Aitken and Military Rehabilitation and Compensation Commission
[2005] AATA 31
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/373
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL ALLAN AITKEN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Senior Member L HastwellDate14 January 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – alleged sexual and physical assault – time limits complied with for giving notice and bringing claim – post-traumatic stress disorder – decision affirmed
Commonwealth Employees Compensation Act 1930 ss 4, 16
Compensation (Commonwealth Government Employees) Act 1971Safety Rehabilitation and Compensation Act 1988 ss 4, 7, 14, 124
The Australian National Airlines Commission v Cassidy (1964) 11O CLR 172
Muras and Department of Defence (AAT 13196, 21 August 1998)Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 (25 November 2004)
Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 10 AAR 382
Commonwealth of Australia v Connors (1989) 10 AAR 395
Black v City of South Melbourne [1963] VR 34REASONS FOR DECISION
14 January 2005 Senior Member WJF Purcell
Senior Member L Hastwell1. On 23 February 1998 Michael Aitken (the applicant) lodged a claim for rehabilitation and compensation for post-traumatic stress disorder (PTSD) and a schizophrenic condition, which he attributes to a sexual assault that he sustained in the course of his employment with the Royal Australian Navy (the Navy) on 14 February 1970.
2. The respondent denied liability for the applicant’s claim. His claim for compensation was first rejected on 27 July 1998. Subsequently, an extension of time was granted within which to request a reconsideration. On 9 October 2002, the respondent affirmed the determination under review. In that determination the Department considered that the relevant legislation to be applied was the Commonwealth Employees Compensation Act 1930 (the 1930 Act). The Department accepted the medical evidence that the applicant suffered from PTSD, but did not accept that it was due to the nature of his employment with the Commonwealth. The delegate considered that there was no independent evidence to substantiate the allegation that the applicant was sexually assaulted in the course of his employment; and was not satisfied that the condition of PTSD was due to the nature of his employment as required by the legislation.
3. The delegate also considered the time limitation provisions contained in s 16 of the 1930 Act, and considered that the failure to give notice or lodge a claim for 28 years had severely prejudiced the Commonwealth. The delegate was not satisfied that the failure to lodge a claim was occasioned by mistake, absence from Australia or other reasonable cause, these being the remedial provisions contained in s 16 of the 1930 Act. The applicant’s claim was therefore also out of time.
issues before the tribunal
4. The preliminary issue before the Tribunal arises from the transitional provisions of the current legislation. The Tribunal must first determine under which legislation the claim lies to be determined.
5. Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act) provides as follows:
“(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
6. The words “injury” and “impairment” as used in s 14(1) of the 1988 Act are defined in s 4(1) of the 1988 Act to include a “disease”. A “disease” is defined in s 4(1) of the 1988 Act as follows:
“(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;”
7. The word “ailment”, which is referred to in the definition of “disease”, is defined in s 4(1) of the 1988 Act as follows:
“… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);”
8. The parties agreed that PTSD is considered a disease for the purposes of the 1988 Act.
9. The 1988 Act provides in s 7(4) that an employee is deemed to have sustained an injury, being a disease, on the day when:
“(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
10. Section 124(1A) of the 1988 Act provides:
“Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.”
11. Section 124(2) of the 1988 Act goes on to provide that a person is not entitled to compensation under the 1988 Act in respect to injury, loss or damage suffered before the commencement day of that Act if compensation is not payable in respect of that injury, loss or damage under the legislation that was in force when the injury, loss or damage was suffered.
12. The Tribunal must determine when the applicant first sustained an injury, which in this instance requires it to consider when the disease from which he now suffers, namely PTSD, first resulted in an incapacity or impairment for work in the terms of s 7 of the 1988 Act.
discussion of the evidence with respect to the date the injury occurred
13. The applicant joined the Navy on 22 November 1969. He was subsequently discharged from the Navy as “unsuitable” on 25 December 1971.
14. The applicant’s evidence was that an incident occurred on 14 February 1970 while he was doing his Naval training. He claims to have been sexually assaulted by three unknown assailants in a shower block at HMAS Cerberus (Cerberus). He claims to have been anally raped by at least one of the assailants. He suffered facial injuries in the assault. He sought medical treatment immediately for the physical injuries he sustained in the assault, although not for any psychological injury or trauma that he alleges he sustained. He was admitted to hospital for 9 days. He advised medical staff that he had slipped over in the shower block, and hit his face on the taps, thereby sustaining the injuries for which he sought medical treatment. He made no disclosure of the assault to medical staff, nor did he subsequently make any disclosure of the incident to his employer until he lodged a claim for compensation in February 1998.
15. The applicant’s evidence, as contained in his statement [Exhibit A1], and subsequently confirmed in his oral evidence, was that immediately after the incident in February 1970 he was very embarrassed, he could not sleep properly, he became reluctant to have showers because of the fear of being attacked again, and he was reluctant to go to sleep at night. He would fall asleep on duty, and he would avoid washing his clothes as much as he could because clothes had to be washed in the shower area where the incident had occurred. He claimed to have increased his consumption of alcohol as a result of the distress and trauma he suffered.
