr Achurch was an involuntary patient at Joondalup Health Campus, where he received treatment for schizophrenia. Mr Achurch was discharged from the RAN as “Permanently Unfit for Naval Service” on 11 December 1998. Mr Achurch has had many hospital admissions for lengthy periods since that first admission in May 1998. The evidence is he cannot work or live independently, by reason of his chronic severe schizophrenia.
3. It is not in dispute that Mr Achurch, during his Naval service suffered schizophrenia which has resulted in incapacity for work or impairment. The issue is whether employment contributed to an aggravation of the schizophrenia. The applicant did not claim that employment caused the schizophrenia.
LEGISLATIVE PROVISIONS
4. It is necessary to consider how the Act imposes liability to pay compensation for an aggravation of a disease. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an “injury” suffered by an employee if the “injury” results in incapacity for work or impairment. The definition of “injury” in s 4 of the Act, so far as relevant, provides:
“injury” means:
(a) a disease suffered by an employee; or
. . .
The term “disease” is defined in s 4 of the Act as follows:
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation. (emphasis added)
The word “ailment” is also defined in s 4. That definition provides:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The term “aggravation” is defined, in s 4 of the Act, as including “acceleration or recurrence”.
5. Thus the Act does not use the word “disease” as it is commonly used. Under the Act the term “ailment” is used to describe what is usually considered a “disease”, in ordinary language. It is only if an “ailment” or “the aggravation of any such ailment”, is “contributed to in a material degree by the employee’s employment” that it becomes a “disease” as defined in the Act and an “injury” for which compensation is payable under s 14 of the Act.
THE ISSUES
6. The issue we must decide is whether Mr Achurch’s employment in the Navy aggravated his schizophrenia. That could be by making it more severe, more resistant to treatment or by making it more persistent in terms of not having the sort of remission that would in many cases be expected after a first episode of schizophrenia.
7. The determination of that issue has been difficult, due to a lack of medical knowledge about the causes of schizophrenia and in particular to a lack of medical knowledge about the relationship between life events and schizophrenia. The problems were not assisted by the fact that Mr Achurch was not fit to give evidence, or by gaps in the evidence presented by the parties, as is set out under the heading, “Procedural Matters” in paragraphs 10 to 17 of these reasons.
8. It appears to the Tribunal, having regard to the parties’ submissions, that there are in substance three questions to be determined:
(i)Was Mr Achurch subjected to bullying, harsh and humiliating treatment during service by way of verbal abuse, and teasing?
(ii)If so, did that treatment contribute to a material degree to an aggravation of Mr Achurch’s schizophrenia?
(iii)Was there a delay in treatment of Mr Achurch’s schizophrenia which aggravated the ailment and increased his impairment or incapacity?
9. After carefully considering the material before it, the Tribunal has concluded that Mr Achurch was subjected, over much of his service, to bullying, harsh and humiliating treatment by way of verbal abuse and teasing and that such treatment contributed to a material degree to an aggravation of the prodromal or earliest stage of Mr Achurch’s schizophrenia. However, the Tribunal does not find that the aggravation of the disease at that early stage resulted in incapacity or impairment. Nor does the Tribunal find that there was a delay in treatment which aggravated the schizophrenia and resulted in impairment or incapacity. The Tribunal has determined that the decision under review should be varied. The Tribunal’s reasons for this decision are as follows.
PROCEDURAL MATTERS
10. Ms Henderson, a solicitor, appeared for the applicant on the first day of hearing with the applicant’s Counsel, Ms Crawford, who unfortunately had laryngitis. On the second and third days of hearing Mr Heron of Counsel appeared with Ms Crawford. Mr Kelly of Counsel appeared for the respondent. The Tribunal was informed that Mr Achurch was not fit to attend the hearing. His mother, Mrs Plastow, who holds a power of attorney for him, was present at the hearing on his behalf. She also gave evidence. Mr Hutchinson, Mr Wicker and Mr Sharma, all of whom served with Mr Achurch in HMAS Adelaide, gave evidence on his behalf. As none of them were living in Perth at the time of the hearing they gave video evidence, as did Professor McGorry, who is from Melbourne. Dr Burvill appeared and gave evidence on behalf of the applicant. The respondent called Mr Wort, Mr Davis, Mr Laurie and Lieutenant Commander Orchard and also Dr Terace. Mr Wort, Mr Laurie and Mr Davis gave video evidence. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing.
11. The Tribunal during the hearing commented a number of times on what seemed to be the omission of relevant material from the T documents. Additional T documents extracted from the applicant’s Service and Medical Records files were handed up to the Tribunal on the last afternoon of the hearing (additional T docs Bundles 1 and 2) together with other relevant material extracted from summonsed medical files which was taken into evidence as exhibit R10.
12. Another problem adverted to by the Tribunal early in the first day of hearing (trans. pp38, 83, 84) was the lack of indication in the Statements of Facts and Contentions lodged by the parties as to how they were putting their case. Although the contentions in each case were very briefly stated, the problem was not so significant in respect of the applicant’s case. That was because the Facts section of the document contained a good indication of the way the matter was being put, and also a written opening was provided by Ms Henderson at the commencement of the hearing. In short, the applicant claimed that Mr Achurch’s schizophrenia had been aggravated by stress during service as a result of verbal abuse, and other belittling and humiliating treatment, and/or by a failure to detect and treat the condition at any early stage.
13. The Tribunal found the question as to how the respondent was putting its case somewhat confusing. The respondent’s Statement of Facts and Contentions contained no allegation of drug taking by Mr Achurch, nor did it contend that drug taking was relevant to his condition. Yet Mr Kelly cross-examined the applicant’s first witness, Mr Hutchinson (trans. pp38-39), as to whether Mr Achurch may have taken drugs while serving in HMAS Adelaide.
14. The issue of drugs was again raised in cross-examination of Mrs Plastow. The Tribunal therefore asked Mr Kelly to give the Tribunal an indication, after the luncheon adjournment on the first day of hearing, as to how the respondent was putting its case. When the hearing resumed, Mr Kelly explained (trans. pp85-86):
… Senior Member, the position is the respondent says, first of all, that Mr Achurch suffered from a disease which was not aggravated by his employment. That it was autogenous in nature or possibly drug induced. In the alternative, any aggravation which he may have suffered arose out of reasonable disciplinary action. That there was no material contribution by way of failure to diagnose or treat. …
By that I should make clear, I suppose, Senior Member, that I am not saying that a failure to diagnose or treat would not constitute a material contribution. I am saying there was no failure to diagnose or treat.
MR KELLY: In the further alternative, any aggravation was temporary and resolved with resolution of the first episode of psychosis. And then, Senior Member, you directed my attention specifically to the issue of drugs. There is clearly no evidence of use on board the ship. We concede that. We say there will be evidence from Mr Laurie and Mr Davis of drug use which pre-dated the onset of psychosis. Indeed, we say the evidence of Mr Achurch such as it is supports that as well, although there is obviously concerns regarding the reliability of that evidence.
MRS DWYER: The evidence of Mr Achurch. You mean the history
MR KELLY: Yes, the history, yes.
MRS DWYER: - - - he gave to Lieutenant Ferguson?
MR KELLY: For those reasons we do not suggest that there was any wilful misconduct on the part of Mr Achurch because I think the evidence would fall well short of establishing that. We merely suggest that it is a possible alternative cause of the onset of the condition.
The Tribunal suggested to Mr Kelly at trans. p127:
MRS DWYER: There is nobody in your camp, Mr Kelly, who says: I believe his condition was caused by taking marijuana.
MR KELLY: No, that is true, Senior Member.
15. The hearing proceeded for three days. When the Tribunal considered the additional material lodged on the third day of hearing, it saw that the material had more reference to drug use than the evidence had led it to expect. The Tribunal therefore arranged for the District Registrar to write to the parties on 21 November 2002 as follows:
The Tribunal is of the view that the additional material lodged by the respondent on the third day of hearing should have been lodged and exchanged prior to the hearing. In particular the Tribunal is most concerned that the detailed medical records in exhibit R10 were not put before all three psychiatrists who gave evidence. Those records suggest a much more significant history of drug use than was indicated by the evidence at the hearing. That raises an issue as to whether the hearing should resume for one day to take further evidence on matters raised by the material which was not before the Tribunal until the last day of hearing.
The Tribunal invites the parties’ views as to whether the Tribunal hearing should resume so that:
(i)Ms Plastow can be recalled to give evidence as to the histories in those records, and
(ii)all three psychiatrists can be recalled after they have read the material in A10 and relevant material in the other bundles, being pages 1-3 of the Medical Records and pp33-61 from the other additional documents (better copies of pp40-46 would be required).
The Tribunal’s suggestion would be that further evidence should be given by all the psychiatrists at the same time, i.e. in the presence of each other, in what is sometimes called “a hot tub”, if necessary with Professor McGorry again on video.
The Tribunal is concerned about the cost of such a further hearing and wonders whether the respondent would agree to pay the applicant’s costs on the basis that the need for that further hearing only arises because of the filing of a significant amount of relevant material after two psychiatrists had given evidence.
Would the parties please let me have their responses within seven days. The Tribunal suggests that the parties may like to discuss this matter together to see if they can reach an agreed position.
We arranged for those letters to be sent bearing in mind Mr Kelly’s acknowledgment that none of the respondent’s witnesses had expressed the opinion that Mr Achurch’s schizophrenia was caused by taking drugs.
16. Neither party agreed with the suggestion that the hearing should resume. The Tribunal therefore arranged for the parties to be advised, by letter dated 18 December 2002, that the Tribunal would make its decision on the evidence then before it, with the assistance of the parties’ written submissions. Those submissions were received and have been considered.
17. It is appropriate to say that we consider the position in which we were placed, to be less than ideal. We are of course conscious of the comments of Brennan J, as he then was, in Bushell v Repatriation Commission (1992) 109 ALR 30 at 43, where his Honour said:
Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
However, it is simply not practical for the Tribunal to put the parties to the expense of a further hearing, especially one involving expert witnesses and video evidence, when neither party seeks such a further hearing.
