Booth and Military Rehabilitation and Compensation Commission (Compensation) - [2022] AATA 4183

Booth and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 4183 (2 December 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/3085
Re:Philip Booth
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 December 2022
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the Commonwealth is liable to pay compensation to Mr Booth under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) for post-traumatic stress disorder (with associated anxiety and depression) and secondary alcohol dependency as diagnosed by Dr Fellows-Smith.
..............[Sgd]..........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for compensation – whether Applicant suffered an “injury” which is compensable under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) – psychological injury – post-traumatic stress disorder, anxiety/ depression, alcohol abuse (secondary alcohol dependency) – whether Applicant’s ailments contributed to, to a material degree, by his employment in the Defence Force – bastardisation and physical assaults at Kapooka during recruit training – sexual assault at Watsonia – Commonwealth liable to pay compensation – Reviewable Decision set aside and substituted
EVIDENCE – Respondent questioning reliability of Applicant’s evidence due to incorrect information about his service in medical records – expert medical evidence – where Applicant’s treating psychiatrist advocating for him – consideration of advantages and disadvantages of treating practitioner compared to independent medical examiner –Recommendations made by Tribunal that information provided to treatment providers by veterans during mental health treatment should not be used to question reliability or credibility
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5B(2), 7(4)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) ss 2(1), 4, 4(1), 5, 5(1), 5A(1)(a), 5B, 5B(1), 5B(1)(a) 5B(2), 5B(3), 7(4), 14, 14(1)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) - Schedule 1, Part 1, item 1, Schedule 1, Part 1, item 2(1), Schedule 1, Part 1, item 2(2), Schedule 1, Part 2, item 41(2)
CASES
Comcare v Mooi (1996) 69 FCR 439, 442; [1996] FCA 508
Comcare v Sahu-Khan [2007] FCA 15
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
De Tarle v Comcare [2022] FCA 175
Gordon and Military Rehabilitation and Compensation Commission [2021] AATA 1706
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2017] FCAFC 143
Taylor and Military Rehabilitation and Compensation Commission [2005] AATA 207
Vo and Comcare [2005] AATA 773
SECONDARY MATERIALS
Administrative Appeals Tribunal, Persons Giving Expert and Opinion Evidence Guideline (30 June 2015)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th ed, text revision, 2022)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 December 2022
background

Mr Booth enlisted in the Australian Army as a musician when he was 17 years old on 24 July 1990.
He underwent training at 1 Recruit Training Battalion at Kapooka (Kapooka) from 24 July 1990 until 22 October 1990 and then Simpson Barracks (formerly known as Watsonia) until his discharge on 9 August 1991.
Mr Booth is appealing a decision of the Respondent made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRC Act) dated 16 May 2018 (T50/221-227). I will refer to this as the Reviewable Decision.
Mr Booth made a claim for compensation on 21 March 2017 (T9) which included the conditions of “substance abuse” (for alcohol), post-traumatic stress disorder (PTSD) and “anxiety depression”. I will refer to these collectively as the Claimed Conditions.
However, the Reviewable Decision affirmed a determination dated 30 August 2017 (T20/111-115) which denied liability for the Claimed Conditions. When making the Reviewable Decision, a delegate of the Respondent was not satisfied that there was a causal link between the Claimed Conditions and Mr Booth’s defence service (T20/115).
Mr Booth claims that he developed the Claimed Conditions because of numerous events that occurred during his employment in the Defence Force. The events he relies upon include: an event on 10 October 1990 where he witnessed a grenade simulator explode and burn a Sergeant’s hands; witnessing a staged bayonet fight which he believed to be real; a sexual assault committed against him at Watsonia in 1990 or 1991; bastardisation and assaults at Kapooka and exposure to alleged simulated suicides.
Issues
The issue that I must determine, broadly speaking, is whether Mr Booth suffered an “injury” (or injuries) that the Commonwealth is liable to pay compensation for under s 14 of the DRC Act. This involves a consideration of:
(a)whether Mr Booth suffered or suffers from an ailment or ailments, specifically PTSD, substance use disorder, and/or anxiety/depression; and
(b)if so, whether Mr Booth’s ailment or ailments were contributed to, to material degree by his employment in the Defence Force.
To determine these issues, it will be necessary for me to consider whether the events that Mr Booth said were causative of any of these conditions occurred.
The hearing and the evidence
The hearing took place over four days. Mr Booth was represented by an RSLWA Advocate, Mr Endrey. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers.
Witnesses
Mr Booth gave evidence on the first day of the hearing, 24 February 2022.
The Respondent called Sergeant V, who was the platoon sergeant at the time that Mr Booth was at Kapooka, and whose hands were burnt in an incident I describe below under the heading, “Grenade simulator (“whizbang”) incident”. Sergeant V gave evidence on the second day of the hearing, 25 February 2022. So did Lieutenant Colonel E, who was a recruit at Kapooka at the same time as Mr Booth.
On the third day of the hearing, 3 March 2022, the Applicant called his treating psychiatrist, Dr James Fellows-Smith to give evidence.
On the final day of the hearing, 15 March 2022, the Respondent called consultant forensic psychiatrist Dr Lawrence Terace to give evidence.
Evidence
I admitted the following documents into evidence during the hearing:
(a)Joint tender bundle, labelled TB1-TB12, comprising 132 pages (Exhibit 1);
(b)Section 37 T-documents, labelled T1-T58, comprising 305 pages (Exhibit 2);
(c)Documents labelled ST1-ST10, volume 1 of the supplementary T-documents and ST30, volume 8 of the supplementary T-documents (Exhibit 3);
(d)Statement of Mr Booth (undated), filed with the Tribunal on 27 August 2020 (Exhibit 4);
(e)Two emails from Mr Booth to the Respondent's legal representative, dated 22 April 2020 with photographs attached (Exhibit 5); and
(f)Progress notes dated 22 December 2016 and 23 December 2016 at ST21/1377-1378, CCMHS Clinical Psychology referral form, undated at ST23/1500 and Trauma Recovery Program Assessment dated 4 June 2017 found at ST20/1193-1198 (Exhibit 6).
Written closing submissions
On 15 March 2022, I made directions for written closing submissions to be filed. The time for filing these directions was extended on 26 April 2022.
Written closing submissions were received on 4 April 2022 for Mr Booth and 2 May 2022 for the Respondent.
Further submissions to confirm relevant law
Other than referring to the name of the DRC Act, the Reviewable Decision did not refer to relevant legislative provisions.
In addition, the parties made minimal reference to the legal framework.
On 8 November 2022, I sent a summary of what I understood the issues and the relevant legislative provisions and caselaw to be, to the parties to confirm their agreement. I gave the parties the opportunity to make brief submissions if they wanted to clarify any corrections or additions to the summary. Mr Burgess provided further submissions for the Respondent on 24 November 2022. On the same date, Mr Endrey confirmed Mr Booth’s agreement to the Respondent’s submissions.
overview of legislation
Liability to pay compensation
Subsection 14(1) of the DRC Act provides that:
Subject to this Part, the Commonwealth 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.
An “employee” is defined in s 5 of the DRC Act which provides:
(1) In this Act:
employee means a member of the Defence Force.
(2)For the purposes of this Act, a person who is a member of the Defence Force is taken to be employed by the Commonwealth, and the person’s employment is taken to be constituted by the person’s performance of duties as such a member of the Defence Force.
(Notes omitted.)
Disease
Subsection 5A(1)(a) of the DRC Act defines “injury” to include “a disease suffered by an employee”.
A “disease” is defined in s 5B(1)(a) of the DRC Act to include “an ailment suffered by an employee”.
An “ailment” is defined in s 4(1) of the DRC Act as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Parallel authorities concerning the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) have tended to regard psychological injuries as falling within the statutory category of disease. However, a mental injury can be an “injury (other than a disease)” or a “disease”. The category will “depend on the nature and incidents of the psychological change” (Prain v Comcare [2017] FCAFC 143 at [74]).
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May) at [49]-[53] the High Court provided guidance about the questions that the decision-maker, in this case the Tribunal, must ask to determine the category:
… the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis, ... accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
If the answer to both those questions is “Yes”, there is a “disease” within par (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.
If there is not a “disease” within par (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act.
If there be an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered “Yes”, there is an “injury (other than a disease)” within par (b) of the definition of “injury” in s 4(1) of the Act. In some circumstances, if the answer is “No”, it may be necessary to ask whether the case is one involving aggravation of an injury. …
(Footnotes omitted.)