16. The applicant stated that his employer sent him to a psychiatrist in July 1970 for an assessment. When asked why this referral was made, he said that he had developed bad habits, he was not coping, he was getting drunk all the time, checking the toilets and the showers, and sleeping above deck. He reported to Dr Blakemore, when asked when he first became depressed, that it had been since 1970. Under cross-examination when asked why he first chose to tell someone 28 years later, his response was “because it had been running around in my head that long”.
17. On the applicant’s own evidence, the first impairment for work and the beginning of an incapacity for work began during the first half of 1970, with a first referral for a psychiatric opinion being in July 1970.
18. Counsel for both the applicant and the respondent agreed after hearing the evidence, that the relevant date for the purposes of s 7(4) of the 1988 Act was at some stage in 1970, at a time when the relevant legislation was the 1930 Act. The Tribunal finds that based on the applicant’s evidence, the impairment and the beginning of an incapacity for work manifested itself during 1970. Certainly by the time he was sent for a psychiatric assessment in July 1970, he was, on his account, aware of his impairment. The Tribunal therefore must have regard to the terms of the 1930 Act, and the applicant’s entitlement pursuant to the provisions of that particular Act.
19. “Disease” is defined in s 4(1) of the 1930 Act in general terms as “any physical or mental ailment, disorder defect or morbid condition, whether of sudden or gradual development …”. The Tribunal is satisfied that PTSD is a disease within the meaning of the 1930 Act.
20. Section 4(2) of the 1930 Act provides that reference to personal injury arising out of or in the course of employment is to be read as including a reference to a disease due to the nature of the employment in which the employee was engaged by the Commonwealth.
21. Section 9(1) of the 1930 Act provides:
“If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.”
22. Section 16 of the 1930 Act sets out the time within which a claim must be lodged. Section 16(1) of the 1930 Act provides:
“The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made-
(a) within six months from the occurrence of the accident; or
(b) …
Provided always that-
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”
23. Section 16(4) of the 1930 Act deals specifically with notice with respect to diseases, and states as follows:
“16(4) In the application of this section, in accordance with section 10, and sub-section 4(2), of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -
(a)notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner -
(i) …
(ii) in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;
(b) a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made—
(i) in the case of a claim arising out of the death of the employee caused by the disease - within six months after advice of the death was received by the claimant; or
(ii) in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death.
(c) a notice shall, for the purposes of sub-section (2) of this section. be deemed to contain the date at which the accident happened if it specifies the date at which, or period during which, the employee contracted the disease; and
…”
24. Notice will be deemed to have been served in accordance with s 16(1) of the 1930 Act if notice of the contraction of the disease was served on the Commissioner as soon as practicable after the employee first became aware that he was suffering from the disease.
25. From the evidence before it, the Tribunal finds that the applicant, on his own evidence first became aware that he was suffering an impairment or incapacity in July 1970 when he was referred by his employer for a psychiatric assessment. Notice should have been given to his employer “as soon as practicable” after the applicant became aware of the disease, and s 16(4)(b)(ii) of the 1930 Act requires the claim be made within six months of the notice.
26. It is common ground that the applicant did not serve any notice of his injury on the Commissioner for Employees’ Compensation, and did not lodge any claim for compensation with respect to PTSD until February 1998, some 28 years after the injury was sustained.
27. It is notable that the applicant did lodge a claim with respect to the injury sustained on 14 February 1970. That claim was made in January 1996, and was for “deviated nasal septum, asthma and bronchitis”. The assault was not disclosed. That claim was accepted.
28. It has been held that the word “admit” in s 16(1) of the 1930 Act means “entertain”, and not “grant” [The Australian National Airlines Commission v Cassidy (1964) 11O CLR 172 and Muras and Department of Defence (AAT 13196, 21 August 1998)]. The Tribunal cannot consider the claim at all unless there has either been compliance with the requirements of s 16, or the ameliorating provisions as set out in s 16(1)(b)(i) and (ii) of the 1930 Act are found to be applicable in this case. The threshold issue must first be determined by the Tribunal.
29. The Tribunal refers to the comments of Deputy President Jarvis in the case of Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 (25 November 2004):
… “the purpose of the requirements of s 16 of the 1930 Act was to protect the Commonwealth against the possible abuse of the Act which might occur if claimants did not give prompt notice of work related accidents, and did not promptly pursue any resulting entitlement to claim compensation …”.
30. It is conceded by the applicant and it is evident that the Commonwealth has been significantly prejudiced by the 28 year delay in the applicant giving notice. The Commonwealth has been given no opportunity to investigate the circumstances of the assault, look to corroborating evidence, nor the opportunity to ascertain the identity of the perpetrators. Mr Paul Ontong has sworn an affidavit, which is contained in Exhibit R1, as to the prejudice the Commonwealth faces in this case. The applicant does not challenge Mr Ontong’s statement. Nevertheless, if the Tribunal is satisfied that the failure to give notice was occasioned by mistake, absence from Australia, or any other reasonable cause, then the claim can be entertained by the Tribunal under the 1930 Act.