THE ISSUES IDENTIFIED BY THE PARTIES
18. The applicant’s closing submissions set out the issues for determination as follows:
The Issue for Determination
3.The issue for determination in these proceedings is whether the applicant suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
4.On behalf of the applicant it is contended that he suffered an ailment, namely the onset of schizophrenia, disorganised type, during his employment in the Navy which was aggravated in a material degree by that employment. Further, it is contended that the onset of schizophrenia, disorganised type was aggravated by:
·bullying, harsh and humiliating treatment by superiors and others during the early stage of the condition; and
·the failure to ensure early treatment for the condition.
5.The failure to detect and treat at an early stage, in particular, is said to be responsible for the current diagnosis of chronic schizophrenia, disorganised type. That is to say the delay in treatment has caused or contributed to the severity and chronicity of the applicant’s current psychiatric condition.
6.It is submitted that the relevant issues for determination are as follows:
(a)whether the applicant suffered the onset of an ailment, namely schizophrenia during naval service;
(b)whether there was an aggravation of the ailment that was contributed to, in a material degree, by the employment.
19. The respondent’s closing submissions raised the following questions:
Was the Applicant subjected to Bullying/Harassment?
Was the Applicant’s Condition Materially Aggravated by his Treatment at the Hands of His Fellow Sailors/Superior Officers?
The respondent also referred to the medical evidence under the headings, "The alleged failure to treat" and "Drugs".
20. It is on the basis of those submissions and the evidence that we have identified the relevant issues in the way set out in paragraph 8 of these reasons.
ISSUE (i) TREATMENT DURING SERVICE
21. It is not in dispute that Mr Achurch was the youngest member of the ship’s company when he joined HMAS Adelaide on 23 October 1995 (R7) at the completion of his recruit training at HMAS Cerberus. At that time he was aged 16½ years.
22. Although Mr Achurch had been described as immature in his pre-entry psychological interview (additional T docs Bundle 1 p3), the overall assessment was that he appeared “to have the potential to develop within the military environment and looks worthy of the benefit of the doubt”.
23. There is no evidence that any significant problems developed until Mr Achurch had been in HMAS Adelaide for three or six months. There was some discrepancy as to when problems were first noticed, but there was general agreement that problems did develop while Mr Achurch was serving in HMAS Adelaide. It was suggested by some witnesses that perhaps Mr Achurch’s problems were not noticed at first, because allowances are made during a settling in period after first joining a ship’s crew, and that it was only when Mr Achurch failed to progress after that time, that the senior sailors and his fellow seamen began to be frustrated by his inability to learn and remember drills and procedures.
24. The Tribunal heard evidence from a number of sailors and officers who had served with Mr Achurch in HMAS Adelaide. On the whole they impressed us as telling the truth to the best of their ability and recollection, although, there were differences in emphasis. It is necessary to make findings as to Mr Achurch’s treatment during service, but there was considerable agreement among the witnesses for the applicant and the respondent. Mr Kelly in paragraphs 14-16 of the respondent’s closing submissions stated:
14.The respondent submits that the Tribunal would find on the balance of probabilities that the applicant was yelled at, sworn at, teased and/or berated from time to time in the course of his service on board HMAS Adelaide, but that the treatment to which he was subjected constituted the normal treatment to which any sailor is exposed in the course of ship-board life and duty, and fell short of bullying or harassment in the nature of that alleged. To the extent that the applicant was more frequently exposed to such treatment than other members of the crew it was because he had a greater tendency to make errors in the performance of his duties (Hutchinson, Transcript, p36; Wicker, Ex A8, p2)..
15.The respondent accepts that the respondent’s officers’ treatment of the applicant, although in the respondent’s submission generally directed to promotion of on-board discipline, safety and efficiency, falls short of constituting disciplinary action within the meaning of s4 of the SRC Act.
16.The respondent also accepts that its treatment of the applicant, though in the respondent’s submission falling short of harassment/bullying, may still give rise to liability in the event that it is found to have materially contributed towards an aggravation of the applicant’s condition.
It is that last issue, whether the treatment materially contributed to an aggravation of the schizophrenia, and whether if so, such aggravation resulted in incapacity or impairment, that has proved the problem for Mr Achurch in this matter.
25. Mr Hutchinson, who gave evidence first, was close in age to Mr Achurch. He joined the Navy just a year earlier than Mr Achurch and met Mr Achurch when he joined HMAS Adelaide. Mr Hutchinson was an Able Seaman in the same gunnery team as Mr Achurch. We found Mr Hutchinson to be a very helpful witness. We find that he was honest, and he had some insight into the situation. Although he was a friend of Mr Achurch, we do not consider that fact coloured his evidence. He, like the other witnesses for Mr Achurch, is no longer serving with the Navy.
26. Mr Hutchinson said that at first he did not think Mr Achurch was different from any other young Seaman. He said that he did note quite early, that he would stare when he was being given instruction, as if trying to work out what he was being told to do. Mr Hutchinson said in his statement (A6), that towards the end of 1996 he first noticed that Mr Achurch was subject to, what he described as “constant verbal abuse in relation to his inability to follow instructions and to recollect procedures”. Mr Hutchinson, gave examples of the abuse, such as, “you’re an idiot” and, “if I’ve told you once I’ve told you a thousand times”. He also said there was "name calling". He said those sort of comments were directed to Mr Achurch on a daily basis.
27. The Tribunal asked Mr Hutchinson to give examples of the "name calling". He was reluctant to do so but finally said that it involved the use of Navy expressions, such as “cluster”, “shark’s arse” and “skull”, to give just three examples. He said the comments were made on a daily basis and in a hostile manner. When asked to identify those who used those names he specified Leading Hands Wort and Smart, who gave evidence, and also another Leading Hand and a Petty Officer and a Chief Petty Officer.
28. Mr Hutchinson acknowledged that the senior sailors became frustrated as Mr Achurch did not progress, and kept making the same mistakes, and that was the reason why he was berated so frequently. He said (trans. p28):
We would do boat watches in the morning where your team would assemble with the executive officer of the ship and you would be detailed tasks. So, there may be 5 or 6 able seamen who would be delegated to a leading hand. That leading seaman would coordinate and supervise that job and it became very clear that none of these leading seamen wanted Mr Achurch on their team and they would say so frequently. Given that Mr Achurch could not be given a set of tasks and be left to complete that task without some sort of disaster taking place. So among the leading seamen and supervisors, and indeed, among the able seamen, if Stewart was part of your delegated group, it was almost dread because you had to watch him constantly, follow up his work, tell him to do things 10 times over and there would certainly be mistakes a lot more frequently than anybody else because the tasks simply were not hard.
Mr Hutchinson also pointed out that Mr Achurch became self conscious and nervous, because he kept on making mistakes, and this made him make even more mistakes.
29. Of the people named by Mr Hutchinson, Mr Wort, who is no longer in the Navy, and Petty Officer Smart, both gave evidence. Mr Wort agreed that he did yell at Mr Achurch. He said (trans. p168):
[W]hen you've got a crew of over 200 people and one person is one of the main instigators of - of having - having dramas with his job, well then, yeah, of course they're going to be singled out at times. But, yeah, I do say that, yes I did yell at Stuart [sic] Achurch a few times and I would be one of the main instigators because he was in my part of the ship for 98 per cent of the time that he was on HMAS Adelaide.
30. Mr Wort said it could be that he yelled at Mr Achurch daily, hourly or weekly depending on how often he “stuffed up”. He said, “Mr Achurch’s performance of his duties as part of ship became worse”. He said on a day-to-day basis Mr Achurch “stuffed up approximately none to three times a day”. Mr Wicker said he observed berating of Mr Achurch “multiple times within an hour”.. He said he spoke to the supervisors and it tapered off, but then it built up again. Mr Wort said that overall Mr Achurch’s performance of his duties became worse.
31. Petty Officer Smart said that he was disappointed to hear that Mr Hutchinson had named him as one of the people who abused or yelled at Mr Achurch, but he did not deny that there is a time and place for yelling at people who make mistakes. Nor did he disagree, when it was put to him that people who get frustrated may call someone an "idiot". He recognised the terms “cluster” and “skull” and said that they are commonly used Navy terms. Petty Officer Smart said that it was his view that 16 was too young to join the Navy, although, he recognised that some 16 year olds do well. He said that it was his opinion that Mr Achurch, “just wasn’t up to it. He wasn’t a Defence Force person. He was too gentle or soft. He was a great kid but not as able to cope with pressures in the adult world as someone more robust would be.” He said that he had raised those concerns with Chief Petty Officer Hogan and Chief Petty Officer Morris, but had not heard anything more about it.
32. Mr Hutchinson said that Mr Achurch was frequently in trouble for being late on watch or for not performing his duties on watch as required. But he explained that it made no difference, Mr Achurch would still be late on watch, he would still not keep his look out post, he would still fail to pick up a ship when on watch. He said that Mr Achurch was also often disciplined for falling asleep at the helm and for keeping his rack (the Naval term for bunk) untidy. Also, he would sleep in and then be late for duty. Neither abuse nor punishment changed the situation.
33. Mr Hutchinson said that senior sailors would make comments to Mr Achurch like, “you watch what happens if I have my way with you”, or would threaten to give Mr Achurch a hiding or to have him charged with "conduct unbecoming".
34. Petty Officer Smart, who gave evidence for the respondent, was the Leading Hand with responsibility for the Mess. He confirmed that it did not matter how often he spoke to Mr Achurch about problems like not keeping his rack tidy, or going to bed late and then having difficulty getting up in the morning, Mr Achurch did not change his behaviour. Petty Officer Smart said that he referred Mr Achurch to the Naval Police, Chief Petty Officer Brimfield, for action. He said that he was disappointed that no formal disciplinary action was taken against Mr Achurch for these breaches of Navy rules, as it was his view that, if disciplinary action had been taken, it might have improved Mr Achurch’s performance.
