Bird and Military Rehabilitation and Compensation Commission
[2006] AATA 836
•29 September 2006
DECISION AND REASONS FOR DECISION [2006] AATA 836
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/209
GENERAL ADMINISTRATIVE DIVISION ) Re MARK GORDON BIRD Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date29 September 2006
PlaceHobart
Decision The decision under review is set aside and the matter is remitted to the respondent with the following directions:
1. That the respondent is liable pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1998 to pay compensation to the applicant for his post traumatic stress disorder arising from his service in East Timor between 4 February 2000 and 15 June 2000.
2. In the absence of any application for costs being made within fourteen days, the order of the Tribunal is that the respondent pay the applicant’s costs in these proceedings, such costs may include:
a) witness expenses at the prescribed rate
b) all reasonable and proper disbursements
c) all professional costs including counsels fees allowable under the Federal Court Rules on a party/party basis
3. Costs may be agreed between the parties
4. In the absence of agreement between the parties as to the amount of costs, the costs are to be taxed by the Registrar of the Administrative Appeals Tribunal.
..............................................
Senior Member
CATCHWORDS
Compensation – claim for post traumatic stress disorder - diagnosis of post traumatic stress disorder accepted as being related to incidents occurring in East Timor involving an accident with an East Timorese child and when the applicant was threatened with a loaded rifle - whether injury caused by employee’s serious and wilful misconduct – no evidence that applicant was under the influence of alcohol and or drugs at the time of the accident, nor had the applicant voluntarily and unreasonably submitted to an abnormal risk of injury – decision set aside
Safety Rehabilitation and Compensation Act 1988
Elvin and Comcare [1998] AATA 276
McPherson and Department of Defence [1998] AATA 455
Re Grime and Telstra (1994) 20 AAR 43
Re Robertson and CSR Shipping [2001] AATA 325
REASONS FOR DECISION
29 September 2006 Ms A F Cunningham (Senior Member) 1. Mark Gordon Bird has sought the review of a decision made by a Delegate of the Military Rehabilitation and Compensation Commission which disallowed his claim for compensation for operational stress. The original decision was made on 16 February 2001 and affirmed by a Delegate of Comcare on 24 July 2001.
2. Mark Bird’s claim for compensation relates to his period of service in the Australian Army in East Timor between 4 February 2000 and 15 June 2000.
3. It is Mr Bird’s contention that he is suffering from post traumatic stress disorder (PTSD) which results from certain incidents that he alleges occurred during the period of his service in East Timor. The first incident involved the knocking over of a child when Mr Bird was driving a Land Rover as a member of a convoy between Manatuto and Dili. The second incident was when he was threatened with a rifle by a drunken soldier during the course of putting him to bed.
The Legislation
4. The Application for compensation is made pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988 (the Act). Section 14 of the Act states:
“14(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.
14(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
14(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment”.
5. An injury is defined in Section 4 as follows:
“...
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment:
...”
6. The Act further defines disease as:
“...
"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 ...”
7. It is the applicant’s contention that he suffers PTSD being an “injury” within the meaning of the Act as a consequence of the two incidents referred to above.
8. It was the submission of Mr Morgan, counsel for the respondent, that in the event that the Tribunal found that the incident involving the running over of the child did not occur, the Tribunal should dismiss the appeal and affirm the decision under review. Mr Morgan submitted that the evidence suggests that it is only the accident involving the child rather than the incident involving the rifle that constituted the basis for Mr Bird’s PTSD.
9. However Mr Morgan’s contention that Dr Ratcliff was of the view that the consequences of the rifle incident on their own would not satisfy the diagnostic criterion contained in sub-paragraph A for post traumatic stress disorder is not necessarily correct. Dr Ratcliff’s response to Mr Morgan’s question as to whether the rifle incident would satisfy diagnostic criterion A for PTSD under DSM-IV was:
“Yes it would satisfy that. If it had been the only incident that had occurred, it could in a suitably vulnerable person have been productive of a post traumatic stress disorder, but it was not the content of his dreams, the content of his imagery. It was an event for which there was a witness, which he could more easily disclose but it is not the one that kept recurring”.
Background
10. Mark Bird is 43 years of age and lives with his wife and three children at Blackmans Bay in Tasmania. Mr Bird was born in Kent, United Kingdom where he married his wife, Helen in 1986. After leaving school at the conclusion of Year 10 he undertook an apprenticeship and attended college for four years. He completed a trade certificate in motor vehicle mechanics. He then worked in various areas including the building trade, for oil refineries, as a truck driver, bus driver and tow truck recovery driver. He was the plant manager for a quarry firm in Somerset. In 1991 Mr Bird and his wife left England to travel overseas for two years. They returned to the UK in November 1993. In 1994 they decided to emigrate to Australia and settled in Sydney in February 1995.
11. Helen Bird is a qualified nurse and worked at the St Vincent’s Private Hospital. Mr Bird opened a shop and associated removalist business in Sydney known as Fagin’s Furniture. In February 1998 Mr Bird joined the Army Reserve as a motor mechanic. The unit was based in Newcastle. Mr and Mrs Bird and the children moved from Sydney to Gosford where they purchased a house. Mr Bird then established “A to B Taxi Trucks”. Mr Bird sold his interest in Fagin’s Furniture when he moved to Gosford. The family moved to Tasmania in June 1999 and settled in Tunbridge where they rented a house. Mr Morgan suggested that the “rather bizarre move to Tunbridge” indicated instability and suggested a pre-existing psychological problem.
Post Traumatic Stress Disorder
12. Mr Bird’s treating psychiatrist, Eric Vaughan Ratcliff, stated in his letter of 15 January 2002, to Mr Bird’s general practitioner, Dr Merle Gray: “The diagnosis is undoubtedly of post traumatic stress disorder now complicated by major depressive symptoms”. Mr Bird had been referred to Dr Ratcliff by Dr Gray. He commented in his letter to Dr Gray that Mr Bird had been in considerable distress since his service in East Timor and had only recently disclosed the reason for this, first to Peter Bamford at the Vietnam Veterans’ Counselling Service and within the last few days to his wife, Helen. Dr Ratcliff then summarised the incident involving the striking of the child by Mr Bird whilst on convoy, Mr Bird’s consequential distress, vivid dreams and visions.
13. In his letter to Mr Bird’s lawyers of 15 April 2003, Dr Ratcliff stated: “In my opinion he has a quite severe post traumatic stress disorder and has in consequence developed a significant problem of alcohol abuse”.