31. Sections 16(1)(b)(i) and (ii) of the 1930 Act contain ameliorating provisions whereby if the applicant establishes that the want of notice and/or failure to make a claim was occasioned by mistake, absence from Australia or other reasonable cause, then the claim can be considered. Mistake is not asserted by the applicant in this case and absence from Australia is not relevant.
32. The applicant’s case was that failure to provide notice as soon as practicable and make a claim after he became aware of the difficulties he was experiencing, and within six months, was occasioned by “other reasonable cause”, within the meaning of ss 16(1)(b)(i) and (ii) of the 1930 Act. The applicant, through his counsel, asked the Tribunal to find that the nature of the condition from which he suffers, namely PTSD occasioned by the assault, could provide such a “reasonable cause”.
33. If the applicant can establish to the Tribunal’s satisfaction that there was some “other reasonable cause” as to why he did not give any notice to his employer during the relevant period, despite prejudice to the Commonwealth, then the Tribunal can go on to consider the claim and whether the disease from which he suffers, namely PTSD, was caused by the nature of his employment with the Commonwealth, and whether he has an entitlement to compensation.
34. The authorities support the proposition that in applying the relevant remedial provision, the Tribunal must look to the period during which the claim should have been made in determining whether some “other reasonable cause” exists within the meaning of the legislation:
35. In Re Willis and Australian Telecommunications Commission and the Commonwealth of Australia (1989) 10 AAR 382 the Tribunal reviewed the prior authorities on this point, and concluded that with respect to the excuses of mistake or other reasonable cause:
“ … It is clear that the whole period of the failure to bring an action need not be covered by the “other reasonable cause”, but rather the Tribunal must confine its consideration to whether the applicant had some “other reasonable cause” for failing to bring the action as soon as practicable after he became aware of his impairment or incapacity commencing being the test applicable with respect to a disease.”
consideration of the law
36. In considering the evidence the Tribunal must have regard to prior authorities as to what constitutes some other reasonable cause within the meaning of s 16 of the 1930 Act. In the joint judgement of Northrup and Ryan JJ in the Federal Court in Commonwealth of Australia v Connors (1989) 10 AAR 395, there is a useful discussion of the law with respect to what constitutes “reasonable cause” within the meaning of the section. They note that the words “other reasonable cause” have been considered in many authorities, and refer to Black v City of South Melbourne [1963] VR 34 and comment:
“As was said by the Court in Black’s case (at 38), when considering “reasonable cause”:
“The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression “reasonable cause” appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. In Quinlivan v Portland Harbour Trust [1963] VR 25 at 28, Sholl J. used these words: “The sub-section means to refer to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.””
…”
37. In Re Willis (supra), the Tribunal concluded at p 34:
“the consideration of the facts in each case against these principles show that each has applied the test by looking at what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test, taking into account the subjective circumstances of the plaintiff in each of those cases. …”
38. Before reviewing the evidence, the Tribunal should also comment, even though it has not been asked to consider the issue of mistake, that it is established authority that ignorance as to a person’s rights is insufficient to establish mistake, pursuant to s 16 of the 1930 Act. In Connors (supra), Northrupp and Ryan JJ said at p 250:
“From the authorities it is clear that in this context the word “mistake” includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other “reasonable cause”.”
It is an established principle that ignorance of the law is not a mistake.
the evidence of the applicant
39. The applicant was not a convincing witness. There were inconsistencies in his evidence, and there were inconsistencies between his evidence before the Tribunal and statements made at other times and reported to have been made by him. The Tribunal formed the view that at times he was providing answers that he thought would promote his claim, rather than providing a truthful response to the questions asked. His demeanour was at times very guarded, and to use a term used by one of the medical witnesses, the applicant was at times very “cagey” in his responses to questions put to him by the Tribunal.
40. The applicant’s evidence was that he was subjected to a sexual assault in February 1970 when in the shower block of Cerberus. He has given varying accounts of the details of the incident over the years. He is reported to have told one doctor that he was anally raped by “at least” two people [Dr Rowe’s report Exhibit A2]. He advised other doctors, and was adamant when giving evidence before the Tribunal, that he was raped by one person. He remained consistent with the allegation that he was anally raped, and that there were three persons involved in the incident; that he did not know the identity of the three persons involved, nor did he ever see them again. He says that he fought back to try to avoid them from attacking him; that no one came into the shower area whilst this was happening. He believes he may have lost consciousness for a period during the assault. After the assault the three individuals left.