35. All the witnesses who knew anything about Mr Achurch’s performance of his duties, mentioned how heavily he relied on an electronic pocket organiser. Mr Hutchinson explained that when fellow seamen realised what difficulty Mr Achurch had in remembering instructions, they suggested that he buy himself a pocket organiser. He did, and for a time this improved his performance, but he became so completely reliant on it, that, when he lost it, in late 1997, he was quite frantic. Mr Hutchinson said it happened in Darwin and Mr Achurch came running up to him while he was having dinner with a friend “sweating”, very agitated and just kept on saying, “I’ve lost my brain". Although many witnesses agreed that sailors often use an "aide-memoire", usually a note book, called in Naval jargon, a "handy billy", the evidence was that Mr Achurch was more reliant on his electronic organiser than was usual. However, somewhat to our surprise there was no evidence that he replaced the lost pocket organiser. Nor was there evidence that after it was lost his performance deteriorated markedly, until he was posted to a Patrol Boat Gunnery course at HMAS Cerberus in March 1998.
36. Mr Hutchinson remembered two occasions when Mr Achurch made, what appeared to be, stupid mistakes, and was berated for doing so. One was when he spilt an entire drum of paint over the flight deck. Mr Hutchinson said on that occasion Petty Officer Wort and Chief Morris heavily berated him and the flight deck crew came out and “had a turn with him”. He explained that involved "shoving and a slap around the back of the head" and physical intimidation. He described people standing very close to Mr Achurch, all around him, and swearing, name calling and threats on that occasion. Mrs Plastow said that she remembered being contacted by Mr Achurch and the Navy about that incident (trans. p67). She said Mr Achurch was upset and said “I am in big trouble”. The man who rang her said “He has got to get used to my ways”.
37. Mr Hutchinson also described an incident when the crew were having training in ceremonial duties, and were carrying rifles with one blank round in them. Mr Achurch’s gun discharged unexpectedly, and almost shot Mr Hutchinson in the leg. Mr Achurch was "jumped on" by three or four leading seamen and removed from the ceremonial guard drill.
38. A third mistake was described by Mr Wort, who gave evidence for the respondent. On one occasion, Mr Achurch was told to throw the lines to the wharf when the ship had to be docked. He failed to tie the end of the line to the ship, or to stand on the end of the line, so the whole line fell overboard. Then, when Mr Achurch was asked to do it again, with a spare line, he again missed the wharf. Mr Wort said that he stood and watched the line go over the side and be lost again. Mr Wort said that as a result of this he was extremely frustrated, and "may have yelled at Mr Achurch”. We have no doubt that he did yell at Mr Achurch on that occasion. It would have been a natural reaction.
39. At one stage Mr Achurch was transferred to be in charge of the paint store in HMAS Adelaide. According to the chronology prepared by Mrs Plastow, Mr Achurch was in the paint store from 1 February 1998 to 23 February 1998. There was a considerable discrepancy of views as to whether the transfer to the paint store showed that Mr Achurch’s performance had improved, or, whether it indicated that it was so bad that he had to be kept away from the other crew, and the paint store was one position in which he could be placed.
40. Mr Hutchinson saw the paint store duties, as menial, lower order and unpleasant tasks. He said the paint store had fumes and was not a nice place to be. He felt that Mr Achurch was left there so he could not bother his superiors. Mr Wicker, at the time was the Chief Boatswain’s Mate or Chief Seaman in HMAS Adelaide. It was his decision to place Mr Achurch in the paint store. He said he put Mr Achurch in the paint store because he was “down on himself. Lacking a bit of self esteem” (trans. p95). He said he saw it as a responsible position where he, Mr Wicker, could keep an eye on Mr Achurch. He said he observed that Mr Achurch did the paint store duties "slowly but surely", and his performance of the duties was "not too bad". Petty Officer Smart, on the other hand, said that he thought that the fact that Mr Achurch was given "such responsible duties", showed that Mr Achurch was improving toward the end of his time in HMAS Adelaide.
41. On the issue of the paint store duties, we prefer the evidence of Mr Wicker, who actually made the decision to give Mr Achurch those duties. We find that Mr Achurch was transferred to the paint store because of problems with his performance of other duties, in an attempt to bolster his self confidence and self esteem. Other reasons were to keep him away from other people so that he was not constantly teased by his team, and to have him somewhere where Mr Wicker could keep an eye on him. Mr Wicker said one factor which led to the move was that quite a few of the Leading Hands were becoming frustrated in dealing with Mr Achurch.
42. There was also evidence as to two occasions when Mr Achurch was physically assaulted by crew members of HMAS Adelaide. Mr Hutchinson described one occasion when he, Mr Achurch and three other crew members had hired a car while on shore leave in Tasmania. He said that Mr Achurch had been constantly late and disorganised, had been short of money and had got lost a few times. Just at the end of the trip, when they were about to wash and return the car, Mr Achurch said he did not want to do that. One of the leading seamen “snapped” and started to punch Mr Achurch in the face. Mr Hutchinson said he pushed Mr Achurch out of the car and told the driver to drive on, because he did not want the Leading Seaman to get out of the car and continue the incident. He said it “was certainly very ferocious” (trans. p30). He said Mr Achurch did not make any official complaint about the incident. The incident was confirmed by Mr Wort and by Petty Officer Smart who said he saw the black eye and enquired about it. He stated at paragraph 17 of his summary of evidence:
I recall an incident when HMAS Adelaide was in Hobart. Stewart and a group of sailors hired a vehicle and went to Port Arthur. When they returned to the ship I noticed that Stewart had a black eye. I inquired about this and evidently Stewart had made a comment and annoyed one of the group and got hit in the eye for his trouble. Stewart was not upset about this and accepted that he probably deserved it and did not want to lodge an official complaint.
43. The other physical assault was raised by Mrs Plastow, who was recounting what she said Mr Achurch had told her. It involved Mr Achurch serving a sausage to a Chief Petty Officer at his request, when the cook was not available. Mrs Plastow said that she had been told that when the cook learnt of it, he grabbed Mr Achurch by the throat and threatened him. Chief Petty Officer Smart said he knew nothing of the incident and thought it was unlikely to have occurred as described. As there was no evidence of any witness to the incident we have not given it any weight.
44. Mr Wicker said that Mr Achurch was a “bright eyed young lad just starting out in life really” (trans. p88), when he first met him, but about three months “down the track, he . . . started to fall apart a little bit” (trans. p89), and then started to go backwards.
45. Mr Wicker said that Mr Achurch just did not seem able to learn and remember aspects of gunnery drill which usually become second nature. He said Mr Achurch started to get annoyed with himself, and then his supervisors became frustrated because he could not carry on at the same level as everybody else. He said (trans. p90):
They started berating him. Started taking the rinse or the mickey out of him. And just generally more or less, say, bullying tactics.
46. Mr Wicker also described a tease about McDonald’s. He said that Mr Achurch was frequently asked, “Would you like fries with that”? He said it meant that the only place Mr Achurch would ever get a job was McDonald’s. He said it was, “like an open day on him . . . almost to the point of harassment”. He said just about everybody was doing it. Petty Officer Smart also described that tease, although he said he saw nothing wrong with it. He said (trans. p211):
One of the examples about Stewart was everyone - when Stewart did make mistakes, they used to say, you know, "Would you like fries with that burger?" Things like that. Just implying that, you know, you shouldn't be here. You should be serving fries at Hungry Jacks or something. If he had gone and got the wrong piece of kit - you know, we had sent him away to get a piece of kit for an evolution and he would come back with the wrong one. We would send him. You know, the guys would say, well, you know, can you go and get a left handed screw driver. Just those sorts of things. But you do it to everybody. It was done to me when I first joined and wasn't au fait with the different things within the Defence Force. But it wasn't anything sort of over the top.
47. Commander Orchard was the Divisional Officer on HMAS Adelaide from 15 January 1996. It was one of his duties to complete divisional reports on each sailor every July and June. He signed Performance Evaluation Reports for Mr Achurch in January and July 1996 and January 1997. The report for July 1997 was prepared by Commander Orchard but signed by another officer as he had been posted off HMAS Adelaide in June 1997.
48. Commander Orchard took a different view of the tease about french fries to that of Petty Officer Smart. He said he was unaware of that tease and he hoped it did not happen. He explained (trans. p198):
Well because that is not the sort of thing you would say basically. And I would [hope] that had one of the Leading Seaman or the Petty Officers heard that they would have said something quietly to the guy and said to Stuart, [sic] you know: disregard that mate and get on; and if it was a continual thing then that senior sailor on Stuart's [sic] behalf could raise an equity and diversity matter and appropriate action would be taken against the offender. It is as simple as that.
We find that Commander Orchard's evidence on that issue was either not full and frank, or else showed that he had lost touch with the life of seamen on HMAS Adelaide.
49. Mr Wicker said at first the teasing was joking but then it was made evident to Mr Achurch that he would not have much future in the Navy. He said the tone senior sailors used to Mr Achurch was stern and berating.
50. Mr Sharma also served with Mr Achurch in HMAS Adelaide as a Leading Seaman. He had earlier been an instructor at HMAS Cerberus. He said that Mr Achurch was there as a recruit at the same time, although he did not “meet him quite - on a personal note” (trans. p108). Mr Kelly established, by reference to a record of Mr Sharma’s postings (R11), that Mr Sharma was mistaken in that recollection. However, as Mr Sharma had simply said that he believed Mr Achurch as a recruit was “no different to a lot of other recruits of his age”, his evidence on that issue was not significant. Nor do we regard that error as indicating that all Mr Sharma’s evidence should be rejected. His evidence as to the time when he and Mr Achurch were both serving as crew of HMAS Adelaide was much more specific, and we accept it as a reliable account.
51. Mr Sharma said that at first Mr Achurch had a good attitude and had “no dramas”. He said about six months after joining the vessel, “he started to slip and then it just snowballed and it just got to a stage where everyone started to feel he was incompetent” (trans. p110). He said at that time Mr Achurch was different to the other sailors. He would forget small simple everyday things, like pinning his towel to a rack in case of flooding. He said, “they would start bullocking him and then everyone would just start riding him” (trans. p111). He explained that, “on a warship with a crew of 200, once you got the reputation of losing confidence, that sticks with you, and it is very hard to leave it” (trans. p111).