The definition of an “ailment” in s 4(1) was discussed by Drummond J in Comcare v Mooi (1996) 69 FCR 439 at [442]; [1996] FCA 508 (Mooi):
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word — ‘a morbid affection of the body or mind; indisposition: a slight ailment’ (The Macquarie Dictionary) — that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
In Vo and Comcare [2005] AATA 773 (Vo) Senior Member Constance (who became Deputy President Constance) and Member Miller discussed the meaning of an “ailment”, at [54]:
The definition of ‘ailment’ is very broad ... The terms ‘ailment’ and ‘morbid condition’ both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of ‘disease’ in the Act. In context the words ‘disorder’ and ‘defect’ should be interpreted accordingly. The definition of ‘ailment’ in section 4 is somewhat circular as it includes the word ‘ailment’ within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of ‘ailment’ includes ‘a morbid affection of the body or mind’ and ‘morbid’ includes ‘affected by, proceeding from, or characteristic of disease.’
Based on the material before me and the steps identified in May, I find that Mr Booth’s Claimed Conditions meet the definition of an “ailment”, which can include a “morbid affection of the body or mind” and encompasses a range of mental illnesses (Mooi; Vo). I therefore agree with the parties view that “disease” is the relevant category.
Applicable legislative provisions
The DRC Act commenced on 12 October 2017 (s 2(1) of the DRC Act; Schedule 1, Part 1, item 1 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) (2017 Act)). However, Mr Booth’s Claimed Conditions pre-date that commencement date.
As was explained by Deputy President McDermott in Gordon and Military Rehabilitation and Compensation Commission [2021] AATA 1706 (Gordon) at [2]-[7], when a claim pre-dates the commencement of the DRC Act, the applicable legislation is the version of the SRC Act that would have applied at that time.
This is provided for in Schedule 1, Part 1, item 2(1) and (2) of the 2017 Act which state:
(1)This item applies if, in administering the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 (the DRCA) in relation to a claim, that Act, or an instrument made under that Act, applies in relation to a time before this Part commences.
(2)The version of the DRCA, or the instrument, that applies in relation to the time is taken to be the same as the version of the Safety, Rehabilitation and Compensation Act 1988 (the SRCA), or the relevant instrument made under the SRCA, that would have applied in relation to the time if this Schedule had not been enacted (taking into account any transitional, application and saving provisions in any Act or instrument that amended the SRCA or the instrument before that time).
Except for the test of employment contribution (which I discuss under the next sub-heading), the key provisions relevant to this application are the same or substantially similar in the DRC Act and the applicable version (discussed below) of the SRC Act. Specifically, the definitions of “injury”, “disease”, “ailment” and s 7(4) which concerns the onset date of the disease, are the same as those in the applicable version of the SRC Act. Subsection 14(1) of the DRC Act concerning the Commonwealth’s liability to pay compensation is the same, although in the SRC Act “Comcare” is stated instead of “the Commonwealth”. The definition of “employee” differs slightly but is consistent.
Test of employment contribution
A notable difference between the current version of the DRC Act and the earlier version of the SRC Act that is applicable, is the test of employment contribution to an injury.
In the current version of the DRC Act, the test is whether the ailment suffered by the employee “was contributed to, to a significant degree, by the employee’s employment by the Commonwealth” (s 5B(1) of the DRC Act) (my emphasis).
This test was incorporated into the SRC Act by Schedule 1, Part 1, item 14 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (2007 Act). Schedule 1, Part 2, item 41(2) provides that this definition of disease applies to ailments suffered on or after the day the 2007 Act received Royal Assent. The 2007 Act received royal assent on 12 April 2007 and consequently commenced on 13 April 2007.
However, prior to 13 April 2007 the applicable version of the legislation provided that the relevant test for contribution with respect to a “disease” (in s 4(1) of the SRC Act) was whether the ailment was contributed to, to a material degree, by the employee’s employment by the Commonwealth.
The amendment of the legislation to replace “material degree” with “significant degree” was summarised by Deputy President McDermott in Gordon at [7]:
Prior to 12* April 2007, section 4(1) of the SRC Act defined “disease”, relevantly, as follows:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
This is in contrast to the current SRC Act and DRC Act which define disease in section 5B(1) as an ailment or an aggravation “that was contributed to, to a significant degree, by the employee’s employment”. In this application, the material contribution test applies.
(*for the reasons explained above, the correct commencement date is 13 April 2007.)
In a material degree
The phrase, “in a material degree” in s 4(1) of the SRC Act was considered in Comcare v Sahu-Khan [2007] FCA 15 at [16]:
… probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.
Date of onset
Schedule 1, Part 2, item 41(2) of the 2007 Act provides that “an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the [SRC Act]”. Subsection 7(4) of the SRC Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of 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.

In para [51] below, I set out the details of Mr Booth’s claims for compensation. These included that he first noticed symptoms of substance abuse (specifically, alcohol) on 1 January 1994, but that the date of the incident or event was 5 May 1990. He also stated in his compensation claim that he first noticed symptoms of depression/ anxiety and PTSD on 1 January 1993.
However, instead of the date when a person first experienced symptoms being determinative, s 7(4) of the SRC Act states that the date when the employee first sought medical treatment, or the date when the disease or aggravation first resulted in incapacity, is taken to be the date of onset.
For the reasons I have outlined below, I have accepted the diagnosis of Dr Fellows-Smith that Mr Booth has PTSD (with associated anxiety and depression) and secondary alcohol dependency.
With respect to secondary alcohol dependency, the exact date of onset is unclear. However, there is substantial evidence showing that Mr Booth sought treatment prior to 13 April 2007, and therefore that the material degree test (instead of the significant degree test) is applicable. For example, hospital notes from 1998 summarised by Dr Terace in his supplementary report dated 16 September 2019 refer to Mr Booth being admitted to a hospital emergency department after being found intoxicated by police and attempting carbon monoxide poisoning. The records summarised by Dr Terace also show other subsequent hospital presentations around that time, that were related to alcohol abuse, intoxication, self-harm risk and alcohol dependence (TB10/101, paras [77]-[78]).
With respect to determining the date of onset of PTSD, medical documents produced under summons that were summarised by Dr Terace in his report dated 14 April 2018, state that Mr Booth’s general practitioner referred him to a psychologist in 1992, but that Mr Booth did not attend (TB5/41). In his supplementary report Dr Terace stated, again with reference to medical records produced under summons, that Mr Booth had been involuntarily admitted and detained in a mental hospital in 1998 for psychiatric assessment (TB10/117, paras [229]-[230]). In his evidence at the hearing Dr Fellows-Smith referred to an admission to the same mental hospital after a suicide attempt which he thought occurred in 1996 (transcript/105). These records show that Mr Booth sought mental health treatment before 13 April 2007. I also note Dr Fellows-Smith’s report dated 7 February 2018 where Dr Fellows-Smith stated that the time of onset of Mr Booth’s PTSD was “on or around 1990” (T43/181).
In summary, the dates of onset of Mr Booth’s PTSD (with associated anxiety and depression) and secondary alcohol dependency were prior to 13 April 2007. Therefore, the applicable test of contribution is the material degree test from the version of the SRC Act that was in force prior to 13 April 2007.
Eggshell psyche
The relevance of pre-existing factors or sensitivities of an employee was considered in De Tarle v Comcare [2022] FCA 175 (De Tarle). Abraham J accepted an employee could have an “eggshell psyche” that may make an applicant more susceptible to an injury. However, that susceptibility will not, in every case, meet the required test for workplace contribution (De Tarle at [75]-[76]).
The Respondent submitted that De Tarle can be distinguished from Mr Booth’s application because it concerned the considerations in s 5B(2) of the SRC Act which were not in that Act prior to 13 April 2007. The Respondent further submitted that a pre-existing vulnerability to developing a condition may nevertheless be relevant to my determination of whether Mr Booth’s employment in the military contributed to the development or aggravation of his conditions to a material degree.
My view is that even though the considerations in s 5B(2) were not expressly stated in the SRC Act prior to 13 April 2007, they do nevertheless articulate the type of matters that a decision-maker should consider when determining the degree of employment contribution. A pre-existing vulnerability is a good example of a consideration relevant to a consideration of the degree to which employment contributed to an ailment. Other considerations articulated in s 5B(2) of the SRC Act are also potentially relevant to a consideration of the degree of employment contribution (whether they are articulated in the legislation or not) such as the nature of the tasks performed by the employee and any non-employment activities that may have contributed to the ailment. I have therefore applied these considerations below to the extent that I regard them as relevant to this application.