41. The applicant sustained a nasal fracture without displacement in the incident. His statements over time varied as to whether he either returned to his room of his own accord, and sought help from roommates, or whether someone found him in the shower area. It is common ground that he was taken to hospital for medical treatment and was admitted as an inpatient. When asked as to the cause of his injuries, he told doctors that he had slipped over in the shower and hit his head on taps. He saw no counsellors whilst in hospital. He was sent home for a week or two after being in hospital. He said that he did not discuss the incident with his family, and he made no disclosure of the alleged assault to medical authorities either at that point in time, or at any other time while he was in the Navy. He was discharged from the Navy as being “unsuitable” in December 1971.
42. There was what appears to be a persistently inaccurate report by the applicant as to the nature of the injuries sustained by him in the alleged assault. The contemporaneous Naval medical records contained in the T documents note that when he was admitted to hospital on 14 February 1970, there was blood and clear fluid coming out of his nose. X-rays showed fractured nasal bones, with minimal displacement. There was no skull fracture. Observations had remained normal during his 9 day period of hospitalisation, and his only complaint reported upon discharge was that of a mild headache.
43. In his reports to psychiatrists many years after the event, the applicant reported that he had sustained two black eyes, a fractured skull and a broken nose. This was incorrect information and misleading, in that it suggested to the subsequent treating doctors that the applicant had sustained a higher degree of physical trauma than that which he actually sustained in the incident in the shower block. The contemporaneous medical notes do not refer to facial bruising or to black eyes. There was no skull fracture. The Tribunal accepts that the applicant may himself have been generally under the impression he sustained a skull fracture, when in fact he did not.
44. The applicant’s explanations for his failure to give any notice of the injury varied. In Dr Furze’s notes of 1997 [Exhibit R5] which represent the first recorded report of the incident, Dr Furze notes, inter alia, as follows:
“…
· was asked about the incident said slipped over in the shower and hit the taps
· didn’t tell room mates
· didn’t tell the doctor (& wouldn’t have if asked)
…”
Dr Furze then refers to the psychiatric referral in the “late 1970s”and notes:
“… didn’t talk about rape wouldn’t have
…”
Dr Furze was not available to give evidence before the Tribunal.
45. Dr Ryan was also not available to give evidence as he was overseas. In his report to the applicant’s solicitors dated 23 June 2003 [Exhibit A5] he comments that his referral was from Dr Elaine Jensen who commenced seeing the applicant in 1999. He referred to his referral note from Dr Jensen in the following terms:
“… The referral note went on to say that he never told anyone about the event at the time and was discharged from the Navy 2 years later. …”
No further comment was made about the failure to report.
46. Dr Rowe took over treatment of the applicant when Dr Ryan left to travel overseas. He first started treating the applicant in August 2003. In his report [Exhibit A2] dated 3 June 2004, he comments:
“… Mr Aitken told me that he told the hospital staff that he had slipped over in the shower. Mr Aitken told me that he told the staff that story because he was too distressed to disclose what had really happened. … he told me that he did not tell anyone at the time what had really happened.
…”
47. Dr Blakemore saw the applicant at the request of the respondent. The applicant’s explanation for the failure to report the incident is reported in Exhibit R2, being Dr Blakemore’s report of 17 March 2004. He is reported as explaining his failure to report on the basis of “in those days you didn’t say nothing”.
48. In his evidence-in-chief, the applicant gave several explanations for his failure to report the incident. He said “You don’t say nothing. You do not carry a load on your back” Later on he commented that he was from the country, and the culture at the time was that you did not “spill the beans” on other individuals. He later in his evidence commented “loose lips sink ships”. He did not elaborate further on any of these comments.
49. Under cross-examination on this issue, the applicant made the comment “I was doing a security clearance … I wanted nothing to bugger up my Navy career. You don’t say nothing, other shit going on there. You just say nothing and carry on with your work”. He would not elaborate at all on this point, which he had not previously raised. Under further cross-examination as to his failure to report the incident, the applicant stated that if he had reported it, there would have been a disciplinary process. Later again under cross-examination he commented “I could have told them – I just didn’t”.
50. When asked why he did not at least disclose the incident when he found himself being discharged as unsuitable for the Navy in December 1971, the applicant responded “Because you say nothing”.
51. The Tribunal finds that the applicant’s own explanations as to why he told no one for 28 years of the incident were not convincing as to any particular reason for the failure to report the incident. The suggestion of a “security clearance” that came up in the course of cross-examination was in the Tribunal’s view an example of the applicant’s tendency to provide a response that he thought might improve his case, rather than providing a genuine response. The issue of a security clearance or a potential disciplinary process made little sense, and had never previously been raised by the applicant, including in his statement [Exhibits A1]. He suggested a degree of embarrassment associated with the fact of the sexual assault, but also indicated that he wanted to continue his career in the Navy, and could not understand why he had been discharged.