52. Mr Sharma added that Mr Achurch sometimes needed help, for example with splicing. He said (trans. 111-112):
The Navy is hard and fast. If you don't learn fast, then they basically ride you. And what do you mean by that? --- They would keep riding you as in keep giving you all the dirty tasks. Showing no confidence. Yelling at you for the most smallest things. Taking out their own personal frustrations basically. And it becomes ostracising then. It is hard to understand unless you have actually served on a ship. To be ostracised on a crew of 200 - everyone is just like sheep and they will all follow the other.
53. Mr Sharma, at the request of the Tribunal, gave examples of the names Mr Achurch was called which included “f… idiot” (trans. p112). He said it became, in a sense, “accepted” at Leading Hand and Petty Officer level to make derogatory remarks about Mr Achurch, and that happened every day. He said Mr Achurch was aware that everybody thought he was an idiot.
54. Commander Orchard set out in his statement (R3) not only the substance of his reports but also some comments he had found in his personal records. So far as relevant they included the following comments:
18 May 1996 retention problem
Needs to mature but . . . is still very young.30 July 1996
slow learner with a huge enthusiasm to do well 4 November 1996
has slowly improved his gunnery skills
finds it difficult to retain what he is taught.
a nervous sailor, which results in a number of silly mistakes.
55. In the evaluation report for January 1997 (R8), Commander Orchard, after referring to the slow learning, nervousness and silly mistakes, wrote:
He must slow down and think before taking action.
Disappointingly, Achurch has not met my expectations over this reporting period despite being awarded his Helmsman’s Certificate and being promoted to Able Seaman. I consider that Achurch has the potential to do well and, in time as he gains experience and matures, will make an above average Able Seaman.
56. The July 1997 report (R8) was prepared by Commander Orchard, but signed by another officer. It referred to much improvement in gunnery skills and general seamanship awareness and described Mr Achurch as “a good learner”, and “an extremely competent ABBM that has gained much respect from his peers and supervisors alike”. It added:
During FCP 97-1, when Adelaide was judged to have the most competent and knowledgeable GDP team afloat by STG, AB Achurch’s overall knowledge of the threat and gunnery safety drew special comment from the AFGO.
In sum, AB Achurch has matured into a very good Boatswains Mate. If he continues to develop in this manner he will become an exceptional Able Seaman with much potential for Leading Hand.
57. While the earlier reports corresponded to the evidence given on behalf of the applicant, the July 1997 report created quite a different picture. The January 1998 report contained a mix of favourable and negative comments. It stated that Mr Achurch had shown “solid improvement in his gunnery skills to the point where they could now be considered above average”. However the report also again mentioned the sort of problems of which we had heard previously. Mr Achurch’s seamanship knowledge was stated to need improvement, and there was mention of him allowing himself to be distracted and taking longer than expected to complete simple tasks. The report stated that Mr Achurch had the intelligence and initiative to carry out any task that could be asked of him, but that he sometimes required the supervision of a senior to ensure a task was completed adequately. For reasons which were not stated, nor apparent to us, the Divisional Officer who completed that report said that he had little doubt that Mr Achurch had “the ability to develop into an exceptional sailor”. The evidence establishes how wrong that forecast proved to be.
58. In evidence, Commander Orchard explained that the substance of the performance reports was put together by the senior sailors. He also said that the scores were compiled by the Petty Officers and the Leading Seamen for whom the Able Seamen worked.
59. Commander Orchard said that the fact that, in early 1988, Mr Achurch was landed to HMAS Stirling to await posting to a Patrol Boat Gunnery course shows that he had been improving. He said that, at that time, you had to be recommended as showing the potential to operate in a small community, to be posted to a patrol boat. He said it required commonsense and above average gunnery and seamanship skills. Commander Orchard added (trans. p185):
I knew that I was going off to be the Captain of a patrol boat and I wouldn’t have written something about a sailor being recommended for a patrol boat if I knew the chances were he was going to be posted to a patrol boat that I was on and then not perform.
60. However, as Commander Orchard had left HMAS Adelaide on 2 June 1997, the recommendation that Mr Achurch be posted to a Patrol Boat Gunnery course must have been made by others, on the evaluation of performance after Commander Orchard was posted off HMAS Adelaide. Commander Orchard said that it was his opinion that Mr Achurch became more relaxed with him as time went on. He said he saw no decline whatsoever in Mr Achurch’s performance of his duties. He explained the apparent decline in the January 1997 report as reflecting the increased responsibilities after Mr Achurch was promoted to Able Seaman.
61. In his statement of evidence Commander Orchard stated that while he was Divisional Officer on HMAS Adelaide he had thought Mr Achurch was making progress and improving. He also said that none of his junior officers or any member of the ship had reported to him that they had serious concerns about Mr Achurch. In evidence, Commander Orchard said he had no recollection of Chief Wicker raising concern with him about Mr Achurch. Mr Wicker had said that he did approach Commander Orchard on the matter. He said (trans. p92):
I spoke with all of his supervisors, and the senior supervisors, they were of the same impression that he was having - having trouble and we had tried several avenues of increasing his knowledge; to no avail. So I then approached the Divisional Staff, Attack Commander Orchard, and suggested that we do something about it because we - we didn't consider that his level of - level of skill and knowledge warranted him being there. What I mean by that is that he just couldn't perform the tasks there – that the - were the required standards.
Now, when you say you discussed it with Philip Orchard? --- Yeah.
Can you remember when that was? --- I believe that was in early '97. Either late '96 or late - early '97 before we went off to Exercise Tandem Thrust.
Now do you remember what you said to Commander Orchard? --- It was just an informal meeting in his cabin that I suggested we get somebody or have a psychiatrist or somebody of that nature have a - a look at him to see if he can ascertain his ability to absorb information.
62. Although Petty Officer Smart did not claim in his statement that he had raised concerns about Mr Achurch’s performance with Commander Orchard, he said that he had voiced concerns about Mr Achurch’s immaturity and poor performance to Chief Hogan and Chief Morris. It puzzled us that Commander Orchard did not seem to have been aware of the concerns of Chief Wicker and Petty Officer Smart about Mr Achurch’s performance of his duties.
63. Commander Orchard did acknowledge that he did not really know first hand how Mr Achurch performed his duties. He said he relied on the senior sailors to give him the necessary information. He did not know about Mr Achurch’s reliance on his electronic organiser or about him being teased by being asked, “Do you want french fries with that?” He did not know that Mr Achurch had, as we were told, sometimes fallen asleep at his duties or been reported to have been staring vacantly into space. Nor was Commander Orchard aware of the fact that there were a number of occasions when Mr Achurch could have been formally disciplined, but the Chief Coxswain chose not to take that action. There is evidence to that effect from both applicant’s and respondent’s witnesses. We find that Commander Orchard was not fully aware of the treatment Mr Achurch received at the hands of the Petty Officers and senior sailors.
64. Petty Officer Smart denied that he yelled at Mr Achurch and also denied that others did so or teased him more than usual. He said “it was just absolutely no point in yelling at Stewart. No point yelling at anyone really but . . .”. At that point Mr Kelly cut off Petty Officer Smart’s answer. We find that the knowledge, that there was “just absolutely no point in yelling at” Mr Achurch, was knowledge based on experience of seeing Mr Achurch being "yelled at". In cross-examination, Petty Officer Smart acknowledged that you have to yell at some stages.
65. Petty Officer Smart explained (trans. p207-208):
I can understand people calling someone an idiot or something like that if they have been trying for so long to get something through and it is not just getting there. So, people get frustrated. And I am not condoning it. But there is not always going to be warranted for me to jump in. If I thought it was getting out of hand or if I thought it was getting over the top, then, yes, I would have jumped in. But there would be times I would see people get called it. I mean, I have been called it before when I have made mistakes when I was a young bloke in the Navy. And what about names like cluster, skull's arse and skull? --- I got called that at school. I mean, I don't know what the big problem with being called a - you know, a skull or something like that is. It is - or a cluster.
A cluster just means that, you know, every time you touch something, it just goes to a cluster. It just goes - yes, just a - you call him a cluster or skull. They are just terms. I wouldn't have put anything in them. I have been called it a million times. Called it every day.
66. Petty Officer Smart said that Mr Achurch’s level of maturity was not up to being trained in weapons and trained to kill people ultimately. He said that was why he raised his concerns with the two Chief Petty Officers but he had “absolutely no idea” whether they followed the matter up.
67. Petty Officer Smart explained that Mr Achurch was passed over for mess privileges such as getting the better racks or bunks. He said Mr Achurch had asked him why, and was upset by being passed over for the better racks. He said he had explained to Mr Achurch (trans. p212):
Stewart, you know, he has earned it. You haven't. You have got to earn this rack. You have got to - it is just one of the things. If you can't make your rack every morning and if you can't be at work on time and you can't have your clothes clean or into the laundry bag on time, then you don't warrant moving into the better racks. You have got to earn that." And it is only little things like that that bring people back. But in a mess of 66 people, if you have got one . . . that is constantly not making his rack or leaving overalls lying on the deck or something like that, then it is a big issue. And that was just one of the things that Stewart did that dragged him back. But, having said that, he was getting more confident in that he was able to come and express those feelings.
68. Mr Wort was a Petty Officer supervising Mr Achurch, while he was serving on HMAS Adelaide. He said he was immature, appeared to be quite vague and “needed direct supervision 80-90% of the time” (para 5 of R6). He said “Stewart did not seem to be able to learn from his mistakes because he continued to make the same mistake time and time again” (statement para 12). He also stated (paras 20-21):
I do recall observing Stewart while on lookout duties. When a sailor is working lookout they are required to scan the horizon, ocean and sky in a 185-degree arc from the ship. Their duties are to detect any approaching aircraft, ship, submarine or any other threat to the ship. These duties like all duties on the ship are designed for a reason and for the safety of the ship. Stewart at times would be just staring at one stop on the horizon for a lengthy period of time, a number of minutes. I would yell at him and tell him to do his job.