14. On 1 March 2005 Dr Ratcliff reported having seen Mr Bird on 52 occasions including a period of 17 days in hospital when he was under his care in June and July 2003. It was at the first and subsequent consultations that Dr Ratcliff formed the opinion that Mr Bird was suffering from a severe PTSD with secondary alcohol abuse. In response to specific questions posed by Mr Browne, counsel for Mr Bird, Dr Ratcliff responded that in his opinion, Mr Bird’s current condition stems from his experiences in East Timor with secondary symptoms resulting from the alcohol and drug abuse.
15. Dr Ratcliff maintained his opinion throughout his evidence before the Tribunal. The DSM-IV checklist for post traumatic stress disorder was tendered in evidence and Dr Ratcliff was asked for his opinion as to whether Mr Bird’s circumstances satisfy the relevant criteria. It was Dr Ratcliff’s evidence that all of the diagnostic criteria for 309.81 post traumatic stress disorder in the DSM-IV manual are met in Mr Bird’s case. In his opinion the incident involving the running over of the child in East Timor meets criterion A. The incident when Mr Bird was threatened with a rifle by a drunken fellow soldier was also, in his opinion, capable of satisfying criterion A but he said that it was the incident involving the child that arouses the recurring dreams and images in accordance with criterion B. Dr Ratcliff was satisfied that all of the factors appearing in criterion B were met in Mr Bird’s case.
16. Dr Ratcliff also addressed the factors listed in criteria C and D. In respect to criterion E, Dr Ratcliff commented that Mr Bird’s disturbance had been continuous since he first saw him in January 2002 and that the available history indicates that it has been continuous since his return from East Timor. In his opinion the level of Mr Bird’s distress is very great with a quite severe level of impairment.
17. Dr Sale’s initial diagnosis of Mr Bird was alcohol and poly substance abuse. In his report of 13 February 2001 Dr Sale said that he had difficulty in reaching a firm diagnosis at Mr Bird’s initial assessment. He had then concluded that he might suffer from dysthymia and that he was using alcohol excessively. Mr Bird had not reported the incident about knocking over the child in East Timor to Dr Sale until his second consultation on 6 January 2004, when he also spoke of the incident when a drunken soldier had threatened him with a rifle.
18. Dr Sale described in detail the history of Mr Bird’s state of mental health and concluded that:
“His current mental state is not inconsistent with a post traumatic stress disorder, but in general I would have expected a greater deal of overt agitation and irritability. It may be the medication and alcohol he used before the interview modified the situation”.
Dr Sale went on to state:
“The diagnosis of Mr Bird’s condition depends on whether his current history is accepted at face value. I think the only unequivocal diagnosis that can be made is alcohol abuse or dependence. I had earlier thought him to have a depressive condition because of his depressive symptoms that he reported. He now reports other symptoms that are consistent with a post traumatic stress disorder”.
19. Dr Sale noted that: “In psychiatry, the diagnosis is based substantially on the history”. Dr Sale agreed that an incident involving the running over of a child would constitute a traumatic event in the terms of diagnostic criterion A for PTSD. Dr Sale also agreed that Mr Bird’s symptoms of disturbed sleep with frequent nightmares, flashbacks experienced whilst driving, of figures moving in front of the vehicle, the avoidance of children, anxiety symptoms and irritability were representative of PTSD. Major depression as well as alcohol abuse can accompany a PTSD he said.
20. On the basis of the history recounted by Mr Bird, Dr Sale agreed that the diagnostic criteria for PTSD are met. It was evident that Dr Sale however, had some difficulty in accepting the history as presented by Mr Bird. As he commented, if the history is suspect then the diagnosis of post traumatic stress disorder must accordingly be also suspect.
21. Dr Sale agreed that the rifle incident as reported by Mr Bird and if accepted, could also constitute a traumatic event within the meaning of criterion A, particularly a threat by the soldier to blow off Mr Bird’s head. Dr Sale said that the knowledge that a firearm is loaded would have more impact than the threat itself.
22. When Dr Sale was asked whether Mr Bird may have imagined an event such as striking and injuring a child, his response was that it was unlikely given the detailed account of the incident and the aftermath of it when he returned to Dili.
23. Dr Sale suggested that his difficulty in accepting Mr Bird’s account of events was that he was effectively given two histories, version A and version B. During the first consultation Mr Bird reported that his problems were due to him being English and a reservist whereas during the second consultation he told Dr Sale about the incident involving the child and the rifle incident. Dr Sale said that he was not sure which history to believe.
24. Upon his return to Tasmania following his period of service in East Timor, Mr Bird was referred by the Vietnam Veterans’ Counselling Service to Peter Bamford, registered psychologist for counselling. Mr Bird commenced seeing Mr Bamford in October 2001. It was during sessions 5 and 6 that he revealed details of the driving incident involving the child and the rifle incident. Mr Bamford commented that this is “typical of combatants who need to feel safe in a therapeutic setting before they fully self disclose”. He concluded that it were these two traumatic events and their sequeale which manifested in Mr Bird’s severely dysfunctional behaviour since his return from East Timor which is strongly indicative of PTSD. Mr Bamford said that he had no reason to doubt the truthfulness of Mr Bird’s account of his experiences.
25. Dr Robert Athey, consultant psychiatrist, opined in his report dated 4 May 2005 that Mr Bird suffers from PTSD and is totally incapable of any form of work as a result. Dr Athey addressed the DSM 4 criteria in detail. Dr Athey’s report included an account of sexual assault when Mr Bird was serving in the sea cadets in the United Kingdom. He said that Mr Bird had suffered considerable guilt as a consequence of the molestation and the fact that he had not spoken up and “saved his mates”. Dr Athey concluded that these incidents of molestation would fit the PTSD criterion A. In his opinion Mr Bird had been able to live with the memories of sexual assault until they were re-aroused by the incident involving the child in East Timor.
26. For the purposes of these proceedings, the diagnosis of PTSD must relate to an event or events which occurred during Mr Bird’s period of military service. As Dr Sale correctly noted, the diagnosis of PTSD depends on whether Mr Bird’s account of the incidents is accepted.
27. Dr Ratcliff was asked if there was any evidence of Mr Bird suffering a personality disorder or impairment prior to his service in East Timor. Indicative factors being job instability, restlessness and a prior experience of childhood sexual abuse.
28. In Dr Ratcliff’s opinion it is not unusual for people with limited education or skills to change jobs regularly or have a desire to see the world. Although he agreed that childhood sexual abuse can contribute to a vulnerability for such conditions as PTSD, Dr Ratcliff said that he did not have any basis upon which he could conclude that the sexual abuse encountered by Mr Bird had caused a major personality disorder. In his opinion the severity of the incidents in East Timor as reported by Mr Bird outweigh any of these other contributory factors.
East timor
29. Mark Bird arrived in East Timor in February 2000. Approximately three weeks later he injured his neck and shoulder during unarmed combat training. His evidence was that he had landed badly after a forward roll and injured two discs in his neck. As a result he was unable to continue his work as a mechanic and accordingly placed on light duties which included work as a bar attendant and a driver.