52. The applicant’s own evidence as to his time in the Navy after the alleged incident did not point to a degree of distress that was so overwhelming that he could not have reported the incident to authorities. On his own account, he received psychiatric and medical treatment on a number of occasions while serving in the Navy, but simply did not avail himself of the opportunity to mention the incident.. His own evidence did not support a finding that he was suffering from PTSD during his period in the Navy such that he was disabled from reporting the incident. He appeared to enjoy aspects of Navy life. He developed a personal relationship to a point where he became engaged to marry. He planned to do other courses and was disappointed at his discharge.
the medical evidence
53. The Tribunal turned to consider the available medical evidence as to the applicant’s PTSD, and as to whether there was objective evidence that it was a factor that in itself gave rise to a “reasonable cause” for failing to give notice of the incident that gave rise to his injury.
54. The Tribunal first considered the contemporaneous medical records of the applicant’s time in the Navy contained in the T documents to see if there was any objective indicator of his mental state in the 6 months or year following the incident.
55. The medical records contained in the T documents show that he received medical treatment in May 1970 for tonsillitis, and once more in June of that year for a cold and tonsillitis. Then in July of 1970 he was referred by his superiors for a psychiatric assessment. An out-patient record dated 31 July 1970 [T12/69] contains a summary of this initial assessment. It refers to him having been in minor trouble since being on board, such as going to sleep on watch and being dirty in his personal habits. It refers to some flattening of affect and personality, some blunting and blocking of thought. His family relationships were discussed, and it is reported that the applicant made the comment that psychiatry might help him keep out of trouble. It reports that he stated that he liked the Navy and wished to stay in, and that he had a “not serious” relationship with a Sydney girl. He commented that he gets picked on, but “shrugs it off.”
56. There are two further reports of consultations on 10 August 1970, and 11 August 1970 [T12/69a]. On 10 August 1970 it is once more noted that “he likes the service” and that he was “happy in his ship”. On 11 August 1970 the summary is that “He seems a cheerful soul, but gives the impression of being somewhat limited in intelligence. He smilingly admits to getting into a bit of bother but says he trys [sic] but it seems to turn out wrong”. The assessment concludes that it was doubtful that he suffered any serious psychiatric disturbance.
57. The applicant saw medical staff on a number of occasions between that date and when there was a next psychiatric presentation in August 1971, including presenting with a knife wound in July 1971 which is reported in the notes as “Knifed last night in St Kilda” .
58. The applicant had a further significant psychiatric presentation in August /September 1971. He initially presented on 31 August 1971 with dizziness and weakness following a blow to the occipital region some four days earlier, after an incident when he was hit over the head by a block of wood by his bride-to-be, after he was late for their planned wedding. The notes report that he had travelled to Adelaide to marry a girl that he believed he had “got into trouble”. He could not catch a plane that would get him there on time. When he got there, the girl asked him to go outside, and then hit him over the head with a block of wood. He decided she was not the girl for him, left without saying goodbye, and returned to the Navy. He suffered what was ultimately diagnosed as a hysterical conversion reaction. He spent some 27 days in hospital and was then given 10 days sick leave.
59. The consultant psychiatrist dealing with the applicant’s case wrote a note on 12 October 1971 in the applicant’s medical notes as follows:
“This sailor has now recovered from his hysterical conversion symptoms and reverted to what I gather from his records he was like before.
He presents now as an emotionally immature psychopathic personality. … It is difficult to separate fact from fiction. …” [T12/42]
60. From medical reports before the Tribunal and from the applicant’s own evidence, it would appear that he had a significant number of medical conditions over the years after leaving the Navy. His first serious injury occurred when he fell off the back of a truck while working for his step-father in the mid 1970s. He sustained a broken tail bone, and that left him with ongoing back problems. Dr Blakemore reports that the applicant reported that he enjoyed bike racing at various country tracks, and that in the course of that racing sustained injuries, including a broken right leg and collar bone.
61. The applicant confirmed in his own evidence that he had suffered a number of injuries over the years. He suffered injuries in pub fights. He sustained a shoulder injury in the course of employment in the late 1980s, for which he received Workers’ Compensation payments.
62. By September 1996, the applicant was in receipt of a Disability Pension, and it appears he did not work after the late 1980s at all. He then lodged a claim for total disability under a Disability Income Insurance Policy in 1996. He was successful in that claim. It is notable that at no stage was there any suggestion of psychological or psychiatric problems in the course of that disability claim.
63. The Tribunal had before it, as Exhibit R7, a bundle of papers relating to that claim. They show that the applicant had a lawyer acting for him and promoting his claim. Various medical conditions were carefully considered in a number of doctors’ reports obtained for the purposes of the claim, including a report from his own treating general practitioner. He was diagnosed as suffering from bronchial asthma, internal derangement of the right shoulder joint, a ruptured bladder – voiding difficulties, lumbar spondylitis, fractured nasal bones, and osteoarthrosis of both knees. His general practitioner, Dr Owen Crompton, was consulted with respect to both the 1991 Workers’ Compensation claim, and the 1996 disability claim. Dr Crompton was asked to fill in a disability questionnaire for the insurer, which is contained in Exhibit R7. That questionnaire specifically asks in question 1 “Please list all physical, psychiatric and intellectual conditions”. It is notable that there was no mention of any psychiatric, mental or psychological problems in Dr Crompton’s response. Dr Compton outlines six conditions, none of which are psychiatric conditions, and all of which have been referred to above. Dr Crompton it appears, had been the applicant’s general practitioner for a number of years.