I attempted to teach Stewart that as part of the ship he was required to gain the trust of other sailors and his supervisors. Everyone on ship is responsible for everyone else and their safety. If he was not doing his job properly, no matter how mundane, then how could he hope to gain the trust that was required. Steward did not seem to appreciate this.
Mr Wort said he swore at Mr Achurch, probably once every two days, and he noticed others doing so too, “probably once every two days”.
ISSUE (i)(b) FINDINGS AS TO TREATMENT DURING SERVICE
69. Petty Officer Smart said that Mr Hutchinson is a very intelligent person. He said that Mr Hutchinson was an Able Seaman at the same time as Mr Achurch, and he was on the same defence watch as him and was probably Mr Achurch’s best friend on the watch. Mr Hutchinson also impressed us as intelligent. We find that his evidence was accurate. Mr Hutchinson, Mr Laurie and Mr Davis were all Able Seamen with Mr Achurch. We find that Mr Hutchinson was the person closest to Mr Achurch of those who gave evidence, both in terms of friendship and in terms of rank and duties. He gave more detailed evidence than Mr Laurie and Mr Davis. We find that there was confirmation of much of Mr Hutchinson's evidence in various aspects of the evidence of other witnesses including Mr Wort and Petty Officer Smart, and in some of the Performance Evaluation Reports on Mr Achurch. We accept Mr Hutchinson’s evidence.
70. We do not find that any of the Naval personnel set out to humiliate or bully or harass Mr Achurch, but we do find that his immaturity, frequent mistakes and gazing into space (which is discussed further later in these reasons), did cause senior sailors and Petty Officers and other Able Seamen to become impatient and frustrated. We find that they reacted by criticising, teasing, and berating Mr Achurch in the Navy way, which, as Mr Sharma explained, is “hard and fast”.. We find that this was upsetting to Mr Achurch and made him lose confidence, and also affected other people’s perception of him. It may well have seemed to be no more than necessary and appropriate discipline to the Petty Officers and senior sailors involved at the time, but it was upsetting and demoralising to Mr Achurch.
71. We find that Mr Achurch was the youngest sailor serving on HMAS Adelaide, that he was immature and proved to be a slow learner both about complex matters of gunnery drill and about simple tasks of everyday seamanship such as keeping his rack tidy and being punctual and pinning his towel to the rail. We find that Mr Achurch was frequently yelled at, abused, called names and given extra duties by way of punishment, and that over time he lost confidence and lost his enthusiasm for the Navy. We find that Mr Achurch was regarded as “an idiot” and as incompetent. That was indicated by the tease about McDonald’s.
72. We do not understand how or why Mr Achurch was recommended for the Patrol Boat Gunnery course. But his performance on that course was described as “well below standard” on 26 March 1998 and he was removed from the course the following day (Additional T docs bundle 2 pp33-36). Those facts lead us to find that the recommendation was probably not appropriate when made.
73. We find that Mr Achurch did make more mistakes than most, if not all, other sailors on HMAS Adelaide at the time, and that he repeated his mistakes time and time again leading to more criticism, yelling and name calling. We find that this treatment was counterproductive. It made Mr Achurch more nervous, and he then made more mistakes. We find that Mr Achurch was subject to harsh and humiliating treatment during service by way of verbal abuse and teasing. We find there was one occasion of physical abuse when he was punched in the eye in Tasmania.
74. There is one aspect of the evidence as to Mr Achurch’s problems on service with which we have not so far dealt. That is his habit of withdrawal or, as it was sometimes described, of staring or gazing vacantly into space. We deal with it separately because it is not clear whether it was a characteristic of Mr Achurch or an early symptom of his schizophrenia, or whether it was a reaction to the constant beratings, criticism and teasing which Mr Achurch experienced.
75. Many witnesses referred to this matter. Mr Hutchinson saw it as a reaction to frequent and fierce beratings. He said (trans. pp27-28):
The beratings continued but as they did continue, Stewart would switch off. It just didn't seem that he was there. You would look into his eyes and they didn't seem to be focussed. There - he didn't seem to be concentrating or listening and many times I tried to explain things to Stewart for the preservation of our – our team and he just didn't seem to take the information in. And I - he got – it was like, thick skin. He - he got used to it and perhaps desensitised to it and he would just switch off and stare off into space.
However Mr Hutchinson did say, as set out in paragraph 26 of these reasons, that he noticed Mr Achurch’s habit of staring when being given instruction “quite early” in his time on HMAS Adelaide.
76. Mr Wicker described Mr Achurch’s reaction to berating as being as if he had “just had enough . . . it was like he just turned off . . . A bit like a whipped puppy” (trans. p91). He also said that every time he saw Mr Achurch, when he was on defence watch on the gun direction platform, his crew would “basically take the rinse out of him from the moment he stepped up there until the moment he stepped off 3-4 hours later. Mr Wicker said that when he went up there and had a look at Mr Achurch (trans. p91):
. . . he would be just staring off into nothing and they would end up having to throw something at him to gain his attention.
77. Mr Wicker also said he and others noticed Mr Achurch staring looking up at one wall in the paint shop. He said that was pointed out to him by a few people and he himself observed that Mr Achurch was “totally bank” . . . “didn’t seem to have any expressions” (trans. p95).
78. Mrs Plastow said that she first noticed that her son was staring into space and looking at her without focussing, and was unusually withdrawn, when he was at home on leave in December 1996. She said she thought he was troubled and she tried to find out why, but he would not open out to her (trans. p133). She said he was again preoccupied and withdrawn in September 1997. At that time, when she drove him back to the Naval Base after five days leave, he was reluctant to go back and did not want to get out of the car. He told her that he hated going to sea, but then got out of the car and went back to the Base.
79. Mr Sharma said that Mr Achurch took the yelling to heart. He said when derogatory remarks were made to him (trans. p113):
he respected authority so he wasn't the type that would back mouth anyone and he would just withdraw into himself.
He said Mr Achurch was aware everybody thought him an idiot. When asked what effect that had he replied (trans. p114):
I believe personally in his last 6 months he started withdrawing more to himself where as I used to be able to help him, like, saying: what's up Stewart. You know, he used to respond and in the end he would just say: Oh, nothing, and you could tell when someone's down when you're living in a close environment as such.
80. Mr Wort also described Mr Achurch as sometimes staring into space. He said he referred to it, to Mr Achurch as, “f…ing with the fairies” and that made him, “jump to reality” and get his mind on the job. He said Mr Achurch had a look of bewilderment. “as in why are you saying that to me”. Petty Officer Smart also said he had seen Mr Achurch gazing vacantly on the gun direction platform. He said, “he’d just be lost and [I would] go behind him, say come on Stewart, and he’d just snap out of it” (trans. p217). Petty Officer Smart did add that he himself had done it as well, because your mind starts wandering, “when you're sitting up there for seven hours straight”.
81. We find that from quite early during his Naval service Mr Achurch was observed to have a habit of staring vacantly and seeming as though his mind was not there. We reject Petty Officer Smart’s suggestion that Mr Achurch’s habit was what any sailor would do during a watch. We find that Mr Achurch’s habit of staring vacantly and looking as though his mind was quite blank, was not the same as how another sailor might let his mind wander during a watch. We find that one situation in which Mr Achurch seemed to go vacant, was when he was being berated or teased or criticised but that was not the only time when it happened.
ISSUE (ii) WHETHER EMPLOYMENT CONTRIBUTED TO AN AGGRAVATION OF THE AILMENT
82. The issue we must decide is whether Mr Achurch’s employment contributed to a material degree to an aggravation of his schizophrenia. Aggravation may be by an acceleration of the course of an ailment, or by making the symptoms or prognosis of an ailment worse. Aggravation may result from a failure to diagnose and treat a disease if that results in a worsening or aggravation of the condition, when compared with the course which given timely treatment it would have taken. (See Johnston v The Commonwealth (1982) 150 CLR 331). Increased pain or other symptoms may constitute an aggravation, even though no pathological changes take place. (See Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626).. It is a difficult question whether in the case of schizophrenia, which is a psychotic ailment, an increase in stress, humiliation, and psychological trauma results in an aggravation of the ailment. An aggravation may make an ailment worse by making it more severe, or more resistant to treatment, or by making it more persistent in terms of not having the sort of remission that would in many cases be expected after a first episode of schizophrenia. In order to be compensable under s 14 of the Act, an aggravation must result in incapacity or impairment.
83. In Federal Broom Co, the High Court was considering a different legislative provision where the relevant words describing what is now referred to as an aggravation of an ailment or disease were “aggravation, acceleration, exacerbation or deterioration of any disease”. Windeyer J said at pp639- 640:
The next question then is, was there in December 1960 “an aggravation, acceleration, exacerbation or deterioration” of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word “acceleration” probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached‑‑its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. . . But in the present case the words “aggravation” or “exacerbation” are more apt than “acceleration” to describe the matters on which the case for the applicant depends.
84. Although the definition of “aggravation” in the Act only expressly includes “acceleration”, we do not doubt that an exacerbation of a disease is an aggravation of an ailment. Thus the comments of Windeyer J are helpful in considering the concept of aggravation of an ailment.
85. Turning to the second issue, namely, whether the treatment to which Mr Achurch was subjected, contributed to a material degree to an aggravation of his schizophrenia, we must say, at the outset, that the medical evidence before the Tribunal was unsatisfactory. There was no evidence from a treating psychiatrist. Dr McCarthy who saw Mr Achurch on 13 or 14 May 1998, and diagnosed him as psychotic, and arranged for his admission to Joondalup hospital, was not called.
86. The only evidence we had as to that important consultation was Dr McCathy’s record, which reads as follows:
This 19 year old sailor is almost certainly psychotic. He presented on the third attempt under police guard. He does not know why he was sent to see me and can’t or won’t relate any substantial history. He denies statements he makes a few seconds after making them.