Mr booth’s WRITTEN STATEMENTS
I will first outline the evidence given by Mr Booth in his written statements, before turning to the evidence from the hearing.
Mr Booth’s claim for compensation
By way of overview, in his claim for compensation on 21 March 2017 (T9), Mr Booth provided the following details about the events he thought had caused the Claimed Conditions:
(a)He stated that he first noticed symptoms of substance abuse on 1 January 1994, but that the date of the incident or event was 5 May 1990. When asked how he believed the events were contributed to by his service, Mr Booth answered, “The incidents in question were a direct form of harassment. I believe the actions were unofficially sanctioned, if not requested by a superior officer” (T9/44).
(b)Mr Booth further stated that he first noticed symptoms of PTSD on 1 January 1993. Regarding how he believed his service caused the injury, Mr Booth stated (T9/45):
There were several events that caused this condition. In chronological order. I was physically assaulted by my fellow recruits during basic training. One assault caused a fracture in my foot, which was not treated properly, although I was placed on restricted duties. I was almost shot in the lines, when a fellow recruit was clearing his weapon in the lines. How a live round made it back from the range I do not know, as this should be practically impossible. I witnessed my platoon sergeant suffer sever burns whilst attempting to dispose of an undetonated grenade simulator. One of these two incidents perforated my ear drum(right side) I reported symptoms to platoon staff and the RAP [Regimental Aid Post] several times. This condition went untreated and undiagnosed. Whilst in iet I suffered multiple acts of aggression, and bastardisation from staff and fellow soldiers, and was basically forced out of the service.
(All quotes as original.)
(c)Mr Booth also made a claim for “anxiety depression”, stating that he first noticed symptoms on 1 January 1993. As to how he believed his service caused the injury, Mr Booth stated: “Repeated exposure to extreme stress, systematic bastardisation, loss of career repeated humiliation and physical injury” (T9/48).
2017 statutory declarations
On 30 April 2017, Mr Booth made four brief statutory declarations of between one and four paragraphs in length (T14). He described:
(a)Being subject “to extreme bullying, bastardisation and was the victim of several physical attacks” from others in his platoon. He described being assaulted in basic training because he was “‘not up to standard’ and was a hinderance to my platoon” which caused him to “live in fear”. He said that one of these incidents resulted in his being placed on restricted duties but that the cause of his injuries was not investigated. He also referred to his room being “totaly [sic] destroyed – and items stolen” and that he was told to “‘take it as a warning’”.
(b)Witnessing his “platoon sergeant illegally handel [sic] a grenade simulator which caused him sever [sic] burns as it detonated in his hand. I was 1 metre away. I believe this caused perforation in my right eardrum. I reported to the rap 10 times, but was not examined properly. I was accused of mallingering [sic].”
(c)Being the victim of a sexual assault at Watsonia in 1990 or 1991. He said that two days later the perpetrator also assaulted a “navy person” who did report it. Mr Booth stated that he did not report the incident “due to shame” and that he “was [ostracised] and had no one to talk to”. He believed that had been “drugged at the base boozer” (the bar at the military base) where he should not have been because he was underage. His evidence was that he “awoke while the assault was in progress” and that he suffered “ptsd and nightmares regarding this incident”.
(d)Another incident a few weeks after the sexual assault where he “was in close proximity to a weapons discharge in the lines” and that he was unsure about the intentions of the soldier who discharged the weapon because the soldier had previously “cleared his weapon whilst pointing it at [Mr Booth]” on several prior occasions.
(e)Of his overall experiences in the Army, Mr Booth stated:
As a result of several issues I left the army with severe emotional and mental issues. I have no doubt that these caused depression, anxiety and PTSD. I became dependent on alcohol, and over the last 15 years have battled this, whilst it destroyed my life – leaving me homeless, and in a mental ward … several times
2018 email
In an email dated 18 December 2018 (TB6), Mr Booth provided further details about his treatment in the Army. He indicated that it was distressing to him, and that it was having a negative impact on his mental health to keep providing information about what happened to him:
(a)He described being physically assaulted by two of his fellow recruits, B and D, as a warning to improve his performance because he was letting down the rest of the platoon. He further described being put on “light duties” due to an injury to his foot caused by another assault perpetrated by B. He said that after that incident he was afraid to report anything out of fear of more violence.
(b)He stated that he was “disliked and harassed and bullied” because he was a musician in the Army and described this treatment as “relentless and occurred every day”.
(c)Mr Booth gave further details about the sexual assault, stating that he believed he was drugged and that he left the base boozer after feeling unwell. He described waking up during the assault and “after a brief struggle and altercation I was able to fend off this attack”. He referred to the perpetrator attacking someone else the following night, which he believed was reported.
(d)Mr Booth referred to the incident regarding the grenade explosion. He stated that “the Platoon Sergeant illegally handled [an] unexploded Ordnance resulting in him receiving severe injuries”. He described himself as being “directly adjacent” when the incident happened. He stated that he believed this incident caused him PTSD, tinnitus, anxiety, balance issues and vertigo.
(e)He also described the incident where a fellow recruit “was dry firing their rifle while pointing it at me”. He believed the recruit had accidentally removed a live round from the range which had discharged while pointed in his general direction. He described this incident as having a “profound” psychological effect on him, and believes it contributed to his PTSD, anxiety and depression.
(f)Mr Booth referred to a suicide and being “intentionally paraded past the area” as a form of intimidation and as a “teaching aid”.
2020 statements
In another statement filed with the Tribunal on 27 August 2020 (E4), Mr Booth provided further details about the incident involving the exploding grenade simulator. The relevant part of his statement reads:
I remember Sergeant V being some metres away, possibly 10, with his back to me at this time. I observed him making what appeared to be a motioning action, indicating for me to come over. I do not know if he was aware of my presence, or if he was just motioning in general. Bear in mind that I was a mere recruit at that time and the Platoon Sergeant was the ultimate authority; I had had no interaction with Sergeant V to this point. My immediate reaction was to start towards the Sergeant who was in a slight downward position from where I was (we had camped overnight on a small hill). When I got to about 2 metres from him I heard a loud explosion. There was a flash and a lot of smoke. I remember Sergeant V turning around. He did make eye contact with me. His hair and some of his clothing was still on fire. His face was covered in soot. I recalled thinking that he resembled a cartoon character, such as Wile E. Coyote in the Road Runner series with an Acme bomb blowing up in his hands.
Sergeant V held his arms out, palms upwards which I could clearly see were very badly burnt, with obvious flesh injuries. He made a verbal statement. I am unable to recall the exact words but the statement was to the effect of that was not how it was supposed to be done or is done. I could tell the Sergeant was in shock and in a lot of distress. At this point I became aware of other people on scene, I do not specifically remember who they were. All of the Recruits were moved away from the area. We were told not to discuss the incident. I did not see Sergeant V leave the area. We were moved from the area as a platoon.
I do not know the outcome of any investigations. I am not aware of any recruits being questioned or giving statements. Although this incident occurred in the early morning, it was already light and visibility was clear. The incident was in no way associated with probing exercises which had already been completed by this time. I was severely shocked by the incident and I can vividly recall that it was as if I had tunnel vision of it happening.
In an email dated 22 April 2020 (E5), Mr Booth attached a photo of the platoon dated October 1990 where Sergeant V’s hands were in bandages. In this email, Mr Booth said he was between one and two metres from the blast and that he was ordered not to tell anyone about the incident.
The evidence at the hearing
I found Mr Booth to be a credible witness who gave evidence to the best of his recollection. He did not attempt to embellish his evidence and acknowledged that he had difficulty recalling precise details of events. It was clear to me that the process of giving statements over several years leading up to these proceedings and giving evidence at these proceedings was genuinely difficult and distressing to Mr Booth. It was particularly difficult for him to discuss the sexual assault he experienced at Watsonia.
I have examined the evidence given by Mr Booth, Sergeant V and Lieutenant Colonel E thematically below, and I have made interim findings under each heading. Those findings will later be qualified and informed by the medical evidence of Dr Terace and Dr Fellows-Smith, which I discuss later.
Bastardisation and assaults
At the hearing Mr Booth described being ostracised at Kapooka where he was the only musician. Even though Watsonia was a school for musicians, one of his fellow recruits who was aware of his treatment at Kapooka had transferred across to Watsonia with him but was in a different platoon, and so Mr Booth’s problems continued there. Mr Booth gave the following evidence at the hearing (transcript/18):
MR ENDREY: But why do you think you were ostracised during recruit training?