30. It was Mr Bird’s evidence that he was prescribed valium and panadeine forte for his neck injuries. His service medical records relating to the incident indicate that the injury occurred on 26 February 2000 during a PT session. The copies of the out-patient clinical records tended in evidence are difficult to decipher and I am unable to see any specific record of Mr Bird having been prescribed either valium or panadeine forte at the initial consultation following his neck injury. On the 28 March there is a reference to analgesics and on 3 April, 27 April and 3 May to diazepam. There is a reference on 1 March 2000 to predefine which is a paracetamol containing codeine.
31. Mr Bird believed that it was Dr Chambers who had initially prescribed the panadeine forte but he was unable to produce any documentary evidence of the prescription. It was Mr Bird’s evidence that he was given valium when he first went to hospital for his neck injury because he recalls that “it was straight into my back” and helped “stop the nerves twitching”.
32. The RAP Daily Sick Parade Attendance Record tended in evidence stated that Mr Bird jarred his shoulder/back on 26 February and was prescribed analgesia. On 1 March the treatment was recorded as NFFD x 1 day restricted duty x 2 days. His injury was reviewed on 2 March with no treatment prescribed. Analgesia was prescribed on 3 March. There is no further record until 28 March when another review was conducted. The next entry was on 15 April for a review and again on 27 April. On 3 May the attendance record states that diazepam was prescribed. The specialist referral report by DMO Arthur dated 27 March 2000 states as the reason for a referral inter alia “that whilst Mr Bird initially had a good response to NSAIDS and physio he now presents with residual right neck and shoulder pain. The request is to review ongoing neck pain and continue physio and NSAIDS”.
33. It was Mr Bird’s evidence that he was given valium and panadeine forte by the Egyptian physiotherapists who treated him at the UN hospital. When it was put to Mr Bird that such medication was unable to be handed out without a prescription, he confirmed his evidence that he was initially treated with valium in the hospital and then given the drugs by a nurse at Camel Barracks. It was Mr Bird’s evidence that he was given enough valium at the hospital to last for approximately a month. Whilst the record of Mr Bird’s hospital treatment on 26 April was not tended in evidence, the daily sick parade attendance record confirmed that he was prescribed analgesia on 26 February which may have been the panadeine forte that he referred to.
34. Mr Bird maintained that he attended for physiotherapy at the UN Hospital twice a week. No records of Mr Bird’s physiotherapy treatment were produced. A specialist referral and report dated 27 April 2000 states that Mr Bird was referred to the UN hospital for physio and the reason for referral was stated to be “continue physio for traperus strain”. There was evidence that following his neck injury he was seeing a doctor between three and at times four times a week. Mr Bird recalls the doctors writing notes of the attendances on pieces of brown paper. There were no records of such attendances produced at the hearing. Mr Bird expressed surprise at the minimal volume of medical records tendered and commented that his file seems to have shrunk rather than enlarged. He said there were four occasions when his files were inspected for various reasons and on each of those occasions particular records were missing.
35. While there is little documentary evidence to verify Mr Bird’s claim that he was treated with panadeine forte and diazepam, the medical records tended in evidence were incomplete. The Tribunal does not reject Mr Bird’s evidence that he was given these drugs by the Egyptian physiotherapists who treated him at the UN hospital. It may be accepted practice that such drugs are not administered in Australia without prescription, but as Dr Sale stated, he could not comment about the practice of drug administration in East Timor at that particular time.
36. Mr Browne tended in evidence a copy of an article written by Hannan Benjamin, Felicity Smith and M. Adelmotwi which appeared in the Eastern Mediterranean Health Journal Volume 2, Issue 3 1996 entitled Drugs Dispensed With and Without a Prescription from Community Pharmacies in a Conurbation in Egypt. The article followed a study which was conducted for 25 pharmacies randomly selected from different areas of Alexandria, Egypt to gather information on all drugs dispensed from the pharmacy with and without a prescription during a six hour study period. The report concluded that the majority of drugs were dispensed without a prescription or advice from pharmacists and that drugs for which risks are considered high are in common use both with and without a prescription. The report also noted that some banned products continued to be marketed, prescribed and recommended by pharmacists and requested by clients. Included in this study were sedatives, hypnotics, anti-depressants and tranquilisers.
37. Dr Marquis’ report to Dr R Walters of 19 July 2000, following an assessment of Mr Bird’s neck remarked that Mr Bird had then told him that he had suffered neck pain and was unable to move after being injured during unarmed combat training and that he was treated with panadeine forte and diazepam. The symptoms eased a little over a week and he had approximately three months of physiotherapy which made no difference to his injury. Dr Marquis remarked that Mr Bird tended to hold his neck rigidly with little formal neck movement on examination and that all movements were painful. He assessed Mr Bird as having a rye neck with an element of somatization secondary to his depressed mood.
38. Mr Bird’s neck injury was subsequently examined and treated by Mr Liddell who in November 2001 recommended selective diagnostic facet blocks. The continuing problems with Mr Bird’s neck suggest that the injury was more serious than initially thought. The Tribunal accepts Mr Bird’s evidence that he was administered dialgesics and panadeine forte to help the pain which was ongoing during his period of service in East Timor and for which treatment was sought upon his return to Tasmania.
Incident Involving the Child
39. As part of his reduced duties following his neck injury, Mr Bird participated as a driver of one of the six wheeled Land Rovers in convoys to different parts of East Timor, usually to deliver supplies.
40. Mr Bird described a particular convoy trip from Dili to Baukau and return in April 2000. He was accompanied in the Land Rover, a mechanic’s vehicle, by Michael Engels and together they shared the driving. Both Mr Engels and Mr Bird had previously attended physiotherapy sessions together. Whilst Mr Bird was still performing light duties, Michael Engels had been discharged from light duties and had resumed his work as a mechanic.
41. It was Mr Bird’s estimate that the trip from Dili to Baukau of about ninety kilometres took them approximately four hours and they spent the night at Baukau. He said that they had worked until 2.00 am on one of the other trucks to replace an oil seal. Most of the mechanical work was undertaken by Michael Engels with Mr Bird assisting. At around 2.00 am they joined three Thai soldiers and consumed a bottle of whisky. Mr Bird said that at approximately 3.00 am he took some panadeine forte and diazepam and retired to bed. They arose at 6.00 am, checked the trucks, made preparations and left in the convoy between 7.00 and 8.00 am. He recalls that there were fifteen vehicles in the convoy, mainly MAC trucks as well as unimogs. As Mr Bird and Mr Engels were driving a mechanics vehicle, they were placed last in the convoy so that any vehicle that broke down could be attended to by them.