He presented in blue Navy overalls, a tall fit looking young man with acne on his face and chest. He appeared pre-occupied (perhaps with auditory hallucinations which he denied) perplexed, disinterested in the interview, with an inappropriate affect. His speech was sparse, there were no abnormal movement [sic]. Most questions were answered in the negative or ignored. He had difficulty following the conversation. He’s admitted to no psychotic symptoms. Cognition is uncertain. Insight is poor.
The picture suggests a schizophrenic illness although other causes of psychosis require consideration. After discussion with the base SMO I have referred this sailor to Joondalup hospital for involuntary treatment. (T12 p25 and T15 p38 typewritten)
87. The Joondalup Discharge Summary (A13) indicates that Mr Achurch was under the care of Consultant Psychiatrist, Dr Ayonrinde, from 14 May 1998 (incorrect date given on A13) until 7 July 1998, and was discharged into the care of Dr Claessen with arrangements for review by Psychiatry Registrar Dr Terry. We did not hear from any of those doctors.
88. There is a letter in the T documents (T36 p94) from Dr Ayonrinde to Military Compensation and Rehabilitation Service saying that when Mr Achurch was an inpatient all efforts were focussed on treating his illness, “We were not particularly concerned with details of his life in the Navy”.. Dr Ayonrinde offered to see Mr Achurch again with a view to answering the questions asked of him but it appears that offer was not taken up. Nor did the Tribunal hear from a current treating psychiatrist.
89. Dr Terry, in a questionnaire (T31 p82) stated that he thought it possible that stress during service may have had a temporary aggravating effect until Mr Achurch left the Navy. He wrote a second report (A12) on 9 February 2002 which was more helpful to Mr Achurch and said that the bullying and stress during service in the Navy would have exacerbated the disease, and their effects may have lasted well beyond Mr Achurch’s time in the Navy and could have long term consequences. Another questionnaire at T31 pp83-84 is completed in a different handwriting. It contains the opinions that employment was “Definitely not” the principal cause of Mr Achurch’s condition, but that he would “Probably not” have contracted the disease, if it had not been for his employment. Somewhat puzzlingly in the light of that answer the employment contribution is stated to be "0-9%".. Not only was it not clear whose opinions those were, but they were not explained by hearing from the doctor. Dr Allet, who appears to also be a treating doctor, wrote a report (T40 p102) pointing out that the Navy employment appeared to be the precipitant of the first episode of psychosis. The factors relating to employment which she identified were long hours and shift work. It does not appear from her report that she had any history of bullying, harsh and humiliating treatment by way of verbal abuse and teasing. We regret the lack of any evidence from those doctors explaining their opinions and the basis on which they were formed. The Tribunal usually finds evidence of treating doctors to be very helpful (see Re Leone and Director-General of Social Security (1982) 4 ALN N104). However we must decide the matter on the evidence before us.
90. The medical evidence for the applicant was given by Dr Burvill, a Perth psychiatrist and former Professor of Psychiatry, who had seen Mr Achurch and his mother twice in July 2001 for the purposes of this hearing. He said that he deferred on issues relevant to our decision to Professor McGorry, who was agreed to be a leading expert in relation to the research, treatment and diagnosis of schizophrenia, But Professor McGorry had not seen Mr Achurch or interviewed any of his family, so his opinions could only be based on the written material that had been provided to him. He had read statements of Messrs Hutchinson, Wicker and Sharma, and reports of Dr Burvill and Dr Terace.
91. The difficulties were exacerbated by the fact, set out above, that important documents were not produced by the respondent until the last day of the hearing, after the three psychiatrists had given evidence, with the result that they could not give their opinions on that material.
92. Key issues which emerged during the hearing were as to when Mr Achurch suffered the onset of psychosis, whether his behaviour changed during the course of his service before early 1998, what exactly precipitated the referral to Dr McCarthy, and whether Mr Achurch was in the prodromal phase of schizophrenia during his service of HMAS Adelaide. As we said at the hearing, the resolution of such issues was not assisted by the absence of a clear history of Mr Achurch’s functioning before, and during his service, nor by a lack of any evidence at the hearing from people who could speak of Mr Achurch’s service during the period after he left HMAS Adelaide on 23 February 1998 until his referral to Lieutenant Ferguson on 24 April 1998 (T7 pp17-18 and T9 pp21-23) and to Dr McCarthy on 13 or 14 May 1998 (T12 p38).
93. The evidence was that it was Chief Petty Officer Kemp who first recognised that Mr Achurch’s behaviour seemed abnormal. He “kept a diary of the sailors’ shortcomings (mostly lack of memory) since joining FIMA” (T7 p17). That diary was produced in response to the Tribunal’s request (Additional T docs Bundle 2 pp40-47) but without evidence from its author, and without medical evidence as to the significance of its contents, it could not help us in our task. Chief Petty Officer Kemp seems to have treated the matter as sufficiently serious to require that Mr Achurch attend for psychological assessment. We were disappointed that there was no evidence from Chief Petty Officer Kemp, or from Petty Officer Spong as to the Patrol Boat Gunnery course from which Mr Achurch was removed in March 1998 on the ground that he was a danger to himself and others. We only saw his report when we received additional T documents at the end of the hearing (Bundle 2 pp33-55).
94. It was not easy to determine the effect overall of the medical evidence before the Tribunal. That is to a significant extent because so much is unknown about what causes or contributes to schizophrenia or to an aggravation of that condition, or even, as to the reasons why the course of the disease varies so much from one person to another. The reports of Professor McGorry and Dr Burvill contained strong statements in support of Mr Achurch’s case. But their evidence at the hearing so qualified those statements that when all the evidence was considered, no persuasive basis had been given for the conclusions expressed. Dr Terace’s evidence that Mr Achurch probably, or even inevitably, would have developed schizophrenia anyway, and that there is little that can be done to prevent the onset of the disease, was not really contradicted. He gave evidence that the treatment which Mr Achurch received in the Navy was not likely to have affected the course of the disease other than perhaps temporarily. Both Dr Burvill and Professor McGorry expressed the view that the treatment probably had an aggravating effect on the disease, but they were unable to amplify or explain that opinion so as to give the Tribunal an understanding of the nature of that aggravation.
95. There was agreement between the medical witnesses that schizophrenia is not caused by factors such as “bullying, harsh and humiliating treatment”.. Professor McGorry said that he would be very surprised if service in the Navy “in itself could cause the illness as a single cause” (trans. p160). He said it was his opinion that aspects of service aggravated Mr Achurch’s condition.
96. Professor McGorry in his report of 22 October 2002 (A9) expressed his opinions on the basis of a history that prior to joining the Navy, Mr Achurch had a “completely normal childhood and adolescence development”. He added, “In particular there was no evidence of delayed milestones, impaired premorbid personality or poor functioning in childhood or adolescence”.. Professor McGorry wrote (pp2-3):
The significant behavioural and cognitive change in this young man, which occurred in the early months of his naval service, should have been obvious to all around him as a sign of something seriously wrong with him. It certainly should have led to prompt medical assessment and psychiatric review. The abuse that he suffered during this highly vulnerable state in my opinion has contributed to a worsening of his condition and increasing morbidity and comorbidity. While stress and trauma on their own are unable to cause schizophrenia they are strongly suspected to be risk factors for both onset, exacerbation and worsening of the condition. There is ample evidence in the research literature to support this contention.
97. Professor McGorry was asked to explain the effect that bullying or abuse or harsh treatment might have had on the course of Mr Achurch’s illness. He explained (trans. pp150-151):
And, in the reports that I read, during this untreated period of Stewart's illness, several of the reports referred to abusive treatment at the hands of his superiors and - and fellow seamen. And if that - if that is substantiated, I would say that could have contributed to - to his difficulty in recovering from the illness. You – you have to remember that this young man was on his own in an isolated environment away from his family at a fairly young age, as you pointed out, so being subjected to that kind of treatment, if indeed he was, would have been extremely distressing traumatic. Especially in a state of being psychologically compromised, as he was at the time.
Being isolated from his family, is that at all relevant in this situation? --- I think in the sense of lacking the normal sorts of support in such a situation, it is relevant in that sense. [emphasis added]
In that passage, Professor McGorry seemed to put the aggravation as a result of harsh treatment as no more than a possibility. Similarly he did not explain the effect of isolation from the family.
98. Professor McGorry's report and evidence focussed mainly on the issue of an alleged failure to treat aggravating schizophrenia. The Tribunal asked Professor McGorry about the possibility of a contribution to an aggravation of the schizophrenia, as a result of treatment in the Navy. He replied (trans. p164):
Well I think - . . . as I said, I have done research . . . on the impact of a trauma on - on the course of schizophrenia and I think those sorts of experiences are traumatic and - and affect the mental health of anybody, whether the bullying and humiliation occurs in the mentally healthy person. But the evidence and my clinical opinion is that if someone is already psychologically compromised as a result of a serious mental illness then the effects are even more severe. And, you know, it just - it is tragic, you know, if that - if that account that you read out is true, it is absolutely tragic what Stewart went through and I think my professional opinion is that it really did affect the course of his illness. (emphasis added)
That opinion was expressed somewhat tentatively, but further, it requires us to decide whether Mr Achurch was, “already psychologically compromised as a result of serious mental illness”.
99. Professor McGorry (trans. p166) in response to a question from the medically qualified Member of the Tribunal, agreed that there could have been some aggravation by the conditions of service. But we are conscious that it was more a matter of Professor McGorry agreeing with a suggestion made to him, than an opinion advanced by Professor McGorry. He is an acknowledged expert on schizophrenia. He did not himself give much emphasis to the harsh conditions of Naval service, or the abuse and criticism Mr Achurch faced, as factors aggravating the severity of the schizophrenia. He focussed far more on the alleged failure to treat.
152. The Joondalup Health Campus Integrated Progress Notes for 13 May 1998 (R10 pp2-5) provide a helpful description of the onset of the schizophrenia. We find that record, and the notes of Dr McCarthy (T12 p25 and T15 p38), to be the best evidence available to us on that issue. We do not consider the discrepancies in dates to be significant. Dr McCarthy’s note is set out in paragraph 86 of these reasons. The Joondalup Progress Note was not produced until the last day of the hearing. It states:
13/5/98 P/C. Transferred from Stirling naval base via Dr McCarthy consultant psychiatrist with possible psychotic illness
HPC [from Andy Robertson naval Med offices]
Over past 3/12 Stuart has been noted to be increasingly forget with decrease in functioning at work.