APPLICANT: Ah – recruit training at Kapooka is because I was physically weaker and I was able to do the tasks. I had no prep time. I did my audition and service time with the hit military district band and got told nothing about what I was getting myself in for. Nothing about the physical demands of basic training. And when I got to basic training I wasn't ready. I wasn't ready by a long shot. And so that perception of me being physically weaker, slower, maybe not as intelligent as the other people around me and the ways of how to shoot rifles and start fires and things like that – it just followed me. It followed me everywhere. And I joined to be a musician. I didn't join to kill people or watch people get burned.
He described a beating before the sixth week of training (transcript/12):
There was a specific injury that I received during a bedroom beating which I have documented and made a statement about and that was to my ankle. Basically, it was twisted back in such a manner that it distended the joint. I was unable to – definitely unable to run. I was unable to walk. So I was placed on restricted duties for a while. It wasn't x-rayed. I actually made two separate visits to the RAP in relation to that because I had to get what was called a 'chip' in those days just to not be forced to run because for a couple of days I was forced to run. It was excruciating. Then I was put on the restricted duties, but the actual injury itself occurred on an instant where I was dragged from my bed at night via two recruits, B and D, and it was a punishment beating because I wasn't performing up to standard that was expected.
In addition to the beating where his ankle was injured, Mr Booth described there being two other serious assaults against him (transcript/13):
… there was a shower incident that was also serious and that led to quite a few visits to the RAP and you will see in the medical records – nausea, headaches, vomiting – those kinds of symptoms I can recognise as being stress-related now. There was also an issue with my head – after the head stomp episode and that's documented. That was outside the shower. I developed headache. It was persistent and it just wouldn't go away. But I wasn't really treated in any respect for that. It's just like – take some Panadol. You had to be careful when you went to the RAP when I was in basic training because if you went too many times that could be seen as malingering and that was severely frowned upon.
Mr Booth did not report the assaults. His evidence was that he thought that if he complained, his situation would become worse. He thought that if he performed better and took it “on the chin” that the assaults would stop (transcript/13).
His evidence is corroborated to an extent by medical records of his visits to the base medical centre (T58). For example, on 10 August 1990 he attended with right “ankle pain” and “swelling viable / bruise” and was recorded as being fit for restricted duty with “no run endurance”. On 13 August 1990 he attended the medical centre complaining of pain in the top of his left foot. Bruising and swelling, “fell over on run” and “? Soft tissue injury” were noted and he was placed on restricted duties. He was examined again on 16 August 1990, with the records showing an improvement of slight pain to “medial aspect of ankle” and “member says ankle feels fine” (T58/293-295).
The medical records further show that Mr Booth attended the medical centre on 21 August 1990 with “flu symptoms” including headache, sore throat, earache, and nausea, on 22 August 1990 with flu symptoms as well as vomiting and diarrhoea and on 11 September 1990 with a cough, sore joints, vomiting, sore throat with phlegm, and tender glands. He was reviewed on 14 September 1990 with the entry noting “flu symptoms” including headache and nausea. On 28 November 1990 (although the handwriting of the month is unclear) with “constant headaches – taken asprin with nil effect”. On 30 January 1991, he attended with diarrhoea, nausea and vomiting (T58/288-297). Mr Booth said that he was accused of malingering several times after these visits (transcript/13).
Sergeant V was asked at the hearing about the treatment of recruits. His evidence was that, as a platoon Sergeant “my recruits were treated very well” (transcript/87). Sergeant V stated that he was aware of “a few” claims of bastardisation in 1988 and 1989, but that those responsible were removed from training and that the new “Lieutenant Colonel L stopped everything in 1990” (transcript/88).
Lieutenant Colonel E was a recruit in the same platoon at the same time as Mr Booth. He gave a written statement in these proceedings dated 21 September 2020 (TB12/132) and gave evidence at the hearing. Lieutenant Colonel E barely remembered Mr Booth, but remembered he was a musician. He did not observe any ill treatment of Mr Booth, but stated, “I can’t say that it did or didn’t happen but I didn’t witness any of it” (transcript/97).

I accept Mr Booth’s evidence that, as a young musician, he was ostracised at Kapooka, which continued at Watsonia. My impression was that when he was in the Army, Mr Booth was a young person (only 17 and 18 years of age), who was sensitive and impressionable. He wanted to play music and was not prepared for the rigours of recruit training at Kapooka. I accept his evidence that he was subject to physical assaults from two other recruits at Kapooka which he did not report for fear it would make his situation worse. As I discussed above, one of these assaults is corroborated, to some extent, by medical records where Mr Booth sought treatment for his ankle.
Although Sergeant V was of the opinion no mistreatment of recruits occurred, he acknowledged some prior mistreatment of recruits in 1988 and 1989. Although Lieutenant Colonel E did not see any ill treatment of Mr Booth, he himself acknowledged that he could not say whether it did or did not happen. I also note that evidence of violent and abusive behaviour at Kapooka in 1991 has previously been accepted by the Tribunal in a decision that Mr Endrey referred me to. That decision, which lends support to the plausibility of Mr Booth’s claims, was Taylor and Military Rehabilitation and Compensation Commission [2005] AATA 207 (Taylor). In Taylor, the Tribunal found that the Respondent was liable to pay compensation to Mr Taylor for PTSD. Mr Taylor was subjected to assaults, threats, abuse, and intimidation during his 13 weeks of training at Kapooka which commenced in August 1991.
Staged suicides at Kapooka
Mr Booth believed that he had seen a dead body in the urinal in his platoon barracks building and a dead body hanging from a tree. At the hearing Mr Booth confirmed that he had told consultant psychiatrist Dr Yue Chong (Olivia) Lee and Dr Fellows-Smith that he had seen these bodies, which he believed to be from suicides, when he was at Kapooka. In her report dated 31 July 2017 Dr Lee recorded that Mr Booth reported that “a person committed suicide” and that the recruits “were made to run past the body for exercise” (T18/88). During cross-examination, Mr Booth confirmed that this was the incident where he had seen a body hanging in a tree (transcript/46).
Mr Booth also agreed that he gave the following information to Dr Fellows-Smith who noted it in his report dated 7 February 2018, under the heading, “Suicide deaths at Kapooka 1990” (T43/177):
… there had been five suicide deaths of junior recruits at Kapooka during the thirteen week period of his basic training when he was seventeen years old of which two of the decedents he witnessed. He stated that only a few weeks into basic training a recruit from a different platoon had taken hs [sic] life by slashing his wrists and to this day Mr Booth ponders why they were ordered to use the staff stairs to get down to the parade ground as they were in close proximity to the latrines where the soldier had died and also in sight. He stated that he saw the body of the decedent lying in the trough of the urinal having exsanguinated and died a short time before that. His response to seeing the body was feelings of intense fear, helplessness and horror. In his own words “We never use those stairs beforehand and we never used those stairs after that. I started to think that they wanted us to see what had happened to the recruit and it put the fear of God into me because I did not want to end up with nowhere to turn like the soldier who had taken his life.”
Mr Booth stated that approximately eight weeks later he saw a soldier who had hung himself in a tree on a hill that leads away from the lines. He stated that the body was approximately twenty metres from his position and he could not recognise who the soldier was. In his own words “He was up there for a good two to three hours before they retrieved him. My mother had rung me and she was very concerned because the high number of suicides at Kapooka had been reported in the national papers. This was the fifth of the suicides and I think the suicide was being investigated and so he hadn’t been cut down.”
The Department of Defence provided confirmation that one suicide was recorded as having occurred at Kapooka on 3 April 1990 shortly before Mr Booth commenced his training there. However, there were no suicides while Mr Booth was at Kapooka (ST3/314).
Mr Booth’s evidence at the hearing was that he believed that he had seen these two bodies. He believed that the suicides had occurred until approximately a year ago when he learnt that there were no suicides at Kapooka during his time there (transcript/14). He thought he heard that there were five suicides from a television news report (transcript/53). Mr Booth still believes that he saw something but that the suicides may have been staged as some sort of training exercise (transcript/14 and 50). He denied that he fabricated seeing these bodies to advance his claim which had previously been rejected before he spoke to Dr Lee and Dr Fellows-Smith about those events (transcript/56).