42. As Mr Bird was drowsy from the affects of the medication and alcohol he slept whilst Mr Engels drove for approximately two or three hours. Mr Bird recalled that Mr Engels went to sleep listening to his walkman through a set of ear phones. Mr Engels confirmed in his evidence that he did listen to his walkman on convoy trips. It was Mr Bird’s evidence that the convoy stopped just outside the town of Manatuto for a break and left again at approximately 1.00 pm. Mr Bird described the road as consisting of gravel, approximately nine feet in width with no kerbing and dense vegetation on both sides.
43. Mr Bird said that it was common practice for the soldiers to throw food and supplies to the locals as they drove through their towns despite contrary orders. Children in particular used to rush out to meet the convoys. Mr Bird said that he had slowed to about thirty kilometres and dropped back approximately seventy metres from the vehicle in front and then sped up in order to round a bend in the road. As he came through the bend at approximately thirty to forty kilometres per hour he saw a small child on the road. He estimates that he was then travelling at about fifty kilometres per hour and although he swerved to avoid hitting the child and braked, the bull bar of the truck hit the child just off centre on the passenger side. He believed that the child was hit on the bridge of his nose. Mr Bird described how upon seeing the child at a distance of about ten to fifteen metres he steered to the right but was unable to go far for fear of ending up in the paddy fields. He was concerned about being isolated from the convoy because of intelligence reports of militia in the area. He resisted braking knowing that his six tonne vehicle would have skidded. He expected the child to move out of the way of the vehicle, however the child did not move and Mr Bird particularly recalls the child’s eyes staring directly at him.
44. Mr Bird maintained that he took action to avoid hitting the child whilst at the same time tried to prevent the vehicle ending up in the paddy field. He said that he would have missed hitting the child had he taken just two steps to his right. However as Mr Bird said of the child “He just seemed stunned. It’s like when you go spot-lighting, it’s just – the animals just stop and he must have had so much fear that he stopped”.
45. Mr Bird was asked why he did not stop following the incident or attempt to make contact with any of the other vehicles in the convoy. He explained that there were no radio or satellite phones in the vehicles and that the usual line of communication was to flash your headlights to the vehicle in front. However he was by then some seventy or eighty metres behind the vehicle immediately in front of his. Mr Bird claimed that due to the militia presence in the area they were under orders never to stop. Mr Bird said that he was unaware of the Interfet document issued by Colonel PJ Cosgrove entitled Notification of Changed Traffic Conditions which directed drivers to stop, render assistance and exchange details with other parties in the event of a serious accident resulting in death or injury. Mr Bird said that he continued to drive and saw the child in the side mirror lying half in the bush and half on the road. He decided that he would deal with the matter when he returned and started to cry as he sped up to reconnect with the rest of the convoy.
46. When Mr Bird returned to Camel Barracks he checked the vehicle. He found that the bull bar was not damaged but contained splatters of blood which he wiped off with a rag. He then awoke Mr Engels but before he had a chance to discuss the matter in the debrief, he was told to open the bar as they were late returning.
47. Although he had intended to report the incident on his return he was concerned about the attendant publicity and the risk of being charged with manslaughter. After consuming approximately six glasses of spirits and as there was no damage to the truck, he decided not to report the incident and in his words “I really just hoped that it would all go away. I was quite distressed, and also wondering whether I would face civil or criminal charges as a result of the incident”.
48. Mr Bird maintained that Mr Engels had slept the entire time and was unaware of the incident. It was put to Mr Bird during cross-examination by Mr Morgan that he had invented the incident and that it had simply not occurred. Mr Bird acknowledged that there had been no report of an East Timorese child being either injured or killed around the relevant time and conceded that the death of a child by an Australian solider would have occasioned serious repercussions. Mr Morgan suggested that if Mr Bird had been intoxicated and under the influence of medication as he contended, this would have been apparent to his superiors prior to them leaving Baukau. Mr Bird said in response that members of the Transport Division would have been checking the vehicles whilst the rest of the convoy were being briefed in relation to the journey. His briefing was held separately and mainly consisted of directional information ie the trip back to Dili via Manatuto, where and for how long they would stop, etc and little else. Mr Bird said they were operating under Rule 7 which meant that normal rules and regulations did not apply and common sense prevails. The usual requirement that military police are positioned at the front and rear of the convoy was not Mr Bird’s experience. Rather military police on motor bikes would travel between the front and the rear of the convoy.
49. Witnesses before the Tribunal agreed that Mr Bird’s demeanour and behaviour markedly changed around this time. It was Mr Bird’s evidence that there were two occasions when officers lodged a complaint alleging that he was either on drugs or taking too much alcohol. The complaints were dropped because of lack of evidence.
50. Mr Bird states that he first reported the incident informally to the workshop sergeant, Martin Guinan. This occurred approximately four weeks after the incident when he was drinking late one night in the bar when many of the other soldiers had already gone to bed. Sergeant Guinan commented that he had noticed a change in Mr Bird and asked him what were his problems. Mr Bird maintained that he had not initially suggested to Sergeant Guinan that he had hit or injured the child but put it on the basis of a hypothetical incident and enquired as to the army’s likely reaction. Mr Bird said that he commenced his conversation with the words “hypothetically speaking” but that Sergeant Guinan had later asked whether he was involved and he had said that he was. Sergeant Guinan had told him that he should report the incident.
51. Martin Guinan told the Tribunal that he had counselled Mr Bird on a number of occasions in East Timor. It was Mr Guinan’s evidence that on approximately 17 April he engaged in an informal counselling session with Mr Bird. For some time he had been concerned about Mr Bird’s behaviour and had received reports that he was consuming alcohol whilst on duty. On occasions he had sent people to look for Mr Bird. He recalled an occasion when he found Mr Bird asleep whilst on duty. Mr Bird’s explanation was that this was due to the medication the MO had prescribed for his shoulder and neck injury.
52. Mr Guinan referred to an entry in his log book dated Sunday, 16 April when he spoke to craftsman Bird concerning his behaviour over a barbeque cooking incident. He had not recorded the informal counselling session as he said it was more in the form of a hypothetical discussion. His recollection of the conversation was that Mr Bird had said to him “what if this type of thing happened”, I said, “what are you talking about”, he said, “if someone hit a child” and I said “didn’t stop?”, and I said “well an incident report should have been carried out”.
53. As stated above, it was Mr Bird’s evidence that his co-driver Michael Engel was asleep at the time of the accident involving the child. In his written statement dated 21 September 2002, and tendered in evidence, Mr Engel stated:
“I am unaware of the alleged motor vehicle incident involving Mark Bird striking a child with the bull bar of the vehicle he was driving”.