He has recently started work as a fitter/turner apprentice and on 7-8 occasions has just wandered off. On these occasions he has left the base it is not known where he goes. He has appeared increasingly vague and distracted with very poor concentration.
Approx 6-8 weeks ago he told his commanding officer that he had taken drugs on/off since age 13 inc LSD and cannabis. He is not known to have taken drugs in recent months.
On review by the Navy drug counsellor Stuart was found to be vague/distractable and unable to concentrate or complete simple tasks.
In the past 5-6 weeks 4-5 appointments have been made with doctors and psychiatrist but Stuart has DNA’d and on one occasion when driven to the appointment got out of the car at the lights.
Today 13/5 Dr McCarthy found to be preoccupied/vague & probably psychotic due to risk of absconding sent to JMHU.
. . .
Clean shaven young man dressed in Navy boil suit.
Behaviour – sitting still appears distracted and preoccupied. Continually looking around while being interviewed but otherwise just staring directly ahead/at times smiling fatuously speech v. hesitant long delays in answering questions eventually with vague answers e.g.
Why are you here – “beats me” – laughing fatuously.
When asked about mood replied “up and down”’
“its going to get f…g better” – unable to elaborate.
Denies/unable? auditory hallucinations
Denies other + ve psychotic Sx [symptoms]
unable to explain why he appears so preoccupied.
Cognition
Orientated in time person & place although long delays in replies unable to answer any other part of MMSE
eg serial Nos – “its impossible” laughed – very poor concentration/attention – appears distracted
Collateral from Morag Ferguson drug counsellor:
Stuart has performed at a low level since being in the navy. He has passed exams but only just and often resits. In this past 2/12 he has deteriorated – with very poor concentration. eg on a recent weapons course he could not understand or act on basic instructions and did not understand safety implications, he was discharged from the course.
He is not known to have close friends and while he has told people of drug and alcohol use there is no evidence of this.
Summary
19 [year old male] with marked deterioration in social – occupational functioning over some months with possible history of drug use. He presents today as thought disordered with marked preoccupations and very poor attention. (emphasis added)
We comment on this note that we did not hear evidence from the Commanding Officer to whom Mr Achurch was said to have reported that he had taken drugs on/off since age 13.
153. The Joondalup Progress Notes (R10 p6) refer to information received from Mrs Plastow. She is reported as having stated that Mr Achurch had told her he had used LSD/cannabis. She seems to have said that Mr Achurch had been “unwell since Christmas after coming off the HMAS Adelaide”. Mrs Plastow appears to have reported that she had noticed a change in personality over the last six months, but said Mr Achurch had been much worse for the last two weeks. The mention of a change in behaviour since Christmas 1987 was consistent with Mrs Plastow’s evidence to the Tribunal, but apparently she did not consider it appropriate to raise that change with the Naval authorities. It would seem that it was only the deterioration over the previous few weeks which made both his mother and the Naval authorities aware of the seriousness of Mr Achurch’s condition.
154. One possible explanation of the first clearly psychotic episode is given at (R10 p8). Mr Achurch was detained under the Mental Health Act 1996. The psychiatrist, Dr Ayonrinde, who examined him and made the order that he be detained as an involuntary patient set out the basis on which the order was made as follows:
Admitted yesterday in highly excitable and bewildered state. He admitted to having taken large dose of “speed” before losing it and acting in a disorganised and dangerous (to himself) way yesterday.
155. Mr Wicker was the only witness who said he had considered a medical referral to be appropriate, while Mr Achurch was on HMAS Adelaide. He said he had raised the matter with the PO Med (trans. p95) and with Commander Orchard. But he did not suggest that he thought the problems were sufficiently serious to put a case for a professional assessment, once the PO Medic said he did not think Mr Achurch was on drugs. Nor did he say that he pursued the matter with Commander Orchard, after nothing was done in response to his raising the problem.
156. In considering whether Mr Achurch should have been referred for medical assessment at that time, we considered it significant that Mr Wicker said that the only time he queried an evaluation score for Mr Achurch was during his training before promotion to Able Seaman. That promotion seems to have been on 29 September 1996 (R7). Mr Wicker said that at a meeting with Commander Orchard and all the Petty Officers the evaluations of the whole division were reviewed. He thought some of Mr Achurch’s scores, “were too low for him at that time . . . and we actually bumped them up” (trans. p101). That comment did indicate that Mr Achurch must have been functioning at a reasonable level at that stage. Some of the later evaluations contained in R9 were quite positive, as discussed in paragraphs 56 to 57 and 125 of these reasons. Mr Wicker did not say that he queried those evaluations. Thus Mr Wicker’s evidence did not create a picture of any sudden deterioration in function while Mr Achurch was still posted to HMAS Adelaide. The sudden deterioration seems to have come when he was posted to HMAS Cerberus for the Patrol Boat Gunnery course.
157. Mr Wicker said he had raised the matter of a medical assessment of Mr Achurch before HMAS Adelaide went off on Operation Tandem Thrust (trans. p92), which took 16 weeks. From the chronology that would appear to have been from 28 January 1997 to 14 May 1997. If Mr Achurch had been medically assessed while on HMAS Adelaide, there is a possibility that such an assessment may have led to some treatment or support or to removal from HMAS Adelaide at that stage, but there is no medical evidence as to what treatment would have been appropriate at the early prodromal stage of the as yet undeveloped and diagnosed schizophrenia. Further there is no persuasive evidence that if Mr Achurch had been medically examined earlier, the course of the disease would probably have been different.
158. Dr Burvill, at trans. p232, explained that Mr Achurch’s symptoms were predominantly negative symptoms, and that they are less easy to treat than positive symptoms like delusions or hallucinations. That could well be one explanation for Mr Achurch’s failure to improve with treatment.
159. Dr Burvill said that it was his opinion that Mr Achurch was suffering from schizophrenia form psychosis or early schizophrenia prior to 13 (or 14) May 1998, when he saw Dr McCarthy, the psychiatrist, who wrote (Tdocs pp25 and 38):
The picture suggests a schizophrenic illness although other causes of psychosis require consideration.
160. Dr Burvill explained in his evidence why he thought that Mr Achurch was already psychotic during his service prior to April/May 1998, when his condition first came to the attention of the Naval authorities. Dr Burvill said that symptoms of being distracted, poor concentration, just staring at the horizon when supposed to be on watch, withdrawal, taking punishment “like water off a duck’s back”, can be part of a prodromal phase, but he said it brings to mind a lack of vision, lack of drive, lack of energy and passivity of movement which are “marked negative symptoms of schizophrenia” (trans. p247). He said that smiling inappropriately is “one of the many symptoms of schizophrenia” (trans. p251).
161. Dr Burvill added (trans. p248-249):
One would have expected it if he had been seen - if he had been seen by their psychological counsellors, if they were any good at all, they would have picked up that this chap was more than just adolescent behaviour and more than just a reaction to the Naval - strict Naval discipline, that there was something going wrong. And if they were any good, then they should have called in a psychiatrist and picked it up from there. And that's a stage where I think that you would at least talk about hospitalisation and - and, well hopefully early treatment.
And what do you think is the probability of the result of early treatment? --- Well the whole emphasis on the early treatment of schizophrenia which Professor McGorry would probably - no, not probably - he is Australia's expert in that area - is that as soon as you get them like that, the sooner you treat - as soon as possible, it stops - a deterioration occurs. It stops the development of the symptoms becoming worse than they are. You try and nip it in the bud I suppose, is a very simple way of putting it. That's - that's the hope in these sort of directions. That - that's what all the early - the whole theory of early treatment of schizophrenia's based upon that.
162. However, Dr Burvill did not explain what the treatment would be. He, did not say that the symptoms he described as “more than just adolescent behaviour”, would have led him to prescribe anti-psychotics. Nor did he say what other treatment he would have used to “nip it in the bud”. Further, he like Professor McGorry, had accepted the history given by Mrs Plastow, that prior to joining the Navy, Mr Achurch had “good normal personality functioning of a person of his age. There was no evidence of any mental illness or other abnormalities”.
163. As we explained, in paragraphs 112 and 134 of these reasons, Mr Kelly in cross-examination of both the applicant’s medical witnesses put to them material which conflicted with that picture. As well as the matters set out earlier, he also put to Dr Burvill that in an interview by a psychologist in April 1998, Mr Achurch had given a history of having used various substances including cannabis, LSD, and speed from about the age of 13. There is confirmation of some aspects of that history in a hospital admission record of 19 December 1992 (R10 p1), when Mr Achurch was admitted to hospital aged 13, and diagnosed as suffering from alcohol intoxication, and in the evidence of Mr Laurie (R1) and Mr Davis (R5). There is also support for Mr Achurch having used drugs, to some extent, prior to his hospital admission in R10 pp2-5, 6 and 8. Dr Burvill did not really respond to the suggestion that Mr Achurch’s use of drugs prior to May 1998 may have played a role in the severity of his disease.
164. Dr Burvill explained that what you hope for with optimal early intervention is that you stop the illness deteriorating fairly rapidly. He said you hope to stop the deterioration of symptomatology. He explained that Mr Achurch had about eight hospital admissions for 3-4 months over three years. He said that was not the normal pattern of relapsing schizophrenia but indicated “quite marked early severity of symptomatology”. But, Dr Burvill did not say what he would have done by way of “optimal early intervention” if Mr Achurch had been referred to him during the prodromal phase of the disease. He deferred to Professor McGorry on that issue. We have already explained that Professor McGorry’s evidence was inconclusive as to the benefits of treatment prior to the first clear episode of psychosis.