Lieutenant Colonel E did not have any recollection of seeing a staged suicide in a bathroom or a body hanging from a tree. He could not recall if there was any discussion amongst the recruits about suicides and could not recall if there were any suicides during the time he was at Kapooka (transcript/93-94).
Sergeant V’s evidence was that there were no suicides when Mr Booth was at Kapooka. However, he was aware there was a suicide earlier on in the year where one of the recruits hung himself from a tree. He denied any knowledge of staged suicides, describing this as “just ridiculous” and that “we weren’t there to terrify recruits, we were there to train them” (transcript/84).
The evidence concerning whether there were staged suicides is probably the more difficult evidence that I must consider in this application. There is no corroborating evidence from Sergeant V and Lieutenant Colonel E, who had no recollection of seeing any staged suicides. Mr Booth has, however, been consistent in his evidence about what he saw. I accept that Mr Booth believed that he saw real bodies until recently when he learnt there were no suicides during his time at Kapooka. I believe that Mr Booth was being truthful, and I do not think he fabricated this evidence. It is, however, somewhat uncertain as to what Mr Booth actually saw, and specifically whether he saw deliberately staged suicides.
Staged bayonet fight
Mr Booth also stated that he witnessed a staged fight between Sergeant V and another corporal at Kapooka where it appeared that Sergeant V was stabbed with a bayonet. Mr Booth believed at the time that Sergeant V had actually been stabbed until Sergeant V got back off the ground. Mr Booth described his state of mind after witnessing these incidents (transcript/14-15):
At that time I was living in such a heightened state of stress that it was just – it was like putting extra water in a bucket that's already full. So processing anything like that it was very, very difficult for me. All I can tell you at the time is how I felt which I felt terrified. I was terrified of everything that happened but those specific events were extra terrifying. The suicides – and I call them that because for me up until a year ago they actually happened. I saw that as an end result of what can happen to you at Kapooka. That's the warning – that's the warning I listened to. Whether you did it yourself or whether you didn't do it yourself. I mean these are questions I asked myself. Did that person kill themselves or did someone do something to them? It was a very confusing, mental time for me.
Sergeant V was asked about staged fights by Mr Endrey. Sergeant V volunteered that he had a bayonet fight with Corporal M where Corporal M came running out of the bush with a rifle to attack him, resulting in them having a “mock [bayonet] fight”. He described it as a “skit” and a “play act” and “part of the humour to … [help the recruits] learn their lesson but it wasn’t anything to scare them” (transcript/88-89). Sergeant V was of the view that the recruits should have been able to see scabbards were on the bayonets. Although Sergeant V said, “there was nothing violent in it at all” (transcript/90), with respect, that somewhat contradicts his evidence of a staged fight where the corporal was attacking the Sergeant.
Lieutenant Colonel E recalled this bayonet fight. He was aware that other recruits could have regarded it as a realistic exercise and described it as “aggressive”. However, Lieutenant Colonel E found it difficult to understand that perspective because he thought it looked “hammed up”. Lieutenant Colonel E described the staged fight as follows (transcript/95):
I believe it was a staged fight that ended with a parry and someone falling to the ground or being on the ground but a thrust of a bayonet. The recruits were some way off. It certainly wasn’t in the immediate vicinity. It was some, I would say, 20 to 30 plus metres away from the main body of recruits who were observing. But, as quickly as that end action happened, there was no sort of continuation of the role play lying on the ground and pretending to put innards back in or anything like that. It was over pretty quickly.
The staged bayonet fight occurred, as confirmed by Mr Booth, Sergeant V and Lieutenant Colonel E. Although Sergeant V stated that it was meant to be a humorous learning experience, I note from Lieutenant Colonel E’s evidence that the recruits were “20 to 30 plus metres away” and that there was an element of aggression to the fight, with Corporal M running out of the bush charging at Sergeant V. From such a distance, it is entirely plausible that Mr Booth, already in a heightened state of stress from the bastardisation he was experiencing, may have thought it was a real fight. I accept Mr Booth’s evidence regarding his reaction to this event.
Grenade simulator (“whizbang”) incident
Mr Booth also gave evidence at the hearing about the grenade simulator (“whizbang”) incident, also referred to as an unexploded ordnance. In summary, his evidence was that he was at Kapooka in the bush undertaking training exercises. It was daylight. He left his assigned area, but could not recall why he did so, and crossed over to the other side of a hill. He said that he saw Sergeant V who had his back or his side facing Mr Booth. Mr Booth then stated (transcript/15-16):
Sergeant V began to turn around and at that point there there was an explosion and as he came full around I could see that he was on fire. I could still remember the – and that's how I know it was daylight. He was wearing like a – I don't know – a polyester maybe – over-jacket. We didn't have them. The team staff did. But it was melting on to his skin. I could see the skin coming away from his hands. I could see he was burnt on his face. There was black soot. His hair was smoking. Like it was – I hate to see it – it was almost cartoonish in its appearance. Just the way it looked and obviously I was in shock. (indistinct) he was in shock. I remember him trying to say something. I'm not really sure what it was but it might have been something along the lines of – that's not how you do that. Or something to that vein. I was probably about – somewhere between – let's say five and two metres. I wasn't close enough to reach out and touch him. I felt – it felt like he was aware of my presence but he didn't directly acknowledge me as a person. And from there, directly after that, I'm not really sure what happened. I do know other people came to his assistance because it was a loud noise. And I'm not sure where they came from or what direction. I can describe to you the location of where it happened quite well. But those directly after that point I don't have a really good recollection of how things unfolded. And it was to the point where I was pretty much aware of where I was supposed to be and we were waiting for him to be removed from the area. … directly after the incident we were told not to say anything as a group about that incident.
Mr Booth described having nightmares after the incident which were not always the same but involved fire and people’s faces changing. He described being “petrified”, that he “had no idea what to do” and that he “didn’t understand what [he] was seeing in front of [him]” (transcript/16).
Sergeant V gave evidence about this incident in a statement and at the hearing. In his statement (TB11/129-130), Sergeant V said he had a “vague recollection” of Mr Booth after reviewing the platoon photos. In his statement and in his evidence, Sergeant V said that his platoon was in the final stages of training, and they had been in the bush for two nights. He stated that it was early morning and that the recruits were showing signs of fatigue so he and the platoon commander decided he should let off a “whizbang to get the recruits up and moving”. He said that the whizbang “went off prematurely and gave me severe burns”. Sergeant V said that he scanned the area in front of him and around him to make sure no one was there. He explained what happened when the whizbang went off (transcript/83):
All I know is I let it go and it just went off, it was weird. It carried me backwards on the ground and when I got up I had all the skin hanging off my hand and my face was burning and I just raced up to the vehicle and checked in the mirror because, when I saw my hand, I was worried what my face was going to look like and that’s when the platoon commander came down to me and he vacated me into the hospital.
In his written statement Sergeant V stated: “The force of the explosion knocked me to the ground, burnt the back of both my hands and wrists (see pictures), it also burnt my face and the clothes I was wearing”. Sergeant V was hospitalised for several days after the incident and his hands took several months to heal (TB11/130).
Sergeant V said that after the incident he moved in the direction away from where the recruits were located, and he did not recall any recruit being in the direct vicinity. He further stated, “I was not made aware that any of my recruits had seen me directly after the incident (before I left the area).” When asked at the hearing he disagreed that Mr Booth could have been one or two metres away from him when the explosion went off, and he confirmed he did not think anyone was near him when the explosion went off (transcript/83). Under cross-examination by Mr Endrey, Sergeant V said that he could see and that his vision was not affected by the burns on his face (transcript/86).
Lieutenant Colonel E gave evidence that he was present during the phase of the field training when Sergeant V injured his hands. He did not see the incident, but later learnt that a whizbang had prematurely detonated, injuring Sergeant V’s hands. He thought it unlikely that, without specific direction, anyone would be freely moving around. He became aware of the seriousness of the injury close to graduation when he saw Sergeant V with his hands bandaged up (transcript/93 and 96).
Sergeant V also denied that it was an unexploded ordnance and that there was a process whereby the ordnance would need to have wooden framing placed around it and reported to headquarters so that a person with specialist training could explode it (transcript/84).
During cross-examination, Mr Booth was questioned about inconsistencies in his statements about how far he was from the explosion. His evidence was that he was not sure how far away he was but that he estimated somewhere between one and 10 metres. Mr Booth stated that “it’s hard to estimate distance in memory. But I was close enough to see the detail that I saw and that’s close” (transcript/62-63).