In a much later statement of 13 July 2005 Mr Engel stated:
“I met Mark Bird while serving in East Timor. We both went to the physiotherapist together, he for a sore neck and myself for a shoulder. I have been asked today by Tony Walsh of the Department of Veterans’ Affairs Special Investigations Group about my knowledge of an accident involving Mark hitting a child while he was driving and I was a passenger. I am able to say that no such incident happened when I was with Mark. Mr Walsh showed me a decision from the Veterans’ Review Board dated 4 July 2002. After reading that document I am able to say that this event did not happen. From my memory I am aware of only occasion when I was in a convoy with Mark and it was not around that time period being around the second week of April.
I can categorically say that on no occasion did I have drinks with Mark and Thai soldiers at Baukau. The only occasion I stayed overnight at that camp was in February 2000 with Corporal Irving.
There was never an occasion, with Mark, when I worked until 2.00 in the morning, at Baukau, carrying out repairs to a vehicle ....”
54. Although Mr Engel had said in his statement that from his memory he was aware only one occasion when he was in a convoy with Mark, he said in his evidence to the Tribunal that after further thought he did not believe that he was with him on a convoy at all. Mr Engel’s evidence regarding his convoy trips in East Timor was in the Tribunal’s view, deliberately confusing. He said that the convoy trips were popular as it was an opportunity to get out of the workshop. He agreed that he volunteered for convoy trips.
55. It was put to Mr Engel that on an earlier occasion he had told Mr Tony Walsh, of the Department of Veterans’ Affairs, that there was only one occasion when he was in a convoy with Mr Bird but that it was not around the second week of April 2000. Mr Browne asked him why he had changed his mind and he said that after further looking into it and checking his diary and photographs, he could not find anything to support his having gone on a convoy with Mr Bird. He agreed however, that whilst he may have taken photographs on each convoy that he undertook, the photographs were of scenery, vehicles and things of general interest and not necessarily of his companions. But he said he had taken photographs of Sergeant Guinan and Corporal Irving who accompanied him on two convoys and of Jason, an electrician with whom he went on a convoy to Balibo. This evidence suggests that there were at least three convoy trips to Baukau whereas Mr Engel had said that he only recalled two trips to Baukau. In response to questions from the Tribunal Mr Engel subsequently said he had been on two convoys to Baukau and one to Balibo as well as a recovery job. On reflection he thought it may have been one recovery and one convoy to Baukau. Mr Engel said that he was becoming confused about trips that occurred a long time ago.
56. The respondent called evidence from Barry Hampson, a senior investigator with the Department of Veterans’ Affairs. Mr Hampson was deployed to East Timor in January 2000 as a warrant officer to 33 Military Police Section, a subsection of the 9th Force Support Battalion, the same unit to which Mr Bird was attached.
57. One of Mr Hampson’s duties in East Timor was to organise and task supply convoys from Dili to Baukau and return. Mr Hampson referred to several statements in Mr Bird’s evidence and commented that they either did not correspond with his recollection or were contrary to then existing military practice. For instance it was Mr Hampson’s evidence that it was standard procedure that each convoy would operate with three military police vehicles, two at the front of the convoy and one at the rear. Military police members would thus have been aware of any alleged incident by Mr Bird involving the running over of a child but no such incident was ever reported, Mr Hampson said. He further estimated the width of the road between Dili and Baukau as at least four metres wide rather than nine feet contended by Mr Bird. To the best of his recollection soldiers were in contact with each other via the UHF CB radios fitted to the vehicles. Mr Hampson said that he would have expected that if a soldier had been prescribed valium he would have been removed from all driving duties. Mr Hampson further contended that there was an enforced policy of only two cans of alcohol per person per night and that the only way a solider could have exceeded this limit was to be given another man’s issue for that day. In his opinion, it would not have been possible to have had access to more than four cans in any one day.
58. However there is evidence before the Tribunal that there were occasions when this limit was obviously exceeded. Captain Newman was reprimanded for intoxication on one occasion. There is also evidence that Mr Engel well and truly exceeded this limit when he was put to bed by some of his fellow soldiers in an intoxicated state. He later vomited and said that he had no recollection of the event. Mr Hampson said that he was unaware of this event having occurred. Mr Hampson disputed that it would not have been possible for Mr Bird to keep two sets of bar records as the consumption of alcohol was strictly policed. However the Tribunal has cause to doubt this evidence in light of the above occurrences. There was also the evidence of Mr Guinan that he had observed Mr Bird in an intoxicated state on more than one occasion and had cause to reprimand him. All of this evidence corroborates Mr Bird’s own evidence that he had ready access to alcohol being in charge of the bar following his shoulder injury and did on occasions drink alcohol to excess.
59. Whilst it was Mr Hampson’s evidence that it was standard procedure that each convoy would operate with military police vehicles at the front and rear line of the convoy, the Tribunal accepts that this did not always occur. This evidence was corroborated by Mr Engel who said in response to a question by Mr Browne as to whether MPs were at the rear of the convoy that “the GMV generally brought up the rear of the convoy”. Mr Guinan did not recall that military police vehicles were stationed at the rear of the convoy.
60. Mr Hampson said that it is against standing orders which require a minimum of six hours unbroken sleep for drivers to work until 2.00 am in the morning and be awoken at 5.30 am to get their vehicles for another driving trip. Mr Hampson also contended that a driver would not be allowed to drive if he had been drinking within the preceding eight hours.
61. One aspect of Mr Hampson’s duties was to ensure that the medical staff maintained database records. He was satisfied that a complete set of Mr Bird’s medical records had been tended in evidence. It was his evidence that the RAP sick parade records correlated with the SAP sick parade records and would also include soldiers consultations at the UN hospital, including physiotherapy attendances. When the tendered records were put to Mr Hampson he agreed that there was no RAP daily sick parade attendance record for the 27 February when an out-patient clinical record revealed that Mr Bird had been treated by Dr Arthur and placed on four days restricted duty. The RAP sheets contained records for 1, 2 and 3 March, however there were no correlating out-patient clinical records for the 2 and 3 March. On 3 April Mr Bird was prescribed diazepam by Dr Harding-Smith but there is no correlating RAP attendance record for that date nor for the 15 April when the RAP notes record a review of his neck injury. On 15 May Mr Bird was placed on restricted duty for fourteen days by Dr Chambers, however the RAP sheets have no record of this attendance. No details of Mr Bird’s physiotherapy attendances were tendered in evidence despite other documented references to him having been referred for and having received physiotherapy treatment.
62. Whilst Mr Hampson contended that all medical attendances would have been recorded and maintained on the file, it is clear that this did not always occur. The Tribunal has accordingly no reason to doubt Mr Bird’s evidence regarding his attendances and treatment. Mr Hampson stated that for a military member to be on panadeine forte and diazepam, it would have been prescribed by a military doctor. He conceded during cross-examination however that he had no first hand knowledge of the processes for the prescription of drugs in East Timor at that time.