64. The disability claim was successful and was paid out. There was a lengthy process of medical examinations and interviews associated with that claim. It is notable that no report of any psychological or psychiatric problems was commented on in any of the material relating to that claim.
65. The applicant had further claims. It would appear from the evidence that he had two earlier claims against the Commonwealth. One was in 1996, and has already been mentioned, and it would appear there was an earlier claim in 1984 when a claim was lodged with respect to his nose injury. Again, it appears there was no mention of any psychological problems in either of these claims.
66. After lodging and being unsuccessful in his initial claim with respect to PTSD lodged in February 1998, the applicant then pursued a claim which ultimately went to the Veterans’ Review Board (VRB). Part of the claim was for PTSD with secondary alcoholism, and was reliant on establishing that an incident occurred in the course of operational service. The alleged incident was a scare charge incident that the applicant believed had occurred at Vung Tau Harbour, when he was on a period of operational service for 2 or 3 days in October 1970. The VRB rejected the claim, being of the opinion that the incident in question did not meet the definition of “experiencing a severe stressor” contained in the Statement of Principles. The VRB’s decision was dated 27 September 1999.
67. The applicant then applied for an extension of time to appeal the original decision of the delegate with respect to the claim for PTSD he had lodged in 1998. In a letter that the applicant admitted was written by Ron Coxon of the Vietnam Veterans’ Association, the applicant stated:
“… I am seeking witness to some of the incidents described and I am aware that there was an enquiry into “bastardization” in Navy Depots was held in 1970-1. I am also convinced that the incident that I experienced in the shower was not a fall. As I have stated I am attempting to locate witnesses but this is proving difficult. I believe the cause of my injury was wrongly reported on my admission to hospital to cover up what had actually happened. …” [T20/99]
68. The emphasis on the scare charge incident on HMAS Vendetta (the Vendetta) then disappeared from medical reports and the emphasis moved once more to the alleged assault in the showers. By 2002 the Report of Proceedings had been received by the applicant with respect to the Vendetta’s movements during the relevant period in 1970, and he was aware that the scare charge incident did not ever occur in Vung Tau Harbour. There was an incident during what can only be termed a friendly stay in Bombay Harbour that did not occur during operational service, and was also unlikely to be considered of sufficient severity to justify a claim.
69. The assault of 14 February 1970 was initially reported to Dr Furze in 1997 (after it had been reported to a counsellor at the Vietnam Veterans’ Association). Dr Furze was not available for cross-examination, but in his notes he reports that the symptoms reported to him by the applicant were flashbacks, memories every couple of days, avoidance of public toilets, and that he had no friends and was always looking for danger. He specifically noted that the applicant reported that he did not have nightmares. Dr Furze mentions the hysterical conversion reaction in 1971, there is no indication that he was given the context of that incident. There is no mention in his notes or his report of the fact that the hysterical conversation reaction followed the applicant being assaulted by his bride-to-be. Dr Furze accepted the injuries as recounted by the applicant, which included two black eyes and a fractured skull (none of which were reported in the medical notes).
70. Each psychiatric report had a different emphasis. Dr Furze, who was the first psychiatrist who reported on the applicant’s mental health, does not mention at all the scare charge incident, which subsequently became the focus of a claim for PTSD by the applicant, and it became the focus of later psychiatric reports until such time as the VRB rejected the applicant’s claim for PTSD associated with the scare charge incident, and the sexual assault assumed greater importance once more. It would appear that after seeing Dr Furze, a Dr Elaine Jensen saw the applicant. Dr Jensen then moved to Tasmania, and referred the applicant to Dr Ryan, with her referral note referring to him suffering from PTSD as a result of being raped during recruit training. It is notable that her referral note also referred to him having lead a solitary life since then, tormented by recurrent memories and nightmares of the event. This in itself is quite inconsistent with the evidence given by the applicant of the very full life that he led in his years following his discharge from the Navy.
71. Drs Furze, Ryan and Jensen were all unavailable to give evidence as to their reports, or to be cross-examined. In the circumstances the Tribunal attached the appropriate weight to their reports.