It was also put to Mr Booth under cross-examination that his recollection of the event differed from Sergeant V’s. Sergeant V had said that he did not see anyone else near him, and that Sergeant V had not burnt his palms as Mr Booth had claimed in his 27 August 2020 statement. Mr Booth’s evidence was that he did see the explosion and that he saw burns and skin but misjudged where the skin was hanging off from (transcript/69).
It is clear from Sergeant V’s evidence that he was seriously injured when the whizbang went off prematurely. He suffered burns, spent four days in hospital and took several months to heal. I accept Mr Booth’s evidence that he witnessed the incident. It is entirely plausible that he could have witnessed the incident without Sergeant V seeing him. Although he thought Sergeant V had burnt his palms when he did not, the burns injuries Mr Booth described he witnessed were largely consistent with those Sergeant V said he suffered. I accept Mr Booth’s explanation that he had difficulty precisely recalling the distance he was from Sergeant V. I do not think it material that Mr Booth thought the device was an unexploded ordnance. He nevertheless saw the explosion that caused Sergeant V serious injuries.
Sexual assault at Watsonia
Mr Booth also gave evidence about the sexual assault he experienced at Watsonia. He described having gone to the base boozer. He was unsure whether he drank too much or whether his drink was spiked. He had a vague recollection of leaving and did not really remember going to bed. He then described the assault (transcript/17-18):
But what I do remember when I woke up was there a corporal who was – and of course he was on top of me. He was attempting to perform a sexual act which I'm not really comfortable repeating. But I awoke – I became awake in bed. I went to sit up. I was slapped back down and I – I really didn't know what to do. I had a room mate. He wasn't in the room. I wasn't aware of that directly and immediately and I didn't know what was going on when I had woken up. It took me probably 10 or 15 seconds to sort of get a semblance of what was happening. And I pushed him off and he basically left the room. And I just – I just – I didn't really know where to go from there. I'd had incidences all through my (indistinct) army experience that was – if I reported it in some way it would have some negative impact on me.
Mr Booth’s evidence was that he believed the perpetrator of the assault assaulted another person, G, in a similar manner two days later, and then absconded the day after. He believes the perpetrator went to the United Kingdom and did not return to Australia (transcript/18). During cross-examination, Mr Booth acknowledged that G reported the incident and that as far as he was aware there were no negative consequences to G because of his reporting (transcript/70).
In the following exchange during cross-examination Mr Booth explained why he was fearful of reporting the incident, even during his treatment at the Hader Clinic in Queensland (a specialist addiction treatment facility for military veterans) (transcript/70-71):
MR BURGESS:         Notwithstanding that, you didn't report that the incident had happened to you, did you, when you were in the Army?
MR BOOTH:              No. No, I did not report it at all.
MR BURGESS:         Knowing that nothing had happened to G when he reported the incident, did you consider then reporting that the same thing had happened to you?
MR BOOTH:              No, not for a second.
MR BURGESS:         You didn't report that incident when you were interviewed and given therapy at the Hader Clinic, did you?
MR BOOTH:I don't like talking about this, full stop, at all. I barely even talk about it with my psychiatrist, it's really disturbing to me and it will continue to be disturbing to me and I find it very, very difficult to talk about. At the time, I didn't report it because I was afraid of consequences to me. G was very popular person and he was well liked, I didn't have that position. I was both embarrassed and ashamed and I continue to be and I continue to receive treatment for that. It's just something that I'm not comfortable with and I never will be.
MR BURGESS:         You did report, though, that you had been sexually assaulted as a child, that's the case?
MR BOOTH:Yes, that's different and the reason it's different is, that was resolved conflict. I wasn't (indistinct) a child like that and I didn't have a degree of what I perceived at the time to be responsibility for that. It was, I was a victim because I was a child. When you're a victim and you're an adult, it's a whole different thing and it's a whole level of that I'm still trying to unravel that it was an incapacitive state. It doesn't matter that I didn't do anything to deserve it or to ask for it, it just matters that it happened. And adult me was actually not as successful as protecting me as I thought he might be.
MR BURGESS:         Mr Booth, again, I would put to you that this didn't occur to you whilst you were in the Army?
MR BOOTH:No, it most certainly did, unfortunately. I wish you were right, I really wish you were right.

I accept that Mr Booth was sexually assaulted at Watsonia in the manner he described. I further accept that the assault was traumatic for him and that he has avoided discussing it if possible. I accept Mr Booth’s evidence that his childhood sexual abuse did not impact his life as much as the sexual assault at Watsonia as an adult did. However, I will also consider the medical evidence to make a more definitive finding about the impact of the sexual assault at Watsonia on Mr Booth’s Claimed Conditions.
Discharge from the Army
Regarding his discharge from the Army, Mr Booth’s evidence was that he was threatened by a regimental sergeant major to leave the Army, and that if he did not leave, the regimental sergeant major would find a way to make it happen (transcript/22). This prompted Mr Booth to write a letter dated 18 June 1991 in which he tendered his discharge (T57/251).
The letter is informative because, amongst other things, Mr Booth stated: “My understanding of the job and its requirements before enlisting are greatly different to those conditions which apply in reality”. And further: “My attitude towards the job and the standard of my work is not acceptable to my work mates, superiors or myself.”
Mr Booth’s evidence was that he was not more specific about his mistreatment because this was his opportunity to leave without having to serve another three years and that he wanted his resignation to be accepted (transcript/23).
I accept this evidence from Mr Booth. The wording of the letter and his explanation of wanting his resignation to be accepted is consistent with his evidence about his ill treatment in the Army. It is unsurprising that he wanted to be discharged from the Army as soon as possible.
Alcohol use history
Mr Booth also gave evidence about his alcohol use at the hearing. During his examination in chief, Mr Booth stated that he had used alcohol prior to joining the Army, describing himself as an “infrequent user”. He said that prior to joining the Army, alcohol had not interfered with his life in any way, and that there were no police charges or convictions prior to his joining the Army due to alcohol (transcript/11 and 75). Mr Booth had issues with the law after his discharge including numerous assaults and four breaches of a restraining order (transcript/22).
During cross-examination, Mr Booth was taken to a statement in Dr Terace’s report dated 16 September 2019 (TB10/103-104) where Dr Terace had reviewed over 500 pages of hospital notes. These included a note made by a clinical nurse specialist at Royal Perth Hospital concerning Mr Booth. Dr Terace summarised that Mr Booth was reported as “feeling he was neglected by his parents as they were working and stating that he was sexually abused by some brothers who lived up the road from him from the age of 6-12, that he struggled throughout his time at school as he always felt different and used to drink alcohol to feel normal” (TB10). Mr Booth’s evidence was that “it’s not correct at all” that he used alcohol to feel normal between the ages of six and 12. Mr Booth’s answer was (transcript/73):
I mean, it's not correct at all. I'm not even sure where that comes from and I've seen that before too. It's mentioned in a discharge report somewhere else as well. But I mean, I had the experiences with alcohol at a young age, because of my cultural background, my parents are from northern England and it's introduced fairly early. And I would probably go so far as to say that my childhood experiences with the alcohol weren't what every Australian child would have experienced. But I wouldn't put it down to a problem say of drinking or a dependency of any shape, form or fashion. So, I'm not really sure about that one.
Mr Booth was taken to another part of Dr Terace’s report where he summarised notes produced under summons from Dr Mary Piepers (TB10/107). Dr Piepers recorded that Mr Booth was sexually abused between the ages of five and 13, abused alcohol from age seven, that the Applicant’s parents got him drunk, and that he was smoking from age 11. Under cross-examination, Mr Booth described that record as being “all over the place” and “a hodge-podge of other stuff that's been repeated throughout my medical documents without much input from me” (transcript/73). When it was put to him that he was regularly drinking to the level of being intoxicated prior to joining the Army, Mr Booth’s evidence was (transcript/73):
No, that's not true. You don’t become proficient in four instruments in four years if you're spending most of your time drunk. I assure you that is not a method of successful practise and I was very proficient at that age on four different instruments. And I spent most of my time at a music school, like literally, most of my time with my friends at my music school. So, in relation to that, I don't know where that comes from, Mr Burgess. I don’t know which parts of what are repeated and copied and pasted. But the thing that you read in that statement there about me smoking from the age of year 11, that’s true. But the drinking part, not true and I didn’t have any mental (indistinct) issues when I enlisted in the Army at all, that I was aware of anyway.