63. Whilst Mr Hampson stated that he was issued with an advance heavy vehicle operation accreditation, he conceded that he had no relevant qualifications or experience with respect to several of the statements made by him in his written proof of evidence. For instance, the type of material used for the bull bars of the vehicles or consequential damage if a teenage person had been hit in the centre or to the side of the bull bar. Mr Hampson said that he had no knowledge of the practice of soldiers throwing out food to local villagers as they had been told not to do so. The Tribunal however heard evidence from at least two witnesses that this was common practice.
64. Mr Hampson’s evidence related expected military practice as distinct from what actually occurred in East Timor during a time of active military service. Whilst standing orders may have required certain procedures, the Tribunal accepts that the prevailing circumstances meant that they were not always followed and indeed the evidence from several witnesses supports such findings as outlined above.
65. Similarly the evidence of Dr Robert Walters as to standard practices for the prescribing of medication and procedures when he was in East Timor for five weeks between May and June 2002 is of little assistance. Dr Walters agreed that he was unaware of the practices of the Egyptian doctors in the prescribing of medication during their time in East Timor as this preceded his arrival. Mr Bird’s evidence of having received medication from the Egyptian doctors without prescription is consistent with the report alluding to such practices tendered by Mr Browne and referred to above. In the absence of specific evidence that this practice did not occur, the Tribunal accepts the evidence of Mr Bird in this respect.
66. One person who had first hand military experience of life in East Timor at the relevant time was Glenn Morse who was deployed to East Timor between October 1999 and 20 February 2000 as a transport NCO. His duties were to cart fresh food and water around East Timor by way of convoy travel.
67. Mr Morse first met Mr Bird in Hobart when they were both members of 2FSB prior to their postings to East Timor. They spent some time together in Dili in February 2000 when Mr Bird first arrived and just prior to Mr Morse’s departure. Mr Morse’s last contact with Mr Bird was when he met him in a pub in 2003. He commented that he had “changed a lot. He seemed then to be drinking excessively. He seemed sad and was difficult to talk to. This is very different to the person I knew in Hobart prior to the East Timor deployment, and to the person who I knew from East Timor”. It was Mr Morse’s evidence that during his period of service in East Timor there was no Australian Military Police support for the convoys. He recalls that his commander, Captain Brick was attempting to obtain military police support from army headquarters of 10FSB in Dili. Mr Morse stated that loaded weapons always accompanied them during the convoys.
68. Mr Morse said that he was unaware of the INTERFET instructions issued by Colonel Cosgrove and confirmed Mr Bird’s evidence that drivers were under instructions not to stop unless it was deemed safe to do so. He recalled that a motor bike escort would travel up and down the convoy line to check for incidents. It was Mr Morse’s evidence that whilst some of the trucks had civilian UHF radios they were unreliable due to the rugged terrain and lack of maintenance. Any satellite phones were only usable when a vehicle was stopped, he said. It was Mr Morse’s evidence that it was not uncommon for soldiers to work long hours repairing trucks and then resume driving with minimal sleep, this was part of the environment of East Timor.
69. Mr Morse confirmed that there was a policy of only two alcoholic cans per night per person whilst not on duty but that the policy was often breached. He said that:
“Some soldiers would drink as much as they could and some would get drunk. I know of soldiers who purchased tickets from non-drinking soldiers and were able to drink that alcohol, and abuse the system”.
The person in charge of the bar had reasonably liberal access to alcohol.
I know that Thai soldiers were stationed at Baukau. I never drank alcohol with those soldiers, when I visited Baukau; but I heard about other soldiers who drank alcohol at nights with Thai soldiers at Baukau”.
70. Mr Morse confirmed Mr Bird’s evidence in relation to the type of vehicles used in the convoys and the particular strength of the bull bars attached to the vehicles.
Rifle Incident
71. The other incident that Dr Ratcliff asserted could have given rise Mr Bird’s PTSD condition occurred when he was threatened by a fellow soldier with a loaded rifle who was being assisted to bed after becoming intoxicated.
72. It was Mr Bird’s evidence that the incident occurred in late May or early June towards the end of their deployment. Captain Newman had given Mr Bird permission to allow the soldiers to drink whatever they chose but to make sure that things did not get out of hand. During the course of the evening Mr Bird said that he noticed that Michael Engel was consuming his drinks at a fast pace and becoming intoxicated. He approached John Burke and suggested that they take Michael to bed as he was getting a bit out of control. Mr Engel insisted that there was nothing wrong with him and that he was fine. Mr Bird and some fellow soldiers persisted and managed to take Mr Engel up the staircase to his tent. In the course of putting Mr Engel to bed, Mr Bird enquired as to the whereabouts of his rifle. Mr Engel responded that it was downstairs. Mr Bird then said that he would lock it away until the morning whereupon Mr Engel pulled his rifle from underneath his bed, waved it in front of Mr Bird and threatened to blow his head off. Mr Burke grabbed the rifle from Mr Engel, disarmed it and locked it up until the following morning. Mr Bird understood from others that Mr Engel had subsequently later vomited downstairs, had a cold shower and was either taken or went back to bed.
73. Mr Bird reported that he felt in extreme danger and wet his pants in the process. He felt that the incident should be reported and asked Mr Burke for a statement. Mr Bird did not proceed with any action on the advice of another soldier.
74. In Mr Engel’s written proof of evidence he referred to an incident involving a soldier who had pointed a rifle at Camel Barracks. He said that he thought the solider was fined but was not sure whether “they” were sent back to Australia.
75. During the course of his cross-examination by Mr Browne, Mr Engel said that he had learned the day following the incident that he had been taken to bed after becoming intoxicated and that his rifle had been taken from him. He had been told later that he had also pointed the rifle at another soldier. He confirmed that he usually slept with his rifle next to his bed. He also discovered that he had been sick the night before and that another soldier reluctantly cleaned it up. As well as John Burke being present he understood that Corporal Gregson and Corporal Lodesman were also there at the time. He was not told whether Mr Bird was one of the soldiers present.
76. The Tribunal concludes that Mr Engel’s evidence in relation this incident was deliberately misleading. Mr Engel’s written statement of 21 September 2002 was written in response to Mr Bird’s contention that he had been threatened by another soldier with a loaded rifle. Mr Bird had not then identified the soldier concerned. At the time of preparing his statement, Mr Engel was aware of the incident in which he had been involved and that his rifle had been taken from him because as he suggested, he was “not holding it appropriately”. When asked whether he was told that he had pointed the rifle at another soldier he responded “this has possibly come up later on but at the time no I wasn’t told that”.