72. Dr Rowe was called by the applicant to give evidence. He is the current treating psychiatrist of the applicant. He has been seeing the applicant since mid 2003. It became clear from Dr Rowe’s evidence that when he took on the applicant as a patient he did not question at all the prior diagnosis, nor did he question the account of the incident given by the applicant. In his first report of 3 June 2004 [Exhibit A2] he noted specifically that he has assumed that all material provided to him was truthful and accurate, and that no matters likely to be relevant have been knowingly withheld from him. His first report focuses significantly on the alleged scare charge incident and not the assault. In this presentation, which was some years after the first presentation to Dr Furze, the applicant did not recount having flashbacks, but described “recurrent nightmares about this assault”. This is contrary to the account of events given by the applicant to Dr Furze. In that first report, which was at the time when Dr Rowe still believed that the scare charge incident in Vung Tau Harbour had occurred, there was also a significant focus on dreams that the applicant claimed to have continued to suffer. There was reference to “recurrent distressing dreams and nightmares about drowning”. None of this was mentioned to Dr Furze in 1997, nor was there any focus on these supposed dreams and nightmares about drowning in the applicant’s own evidence, which focussed on the sexual assault.
73. The Tribunal had the benefit of hearing Dr Rowe give evidence. Dr Rowe made it clear that he did not question the veracity of events and symptoms as put to him by the applicant. He provided two reports, the first one focussing at some length on the alleged scare charge incident and the supposed sequelae. The second report corrected the error he had made in his first report with respect to details of the scare charge incident [Exhibit A3].
74. The Tribunal accepts that Dr Rowe is a respected medical expert. Nevertheless, the Tribunal finds that his evidence was flawed in that he did not seem prepared to challenge at all, the diagnosis that the applicant had when he came to him. The applicant came to him in what appears to have been “compensation mode”. The applicant came to him to obtain expert evidence to support his claim, his prior claim with respect to the scare charge incident having failed. Dr Rowe did not apply a critical mind to the applicant’s presentation, but accepted everything put to him by the applicant, at face value. The Tribunal notes that Dr Rowe has an ongoing therapeutic relationship with the applicant.
75. Dr Blakemore was called by the respondent to give evidence. He saw the applicant on two occasions. Dr Blakemore was of the view that the applicant was not suffering PTSD, and he essentially doubted the veracity of the applicant’s story. Dr Blakemore had written two reports dated 17 March 2004 [Exhibit R2] and 8 September 2004 [Exhibit R3]. The Tribunal found him to be an impressive and credible witness. The Tribunal preferred his evidence to that of Dr Rowe. Dr Blakemore was willing to take a more objective and critical view of the case. He considered all the information, and was prepared to draw conclusions from the conflicting report of events given by the applicant over time. Dr Blakemore presented as a fair witness who found it at one level disturbing that he disagreed with his colleagues as to his opinion, but he stood firmly by that opinion.
76. Dr Blakemore made a number of points in the course of his evidence to the Tribunal. He said that the applicant’s presentation to him was very much one of a person involved in a compensation claim. The applicant essentially focussed only on the event which occurred 30 years ago, and asked Dr Blakemore to accept that he was now suffering PTSD as a result of that event.
77. Dr Blakemore found the applicant to be “cagey” with him, particularly on the second occasion when he saw him when he had written a report that was not entirely favourable to the applicant. This was quite consistent with the Tribunal’s own observations of the applicant’s evidence.
78. Dr Blakemore considered that the inconsistencies in the telling of the story was not consistent with his own experience with PTSD sufferers. He said it was unusual for different versions of a traumatising event to be given. On probably the first occasion he saw the applicant, the applicant told him:
“… when he came back to Cerberus, having been posted elsewhere, all of this came rushing back to him and he collapsed. And I thought my God, he must have been really traumatised, I was really surprised. And then at the end of the interview when I was going through the questions that had been asked, I read that he had actually been hit on the head by a piece of wood – with a piece of wood by a girl he was going to marry and when he hadn’t turned up on time for the wedding, and that had caused his collapse. And when I put this to him, he said “Yes that’s what happened” and I thought, he’s made it up you know. …” [Transcript p3]
This he considered significant.
79. In reference to this particular aspect of the applicant’s presentation, Dr Blakemore commented that he has never seen this with someone who is genuinely traumatised, as events are very stark, and do not change, let alone have what Dr Blakemore referred to as “add ons like that”. A point made by Dr Blakemore was that the “rough and tumble” life that the applicant had led since the incident could be the reason for all sorts of emotional presentations now, and that it was very difficult to “pick back” something that might have related a long time ago.
80. Dr Blakemore was taken through the diagnostic criteria for PTSD in his evidence. He pointed out that there had been a varying history of supposed symptoms suffered, including telling for instance Dr Furze that there were no dreams and then claiming he was having nightmares to other doctors. He commented:
“… People don’t say to one person they have nightmares and to someone else they haven’t. They either have them or they haven’t, and it’s an unusual presentation and goes to Mr Aitken’s veracity, and it’s a very unusual thing. …” [Transcript p4]
81. Dr Blakemore pointed out that the applicant got along with his life, married and had children. After the alleged event he got on with his Naval career, and was disappointed when he was asked to leave the Navy. Dr Blakemore did not consider his history consistent with significant distress or impairment in social, occupational or other important areas of functioning.