Mr Booth disagreed that he got drunk at the age of six. He stated (transcript/74):
No, and I barely remember being six years old. I mean, let's put that into context. That's six years old, that's grade one. Does that make sense to me? No, it doesn't make sense to me. I will grant that I used alcohol throughout my adolescence, that's definitely something that occurred. I'm not trying to hide that and I would have – there have been instances where I drank too much, just like most of my generation at that time. But this is speaking towards my ability to function and I was highly functional at that age. And I was very motivated and I did very well in school in terms of high school. So, I'm not really sure where that comes from. I can't really explain that one.
I found Mr Booth’s evidence on this issue to be credible. As Mr Booth indicated, it would be unlikely that a six-year-old would engage in binge drinking. It is more likely that Mr Booth was introduced to alcohol at an early age, used alcohol as an adolescent which did not impact his ability to function (as evidenced by his becoming proficient in four instruments), and that it only became problematic during and after his time in the Army. These are my interim findings, and I will defer to the medical evidence before making a definitive finding about this issue.
Causation and impact
Mr Booth’s evidence was that he believed his Claimed Conditions were caused by his military service. He stated (transcript/11):
I believe all of my conditions are directly related to my military service. They weren't manifest before my military service and they were manifest after.
Mr Booth described the negative impact that his Claimed Conditions had had on his life (transcript/10-11):
… my problems started pretty much whilst in the army. Continued when I came out of the army. And just got progressively worse. The end result for me was due to two years of homelessness which I actually don’t remember very well. But probably that's a good thing for me but, I guess, more than that it's my family and people who know me. They suffered along with me. So it hasn’t just been a ‘me’ thing. It's easy just to think about myself but my wife of almost 24 years now suffered through every day of it as well. And I have two adult children. They grew up with it. And they suffered through it as well.
I have accepted that Mr Booth truthfully gave evidence about what happened to him (and with respect to the alleged staged suicides, about what he thought he saw). However, the issue of whether these incidents and events were contributed to, to a material degree by his employment in the Defence Force will also depend upon the evidence of Dr Terace and Dr Fellows-Smith which I discuss below.
Incorrect information in medical records
During cross-examination, Mr Booth was asked about incorrect information that he had given about his service in previous forms, and about incorrect information about his service history recorded by medical practitioners as being reported by Mr Booth. The Respondent submitted that this indicated that Mr Booth was not a reliable witness and that there was insufficient evidence to suggest that the events described by Mr Booth occurred or occurred in the manner described by Mr Booth.
During cross-examination, Mr Booth was asked about his “application for health care for certain mental health conditions” form (T4). This was an application for what is known as a “white card” which entitles the holder to subsidised medical treatment for certain mental health conditions. The form was dated on 9 December 2016. In the box for “place of overseas service” the words “Afghanistan – Iraq (secondment to SASR UK)” were written. His date of discharge was also stated as 2001. This information is obviously incorrect because Mr Booth did not serve overseas and was discharged in 1991. His evidence was that he signed the document as a blank form which was given to him by a social worker when he was in hospital after a suicide attempt. He stated that it was not his handwriting in the form and the first time he saw the form was when Mr Endrey showed it to him. Mr Booth was able to confirm other details in the form such as his service number, email address and bank account number were correct (transcript/24-25 and 27).
After he realised the information in the white card form was incorrect, Mr Booth made a statement on 23 February 2021 where he explained his circumstances at the time the form was filled out (TB4/25). The relevant parts of Mr Booth’s statement are as follows:
In December 2016 I was admitted to Royal Perth Hospital for treatment following a suicide attempt. I was heavily medicated on admission and generally in a bad way. There are ample medical records documenting my condition at the time.
The social worker at the hospital provided me with a number of blank forms to sign including the mental health care application [white card application]. The first time that I saw the completed application form was several months ago when it was included in other documentation discovered in the course of a review application.
The service history detailed in the submitted mental health care application form refers to having served in the Army for three years and six months including active service in the Middle East; and having “seen ‘terrible things’ in his role as a Medic”. It is obviously the service history of another veteran. I have never at any time claimed such service.
I was not aware that I was eligible for mental health care before learning of this from the hospital social worker. My recollection at the time was that I was told that I only needed to have served in the military for one day to be eligible for mental health care funded by the Department of Veterans’ Affairs. I did not discuss with anyone at the hospital, or later at the Hader Clinic in Queensland, my actual military service.
The writing in the application form is different to my signature which can be verified by a handwriting expert.
I am very concerned that there is a possibility that I have been receiving mental health care based on erroneous information. If this is the case, it is through no fault of my own and I have acted in good faith throughout.
In a covering letter to the Department dated 24 February 2021 (TB4/24), Mr Endrey explained:
Mr Booth currently has a White Card for Non-Liability Health Care for Mental Health Conditions issued on 20 December 2016. He has only now become aware that the White card may have been approved on the basis of erroneous information through no fault of his own.
The application for mental health care lodged on 9 December 2016 contains the service details of another soldier with a completely different service history to Mr Booth. Please refer to the attached statement of Mr Booth in which he details the circumstances under which the application was made.
It is assumed that the Department of Veterans’ Affairs verified Mr Booth’s service history prior to issuing the White Card and approved it on the basis of his actual service record. In the event that it was approved based on the erroneous information provided, we ask that account be taken of the fact that it has only recently come to Mr Booth’s knowledge that the White Card may have been issued based on another soldier’s service history; and that Mr Booth has acted in good faith in this regard.
The reference to Mr Booth having “seen ‘terrible things’ in his role as a Medic” is from a confidential psychological report prepared by Psychologist Ms Amy White from the Hader Clinic dated 12 December 2016. Ms White had included a paragraph in her letter which correctly stated that Mr Booth joined the Army when he was 17, but then incorrectly stated (T5/25):
… he served for 3 years, 6 months before being honourably discharged. He reported that he was [sic] served in the Middle East during this time and saw ‘terrible things’ in his role as a Medic.
Mr Booth confirmed the evidence in his 23 February 2021 statement in his evidence at the hearing. He described his situation at that time as “terrible” and that (transcript/19):
I had had pneumonia very closely and previous to that and I had been admitted to the mental ward and that there. I was on the back of two years of homelessness. I was in a very poor physical health. I couldn't speak properly anymore. I couldn't walk properly. I wasn't really aware of my surroundings a lot of the time. I was in a really, really, bad state.
Medical records from Royal Perth Hospital (T6) show that Mr Booth was admitted on 8 December 2016 and discharged on 13 December 2016. These records confirm, in my view, that Mr Booth was in a “bad state”. His “presenting history” recorded that he was homeless and that he was brought to the emergency department after a prescription drug overdose. It recorded he was known to the hospital from previous presentations, noted a “background of PTSD”, a history of self-harm, a past suicide attempt and that Mr Booth reported feeling “depressed, hopeless and suicidal” and that “he drinks himself into a coma each day hoping he will die” (T6/28).
He stated that, with respect to the application for the White Card, he had never told anyone that he had served in the Middle East between 1989 and 2001 (transcript/19):
I didn't state that to anyone. I have never stated that to anyone in any way shape, or form. When I went to the hospital before I went to the Hader Clinic I was, as I have said, in a really terrible state. I wasn't able to write at all. So I didn't write that form. Now, I have seen the form.
Mr Booth’s evidence regarding his discussion with Ms White was that he did not discuss his military service with her. He admitted to having a poor recollection of his interview with Ms White (which was conducted by telephone because Ms White was in Queensland) due to his mental state and his being heavily medicated at the time. He thought that he may have said to Ms White that he saw “terrible things” in the Army (transcript/20, 28, 30). He emphatically denied giving Ms White false information about his military service (transcript/31; see also 33):
The only thing that I've ever said to Amy in respect to that is I have used the phrase “terrible things” but that was much later, that was like weeks and weeks after I’d been at Hader so it must be something I say commonly, but I didn't tell her I was a medic, because that's not true. I didn't tell her I served for three years and five months because that's not true and obviously I didn't serve in the Middle East because that's not true – and I didn't say those things to her and I don’t know why they’re in that report.
Mr Booth accepted that he may have provided some of the other information recorded in Ms White’s report to her, or to hospital staff. This information included the sexual abuse he experienced as a child, the injury to his foot in the Army, that he experienced nightmares, flashbacks and had difficulty sleeping, experienced anxiety in large crowds and when hearing loud voices due to the violence and injury he witnessed in the Army (transcript/33-35).