77. Mr Engel suggested that he had no recollection of the incident and had learned of its circumstances from Mr Burke and others. Yet in his proof of evidence he stated that the incident he referred to did not involve Mark Bird. He was suggesting that this was a different incident that occurred at Camel Barracks and that the incident involving himself occurred at Spanner Barracks. It is not clear whether Mr Bird had referred to the incident as having occurred at Camel Barracks however, Mr Engel’s evidence would have been more convincing had he also referred to the incident in which he was involved. It may be that he was concerned about possible ramifications.
78. The Tribunal regards much of Mr Engel’s evidence with scepticism and accordingly does not place much weight on his denial of having accompanied Mr Bird on convoys in East Timor. His evidence contrasts with Mr Bird’s evidence that Mr Engel accompanied him on more than one occasion and that he was his co-driver on the convoy when the incident involving the accident with the child occurred.
79. The Tribunal accepts that Mr Engel’s initial failure to identify himself as the soldier who had pointed the loaded rifle at Mr Bird and his denial of having accompanied Mr Bird on convoy trips may have been related to his fear of possible repercussions and potential prosecution. This was the reason given by John Burke in his statement of 21 September 2002 for not naming those involved. As he said “the guy concerned probably doesn’t even remember it”. Mr Burke said that the incident was not reported, having occurred during the last days of duty. Mr Burke believed that had it been reported, the soldier concerned would probably have been jailed. He recalled another incident when a soldier was sent back to Australia for firing a rifle.
80. Mr Burke said that he did not “remember Birdie being there, when the gun was pointed, although he could have been as this all occurred in the dark”. He went on to state that when Mr Bird had asked him for a letter regarding the incident, he agreed that he would help him but was “not prepared to cause consequences to others and ruin their reputations over this minor matter”.
81. In Mr Burke’s account of the incident he confirmed that he and three or four other people accompanied the intoxicated soldier up the stairs. He did not recollect that the soldier was carrying his rifle but recalls that it was produced when they got upstairs and that he waved it around in front of the others “in a gesturing manner, which we took seriously, and promptly disarmed him”. Whilst Mr Burke said that he had no memory of Mr Bird being present during this incident, he did not dispute that he may have been there, he said that he did not remember. This is curious when he had said in his statement of 21 September 2002 that he would write a letter in relation to the “drunken solder” incident if it helped Mr Bird with his claims. The Tribunal can only surmise that Mr Burke was reluctant to name any of the people involved. He said that he was not sure whether any prosecutions could still be laid and thought that the soldier involved may have been imprisoned had the incident been reported.
82. In summary there is nothing inconsistent between Mr Burke’s account of this incident and Mr Bird’s evidence that is of any consequence. Whilst Mr Burke originally thought that the soldier had brought his rifle up from downstairs, his first recollection of having seen the rifle was when it was waved in front of him. He said that it was possible that the rifle had been produced from the soldier’s bedding. Mr Burke said that the soldier was “waving it around provokingly” and speaking dribble. He confirmed that the rifle would definitely have been loaded and that the soldier involved was a craftsman who is a friend of his.
83. In Mr Guinan’s statement of 15 April 2002 he said that he had counselled Mr Bird on approximately 17 April 2000 in relation to the vehicle accident and the rifle incident. In his oral evidence before the Tribunal he described the process as informal and whilst he had no written record of his conversation with Mr Bird, he maintained his recollection that his conversation about the rifle incident took place on the same occasion that Mr Bird had told him about the accident involving the child. Mr Guinan also recalled counselling Mr Bird towards the end of his deployment in East Timor about this behavioural problems after a report that he had been consuming alcohol.
84. The Tribunal accepts Mr Guinan’s evidence that Mr Bird had spoken to him about the incident involving the rifle and expects that this discussion occurred during the counselling session towards the end of Mr Bird’s deployment rather than at the earlier time in April. It is reasonable to expect that Mr Guinan’s memory of such conversations may not be truly accurate particularly given that he was being asked to recollect a conversation almost two years after its occurrence and the circumstances in which it took place. It was Mr Guinan’s evidence that Mr Bird referred to the rifle incident in response to Mr Guinan’s question regarding his behavioural problems. He recalls that he mentioned two soldiers who were involved namely, Mr Engel and Mr Burke. Mr Guinan said that he had enquired of another soldier as to the result of the incident and had been told that it had been cleared up and dealt with in-house.
Findings
85. It was Mr Morgan’s submission that the Tribunal should have no difficulty in finding that the driving incident as described by Mr Bird involving the knocking over of the child did not occur and nor was Mr Bird involved in the so-called rifle incident. Mr Morgan pointed to various inconsistencies in the evidence presented to the Tribunal. Some of those inconsistencies have been addressed above and the remaining ones of consequence can in the Tribunal’s view, be explained as follows.
86. Dr Ratcliff’s report states that Mr Bird had been accompanied by an RAAF officer on the drive from Manatuto but Mr Bird maintains that his co-driver was Mr Engel. The Tribunal accepts that mistakes can occur in the recording of medical histories which may not always coincide with the patient’s account of the incident to the doctor. In response to a question from Mr Morgan as to who accompanied him on the road trips, Mr Bird responded, Michael Guinan, two RAAF guys and a naval guy. It is possible that there was some confusion in the account given to Dr Ratcliff or that a statement of Mr Bird was taken out of context with respect to the co-driver on this particular occasion. It is noted that not only did Mr Bird tell Dr Sale but several other persons that he was accompanied on the drive by Mr Engel.
87. There are also differing accounts of what Mr Bird observed at the time of the incident. In his evidence to the Tribunal he maintained that there was no-one else present apart from the child just prior to or after the accident whereas in his written statement he said that he saw other people going towards the child who was lying on the side of the road. Dr Ratcliff in his report of 1 March 2005 recounted how Mr Bird had seen the child in the rear-vision mirror lying on the ground “and people coming out to help”. Dr Athey in his written report of 4 May 2005 recorded that Mr Bird “saw the child strike the bullbar of his vehicle, felt a thump which he believed was the child going under his wheels but was told he must not stop”. Mr Bird disputed that the child had been knocked under the wheels of the vehicle.
88. Whilst the Tribunal accepts these inconsistencies, they are not in the Tribunal’s view sufficiently significant to cause the Tribunal to disbelieve Mr Bird’s general account of the incident. The inconsistencies were put to Mr Bird in cross-examination. On various occasions he believed that the doctors may have misunderstood or misquoted his accounts of the accident. The Tribunal finds his responses largely credible. Mr Bird’s oral evidence to the Tribunal was consistent. He did not attempt to change or retract any parts of his evidence but was instead confused about the inconsistencies.