82. Dr Blakemore formed the conclusion that the applicant was not suffering from PTSD, and that a diagnosis of adjustment disorder with depressed mood may be applicable with the depression possible reactive to his chronic back pain and incapacity. In his report of 17 March 2004, he made the comment:
“… It is just not possible to tell from an interview like this whether Mr Aitken was raped, although he may well have been assaulted, it is very difficult to clarify at this stage, some 34 years after the alleged event, just what happened and what the effects of anything were. … Mr Aitken’s varying history about his hospitalisation with some hysterical condition, after being reminded about the fiancé incident, cast some doubt also about the reliability of his history; …”. [Exhibit R2]
83. Dr Blakemore also pointed out that the applicant had some skeletons in his cupboard. He had used alcohol and marijuana heavily over the years and pain killers. His son had suffered a brain injury. He had killed a man in a fight. Dr Blakemore formed the conclusion that the applicant did not suffer PTSD, and he considered it likely that a diagnosis of adjustment disorder with a depressed mood was applicable [Exhibit R3]. He clearly did not consider the applicant to be a particularly credible historian, and he doubted the incident occurred, but if it did, he did not consider that the evidence available supported a finding that the psychiatric problem that the applicant now suffered related to that incident.
conclusions
84. The applicant himself at no stage gave any satisfactory explanation for why he did not avail himself of the opportunity to report the incident that occurred to his superiors. The only basis for finding that he had some other reasonable cause for the failure to report would be if the Tribunal found that the applicant was suffering from such significant emotional disturbance in the period during which he should have given notice to his employer that he was incapable or disabled from giving notice or making a claim, in other words that the illness itself incapacitated him from giving notice or making a claim.
85. Applying the test as set out in the authorities to the explanations given by the applicant himself, the Tribunal is not satisfied that any of the reasons he has given for failure to give notice come within the concept of a reasonable reason for failing to give notice. In essence, he states that he did not give notice, and would not have done so. He himself does not give evidence that he was so highly traumatised and disabled by the event that he was incapable of giving notice. He appears to have been disappointed at his discharge from the Navy, and at times in his evidence he appeared to recall fondly aspects of Navy life, and was proud to present himself as a Vietnam Veteran in the years following his discharge from the Navy.
86. The Tribunal found the applicant’s recall of events to be at times confused, and at times contrived. The Tribunal does not accept the truth of the applicant’s assertion that any current symptoms from which he suffers are related to an incident that occurred on 14 February 1970. The applicant gave evidence that he certainly suffers from some significant symptoms now, and needs medication to sleep and to manage depression. Nevertheless on the applicant’s own evidence, there have been numerous adverse experiences in his life that in themselves were sufficient to give rise to his current depression and emotional difficulties. He has suffered chronic pain for many years. He has been addicted to pain killers, and has been a heavy user of marijuana and alcohol. His recounting of events was at times inconsistent, and not credible. He has spent time in jail for killing a man. He has led a colourful life that is quite inconsistent with the solitary withdrawn person Dr Jensen reported to Dr Ryan in her note of referral.
87. Dr Blakemore represented a critical objective analysis of the evidence as it was available to him. He questioned the veracity of the applicant’s account and found the account flawed. None of the other psychiatrists appeared willing to be objectively critical, and look to at the whole period of the years since the alleged incident when numerous other events had impacted on the applicant’s current presentation. There was a focus on just two incidents many years ago, and no focus on the numerous other events in the applicant’s life that may have given rise to his current presentation.
88. The Tribunal accepts Dr Blakemore’s opinion that it is impossible to link the applicant’s current presentation with an incident that may or may not have happened on 14 February 1970.
89. The Tribunal finds that there was no act or omission which operated to prevent the applicant from giving notice of the incident that occurred in the shower block in February 1970; if in fact such an incident did occur. The applicant had numerous opportunities during his period in the Navy to report to psychiatric authorities the difficulties that he was encountering. There is nothing in his medical notes or in the history as recounted by the applicant, that supports a finding that in the Navy, he was so traumatised that he was incapable of even speaking to medical authorities about the symptoms that he now alleges, he was suffering from the outset.
90. The Tribunal is not satisfied that there is any other reasonable cause within the meaning of ss 16(1)(b)(i) and (ii) of the 1930 Act, for the applicant to have failed to give notice during the period that he was in the Navy, or to lodge a claim, if in fact any incident, as alleged, did occur.
91. In all the circumstances of the matter the Tribunal will not entertain the applicant’s claim, which is out of time; and in any event the Tribunal is satisfied, on the whole of the evidence, that the applicant’s condition of post-traumatic stress disorder was not due to the nature of his employment with the Commonwealth.
92. For these reasons the Tribunal affirms the decision under review.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Senior Member L Hastwell
Signed: .....................................................................................
AssociateDates of Hearing 22/23 September 2004
Date of Decision 14 January 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Post-Traumatic Stress Disorder
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Limitation Periods
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