165. Dr Terace had provided a report dated 14 June 2001 (R4), written after seeing Mr Achurch with his mother. He wrote that it was very clear from the interview that Mr Achurch had an attention deficit and significant short term memory disturbances consistent with the diagnosis of chronic schizophrenia. In his Conclusion, at p15, he described Mr Achurch as having classic residual symptoms of schizophrenia including “apathy, amotivation, avolition, affective disturbance (mood disorder) and attentional dysfunction and cognitive impairment”.
166. As stated earlier, Dr Terace also concluded (at R4 p15), that Mr Achurch, “did experience a prodrome of schizophrenia, or the onset of insidious symptoms and behavioural changes during his Naval Service”.
167. Dr Terace had written in his report (R4), that it is an accepted psychiatric principle that the early treatment of schizophrenia is essential in optimising long term prognosis. He explained that the principle looks at the general outcome of the population overall and may not apply to any one specific individual. But, he explained that the hope is “thwarted by two problems”. First, anti-psychotics can not be introduced until a person becomes “frankly psychotic”. We have already explained that Professor McGorry accepted that proposition. Secondly, Dr Terace said there is a lack of scientific evidence to support the widely held belief that the introduction of early treatment does ultimately improve the outcome. He relied for that opinion on an article cited by Professor McGorry, Early Intervention in schizophrenia and related disorders: advantages and pitfalls, by Malla and Norman” published in Current Opinion in Psychiatry 2002 16-17-23 (A15).
168. Dr Terace concluded that it was possible that the earlier introduction of medication would have improved the outcome in Mr Achurch’s case, but there was not sufficient evidence to establish that on the balance of probabilities. He acknowledged that the article by Malla and Norman (A15), referred to by Professor McGorry recognised what it described as a “purported relationship” between early intervention and better outcome, but he pointed out that the authors wrote that the correlation did not establish causality.
169. On our reading of it, the Malla and Norman article does suggest that the onset of schizophrenia has been prevented in some cases by intervention during the prodromal period, but it also states that interventions target, “many false positive cases and, depending on the nature of the treatment, risk doing harm”. That is consistent with Professor McGorry’s evidence. The article refers to studies of the effects of earlier intervention after the onset of psychosis, including a study by Professor McGorry. It concludes:
Individuals who present with mental states bordering on psychosis with or without high genetic risk may be the greatest beneficiaries of early intervention. There need to be convincing demonstrations of such interventions providing benefit with acceptable and limited risk of harm. Despite encouraging initial results with relatively stringent risk criteria, clinicians will need to wait for more definitive evidence before prescribing antipsychotic treatment to individuals who may appear to be in a loosely defined ‘prodromal period’ of a first episode. In the meantime, however, clinicians and health care funding agencies should concentrate on reducing delays in treatment of clear psychosis when it does occur and providing comprehensive medical and psychosocial treatment to those so afflicted without delay.
170. That conclusion is consistent with the evidence of Professor McGorry, but, as we have already explained, there is no evidence of “clear psychosis”, until at earliest approximately February or March 1988, and Professor McGorry said that a delay of approximately three months before diagnosis and treatment is reasonable.
171. Dr Terace referred to two factors which may be relevant to this matter, and which he said may have a stronger relationship to relapse, than the time of commencement of treatment. He referred, first, to non-compliance with medication, which Dr Burvill said was very common in patients with schizophrenia who, like Mr Achurch, do not believe they are ill, and therefore do not believe they require medication. Secondly, he referred to the issue of substance abuse. He pointed out that although Mrs Plastow and Mr Achurch did not identify it as particularly relevant, there was other information in the medical reports. He referred to the mention of early substance abuse and said there is a strong notion that the introduction of amphetamines in the early prodromal phase of schizophrenia can worsen the prognosis. We accept his evidence that both those factors, as well as the fact that Mr Achurch has always had more negative than positive symptoms, may play a part in explaining his poor response to treatment.
CONCLUSION
172. We have found that Mr Achurch was subject to name-calling, verbal abuse and harsh treatment during his service in the Navy, while on HMAS Adelaide and we have found that the treatment to which he was subject contributed to an aggravation of his schizophrenia, by intensifying the early symptom of withdrawal. However that aggravation did not result in incapacity or permanent impairment at that stage. Mr Achurch continued to perform his full Naval duties to the best of his ability and was not removed from his posting. That aggravation of the symptom of withdrawal while serving on HMAS Adelaide is an injury as defined in paragraph (c) of the definition of “injury” in the Act. But it does not itself lead to any entitlement to compensation under s 14 of the Act unless it results in “death, incapacity for work or impairment”.
173. The evidence did not persuade us that the aggravation injury suffered on HMAS Adelaide, consisting of the intensifying of the early symptom of withdrawal did continue after Mr Achurch was diagnosed as suffering psychosis so as to make the schizophrenia itself more severe, or more prolonged or more resistant to treatment than it would otherwise have been. The uncertainty about the causation of schizophrenia and the fact that many different factors may contribute to its severity and chronicity mean that we cannot find that the reaction of Mr Achurch to the constant berating and verbal abuse during service probably continued to affect the severity of the disease after it moved from the prodromal phase to the diagnosable “First Episode Psychosis: Schizophreniform . . .” diagnosed by Dr Ayonrinde at Joondalup (R10 p9). It may have done so, but there were so many unanswered questions raised by the evidence that we are unable to find that the schizophrenia continued to be aggravated by the employment related intensification of the early symptom of withdrawal, after admission to Joondalup.
174. We consider this matter to be similar to Commonwealth Banking Corporation v Percival. The Tribunal found that employment had not aggravated the underlying pathology of coronary artery disease but that stress at work had brought on or intensified the symptoms of the disease.. The Full Court of the Federal Court found that meant that there was an aggravation of the coronary artery disease, but that the aggravation was not compensable as there was no evidence that the aggravation continued after retirement.
175. In this matter no issue as to compensation for incapacity arises while Mr Achurch was still in the Navy. It is after his discharge that the issue becomes relevant. We find that there was an aggravation during the prodromal phase of the schizophrenia which was materially contributed to by employment, but we do not find that the aggravation continued after the prodromal phase developed into the next stage of the disease and Mr Achurch was admitted to hospital. It follows that we do not find that the aggravation resulted in incapacity or permanent impairment after discharge from the Navy on 11 December 1998.
176. On the material before the Tribunal at the commencement of the hearing, it appeared that there was agreement between the medical witnesses as to the importance of early treatment of schizophrenia. It also appeared that there was evidence pointing to schizophrenia having gone undiagnosed during Mr Achurch’s service on HMAS Adelaide.
177. Mr Kelly’s careful cross-examination, and his detailed knowledge of material, some of which, unfortunately, was not before the Tribunal until the last day of hearing, persuaded us that the picture was not nearly so clear as the witness statements and medical reports had indicated. We have concluded that we cannot find that there was any time prior to February or March 1998, when Mr Achurch’s poor functioning should have been noticed as a change from earlier higher functioning, such as would call for medical assessment. We find that Mr Achurch was at all times young, immature and a slow learner who made repeated mistakes. We find that the changes in his behaviour were not of such a nature as to indicate a need for medical assessment prior to February or March 1998.
178. We do not find that the course of Mr Achurch’s disease was aggravated by delay in commencing treatment. The evidence is that anti-psychotic treatment is not appropriate until there are clear psychotic symptoms and that a delay of approximately three months from detection of such symptoms before diagnosis and treatment would be “within the normal range in the community"” We find that there were no “clear psychotic symptoms” until, at earliest, February or March 1998, and maybe not even until May 1998 (R10 p2-5). From the time when “clear psychotic symptoms”, were noted in February or March 1998 progress towards diagnosis and treatment was reasonable and “within the normal range”.
179. The decision under review will be varied to provide that employment did contribute to an aggravation of the prodromal phase of Mr Achurch’s schizophrenia, but that the aggravation did not result in incapacity or impairment so as to entitle Mr Achurch to compensation in respect of his chronic schizophrenia.
180. That decision means that the decision under review has been varied in a manner favourable to Mr Achurch by recognising that his Naval employment did make some contribution by way of aggravation to the early stages of his disease. Accordingly under s 67(8) of the Act we have power to order that the costs of the application be paid by the respondent. We propose to so order.
181. We repeat our concern about the fact that relevant material, on which Mr Kelly relied to a considerable extent, was not included in the T documents. We refer in particular to the pre-enlistment psychological evaluation (additional Tdocs Bundle 1 pp1-3), and the performance evaluation reports (R8). Other relevant material which should also have been in the T documents includes the medical records (R10), the diary (additional Tdocs Bundle 2 pp40-46), the Training Progress reports (Tdocs Bundle 2 pp33-36), the admission record of 19 December 1992 (R10) and the Joondalup Hospital Records (R10). The applicant’s mother may have been aware of this material, but she and her legal advisors were not made aware, by the T documents or by the respondent’s Statement of Facts and Contentions, of the respondent’s reliance on that material. The Tribunal policy as set out in the General Practice Direction is that there should be a full disclosure of all relevant facts and contentions prior to a hearing. It is our view that it should have been made clear in the respondent’s Statement of Facts and Contentions, that it was contended that Mr Achurch was functioning at a marginal level prior to and at the time of entry to the Navy, that there was no change in behaviour such as to indicate a need for referral for medical assessment during service, until approximately February or March 1998, that treatment with anti-psychotics was not appropriate before the clear emergence of frank and sustained positive symptoms and that when that occurred steps proceeded at a normal and appropriate pace. The respondent should also have clarified prior to the commencement of the hearing, whether it contended that drug use prior to or after the onset of the condition was a factor relevant to the failure of treatment to achieve any significant improvement.
I certify that the one hundred and eighty‑one [181] preceding paragraphs are a true copy of the reasons for the decision of:
Mrs Joan Dwyer, Senior Member
Signed: Grace Carney
Personal Assistant
Date/s of hearing: 11 ‑15 November 2002
Date of decision: 12 September 2003
Counsel for applicant: Ms C Crawford & Mr M Heron
Solicitor for applicant: Gibson & Gibson
Counsel for respondent: Mr B Kelly
Solicitor for respondent: Sparke Helmore
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