89. At times Mr Bird’s evidence was difficult to follow. He informed the Tribunal that he is currently taking 900mg per day of Seroquel for anxiety, 60mg of ms conten a morphine sulphate for his neck and shoulder pain as well as the anti-inflammatory medication, Brufen.
90. It was submitted that Mr Bird’s account of the time of the incident also varied on occasions. For instance he had said to the Veterans’ Review Board at an earlier hearing that the incident had occurred at about 5.30 pm but his evidence to the Tribunal was that it occurred at around 2.00 pm, an hour or so after leaving Manatuto. Mr Guinan said that he had been told by Mr Bird that the incident happened late in the afternoon. Again in the Tribunal’s view this discrepancy is not significant and does not undermine the Tribunal’s acceptance of Mr Bird’s evidence that the incident did in fact occur generally in the manner as he described to the Tribunal. Mr Guinan’s understanding that the accident happened late in the afternoon may be because of the description of the weather conditions at the time including the lack of light, drizzle, etc. It is unlikely that Mr Guinan would have been concerned with the detail as to when exactly the incident occurred. The detail of the evidence given to the VRB could not be tested by this Tribunal. The Tribunal is also not troubled by the evidence that there was some confusion as to the sex of the child which may have been difficult to discern at the time.
“For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) should be taken to be guilty of serious and wilful misconduct”.
119. Whilst there is certainly evidence including that from Mr Bird himself, that there were times during the period of his service in East Timor that he was under the influence of alcohol and or drugs that were not legally prescribed such as to constitute serious and wilful misconduct within the meaning of sub-section 4(13), the provisions of sub-section 14(3) require that the injury be actually caused by that serious and wilful misconduct.
120. There is no evidence before the Tribunal that Mr Bird was under the influence of either drugs or alcohol at the time of the accident. This contrasts with the evidence before the Tribunal’s in Elvin and Comcare [1998] AATA 276 and McPherson and Department of Defence [1998] AATA 455 where there was expert evidence as to the effects of alcohol. In Elvin’s case there was documented evidence of a BAC reading for the applicant which was taken approximately two hours after the accident. Whilst the accuracy of the reading was questioned at the hearing, the Tribunal was not satisfied that the reading was inaccurate. In its determination as to whether the injury was caused by the applicant’s conduct, the Tribunal stated that it required evidence to satisfy it that the consequences of the BAC reading meant that the applicant’s ability to function was likely to be impaired.
121. In the case of McPherson the Tribunal relied upon the expert evidence as to the affects of alcohol and concluded that it was more likely that the applicant was only moderately affected by alcohol at the relevant time.
122. As the Tribunal stated in paragraph 193 in Elvin’s case:
“That conduct must, however, be a direct and proximate cause and not simply the cause of the cause or the mere occasion of the injury (Australian Casualty Co Ltd v Frederico (1986) 66 ALR 99, Gibbs CJ, Wilson, Brennan, Deanne and Dawson JJ, per Gibbs CJ at 103). It must be “... such a cause that the injury would not have happened without it and was an actual result of it ...” (Richards v Faulls Pty Ltd [1971] WAR 129, Hale, Burt and Lavan JJ). Regard must be had to the chain of causation in determining that cause”.
123. Senior Member Allan commented in Robertson and CSR Shipping [2001] AATA 325:
“The evidence amounted to suspicion and conjecture that the applicant was affected by alcohol at the time of the accident and the Tribunal could not make an affirmative finding on the material before it that he was under the influence of alcohol”.
124. In the current case there is no expert evidence as to the likely effects of the applicant’s consumption of alcohol and drugs some ten hours prior to the accident involving the child and the Tribunal determines that it is more likely than not that he was not so affected. It is thus not necessary for the Tribunal to consider whether the injury resulted in serious and permanent impairment pursuant to the provisions of sub-section (3).
125. Mr Morgan argued that Mr Bird’s injury did not arise out of his employment because he had “voluntarily and unreasonably submitted to an abnormal risk of injury” in accordance with the provisions of sub-section 6(3) of the Act. The Tribunal rejects this argument on the basis that Mr Bird did not drive until some ten hours had elapsed after his consumption of alcohol and drugs and there is no evidence that he was impaired as a result of this consumption at the time of the accident. Nor is there evidence to suggest that the “injury”, namely the condition of post traumatic stress disorder was sustained because of any voluntary or unreasonable action on behalf of the applicant. Further, sub-section 6(3)(a) requires that the injury be sustained at a “place” and whether this would extend to the location of the accident is not clear.
126. The Tribunal considered the term “voluntarily and unreasonably submitted to an abnormal risk of injury” for the purposes of s6(3) in its decision Re Grime and Telstra (1994) 20 AAR 43 and concluded that the employee must fully appreciate the risk which is being undertaken. In that case the employee had driven his car to work in the morning with a blood alcohol level of 0.136% after drinking approximately sixteen light beers the previous night. The Tribunal found that the employee was not aware that he was still substantially affected by alcohol and accordingly had not voluntarily submitted to an abnormal risk of injury within the meaning of the section.
127. It was asserted on the basis of Dr Sale’s evidence, that had Mr Bird immediately reported the accident as he was required to do, he would not have suffered his injury. In other words the injury came about as a result of his failure to report the accident. Adopting the reasoning in Re Grime, it is inconceivable that the Tribunal would find that Mr Bird could have appreciated that his failing to report the accident would have resulted in him suffering a post traumatic stress disorder.
Decision
128. It is the Tribunal’s finding that the respondent is liable to pay compensation for the applicant’s post traumatic stress disorder in accordance with the provisions of s14 of the Act, the condition amounting to an “injury” within the meaning of the Act suffered by the applicant during his period of service in East Timor and resulting in incapacity for work.
129. The decision of the Tribunal is that the decision under review is set aside and this matter be remitted to the respondent with the following directions:
1. That the respondent is liable pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1998 to pay compensation to the applicant for his post traumatic stress disorder arising from his service in East Timor between 4 February 2000 and 15 June 2000.
2. In the absence of any application for costs being made within fourteen days, the order of the Tribunal is that the respondent pay the applicant’s costs in these proceedings, such costs may include:
a) witness expenses at the prescribed rate
b) all reasonable and proper disbursements
c) all professional costs including counsels fees allowable under the Federal Court Rules on a party/party basis
3. Costs may be agreed between the parties
4. In the absence of agreement between the parties as to the amount of costs, the costs are to be taxed by the Registrar of the Administrative Appeals Tribunal.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 6, 7, 8, 9, 10, 14, 15, 16 March 2006, 1, 2, 8, 9, 13 June 2006
Date of Decision 29 September 2006
Counsel for the Applicant Mr R Browne
Solicitor for the Applicant Fitzgerald & Browne
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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