As I have outlined, Mr Booth was consistent in his evidence that he did not provide incorrect information in his white card application or to Ms White. His evidence was that the only explanation he could think of was that his information may have been confused with another soldier’s information who had served overseas. That other soldier was in hospital at the same time as Mr Booth and went to the Hader Clinic on the same plane as Mr Booth (transcript/19 and 32).
During cross-examination Mr Booth was taken to several medical records which recorded him as reporting that he had served in the Middle East:
(a)An undated clinical psychology referral form records, “PTSD served in military in middle east” (ST23/1500-1501). In his evidence, Mr Booth said he thought that this form was completed during one of his visits to Royal Perth Hospital prior to his admission to the Hader Clinic. The form referred to a recent hospital admission on 2 September 2016, and incorrectly recorded the date of 12 November 2016 as Mr Booth’s birth date. It is likely this latter date was the date this form was completed. Mr Booth denied that he told the writer he had served in the Middle East. Mr Booth thought the incorrect information may have filtered through from another report or medical summary (transcript/41-42).
(b)An electronic record from the Hader Clinic dated 22 December 2016 recorded that Mr Booth reported “‘cysts’ in his damaged ear from where a weapon discharged near his ear during active service in the Middle East” (ST21/1378). Another electronic record from the Hader Clinic dated 23 December 2016 stated that Mr Booth “reported being in the Army as a paramedic from age 17 to 21” (ST21/1377). Mr Booth could not recall these specific counselling sessions (transcript/38 and 40).
(c)A Trauma Recovery Program Assessment Report from Hollywood Hospital, with an assessment date of 13 June 2017 (after Mr Booth had been in the Hader Clinic) stated under the heading of “service history” that Mr Booth, “was unsure how much information he could disclose about active service (3 months duration), due to being told at the time not to disclose information” (ST20/1196). Mr Booth denied that he said he had active service overseas. He thought that he may have been asked about overseas service, but he thought that he would have avoided the question (transcript/42-43).
I accept Mr Booth’s evidence that he did not deliberately provide false information to obtain his white card, that he did not intentionally give false details about his service and that he often avoided questions about his service.
It is also important to look at what was happening when these statements were made. Around the time of his white card application and admission to the Hader Clinic, Mr Booth had been admitted to hospital after attempting to overdose, was in a “really, really bad state”, was not aware of his surroundings and was heavily medicated. Even if he did make incorrect statements about his service (and I do not so find), he has no recollection of doing so and any statements would have been made in the context of a mental health episode. In those circumstances, if incorrect statements were made, it would be appropriate to regard them as involuntary and not in any way a reflection of his credibility or reliability.
This also leads me to express the concern that the statements that the Respondent relies upon to question Mr Booth’s reliability were made whilst Mr Booth was seeking mental health treatment. This raises the issue as to whether the Respondent should, in these types of applications, be permitted to rely upon statements made during such treatment to question reliability or credibility.

My concern is that veterans may be discouraged from seeking mental health treatment or may not be fully frank with treatment providers about information relevant to their diagnosis and care, if there is a concern that the information may be detrimental to any future claims, or to any pending or future legal proceedings.
I ask that the Department of Veterans’ Affairs consider this issue further with a view to making recommendations or producing guidelines so that information provided by veterans during mental health treatment should not be later construed against them, for example to raise issues of reliability or question the credibility of their claims.
expert medical evidence
Dr Fellows-Smith
Dr Fellows-Smith is Mr Booth’s treating psychiatrist. He has been treating Mr Booth for approximately five years since 3 October 2017 (transcript/103). Dr Fellows-Smith wrote a report dated 7 February 2018 concerning the Applicant (T43). He had not seen the documents produced under summons in these proceedings but had seen the comments of colleagues in other medical reports, including those of Dr Terace (transcript/119).
In summary, there are certain diagnostic criteria that are required to be satisfied before a diagnosis of PTSD can be made. These are summarised in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th ed, text revision, 2022) (DSM-5). The first criterion is that a person must have experienced what is referred to as a “Criterion A” stressor (sometimes referred to as a “Category A” stressor). In summary, a Criterion A stressor includes exposure to actual or threatened death, serious injury, or sexual violence.
Dr Fellows-Smith’s opinion was that the childhood sexual abuse suffered by Mr Booth was not a Criterion A stressor that is required for a diagnosis of PTSD. This was because of the nature of the trauma which consisted of other children touching his genitals outside of his clothes. Dr Fellows-Smith opined that the stressors for sexual assault in the DSM-5 involved aggravation or violence which did not exist in the circumstances of Mr Booth’s childhood sexual abuse (transcript/125). He stated that, “I think it’s been overstated, these issues from his childhood, apart from the fact that the bad touching that occurred might have made him more vulnerable to predatory males when he was at Watsonia” (transcript/108).
Dr Fellows-Smith opined that it was Mr Booth’s experiences in the Army that made him unwell, and further explained that Mr Booth’s childhood trauma may have made him more susceptible to the sexual assault (transcript/124).
… prior to ADF [Australian Defence Force], he wasn't psychiatrically unwell. And then, when he was discharged, he became very psychiatrically unwell and therefore, whatever happened in the ADF caused a change in his mental state. But before he got to the ADF, he had something that was similar to the trauma and I've made the comment that that was a vulnerability that might have made him preyed upon at Watsonia.
As I understood Dr Fellows-Smith’s evidence, his opinion was that Mr Booth’s childhood sexual trauma made him more susceptible to PTSD, which is why he described Mr Booth as presenting with “complex post-traumatic features” (transcript/124). Dr Fellows-Smith explained (transcript/109):
… buried inside him was the seed of trauma and when the trauma reoccurred, it then ignited an inflammatory process that he tried to put out with alcohol and this took him an awful long time to understand what was going on and he sought help in the right places.
Dr Fellows-Smith stated in his evidence that “there was an accumulation of stressors culminating with a sexual assault” (transcript/111) and that he believed the sexual assault at Watsonia was the Criterion A stressor for Mr Booth’s PTSD (transcript/112):
… the compensable injury … was the sexual trauma that occurred during his military service. And that led to a post-traumatic stress disorder and that features in his presentation and made it very difficult for people to comprehend and get to what really happened. And I've had the benefit of knowing him now for about five years.
And further (transcript/116): “The big change in the DSM-5 was aggravated sexual assault and he certainly had that index trauma and that is why he's got post-traumatic stress disorder now”.
Although Mr Booth told Dr Fellows-Smith about what he thought were staged suicides, that was not the basis for Dr Fellows-Smith’s diagnosis of PTSD. He explained, “I don't think it's material to the onset of his sexual assault related post-traumatic stress disorder” (transcript/118).
My impression from Dr Fellows-Smith’s evidence was that he had done considerable work with Mr Booth to gain his trust and confidence, and as that developed, Mr Booth made further admissions to him. For example, Mr Booth told Dr Fellows-Smith about the staged suicides recently (transcript/127).
Although Dr Fellows-Smith “wrote down faithfully” (transcript/115) what Mr Booth told him, he does not seem to me to have uncritically accepted what Mr Booth told him. Dr Fellows-Smith stated, “I think he's a genuine witness and not someone who's trying to mislead me” (transcript/122). The basis for the belief Mr Booth was being truthful was that his symptoms were consistent with the events recounted by Mr Booth (transcript/128):
And I've heard Dr Terace say in the past that you'd have to be a very good actor to be able to construct fabrication of such things. And I don't think that Mr Booth conforms to the possibility of malingering or being factitious because his symptoms are very consistent with the pathophysiology.
As Mr Booth’s treating practitioner, Dr Fellows-Smith also stated that Mr Booth recently had specific somatic reactions in the form of “symptoms in his urinary-genital tract” which he believed to be a feature of Mr Booth’s complex PTSD (transcript/104). Dr Fellows-Smith stated that “when a doctor sees a specific somatic reaction, I don't think that's easy for a patient to fake that” (transcript/115).
In his report dated 7 February 2018, Dr Fellows-Smith was able to comprehensively explain the basis for his diagnosis of PTSD with reference to the diagnostic criteria in DSM-5, Criterion (“Category”) A through to F. Dr Fellows-Smith summarised his opinion towards the end of his report (T43/181) as follows:
Mr Booth presents with Post Traumatic Stress Disorder directly related to sexual assault that occurred when aged seventeen years old as a Private at Band Corp where he worked as a percussionist in Watsonia, Victoria. The time of onset of his Post Traumatic Stress Disorder was on or around 1990. He presents with anxiety, depression, panic attacks, vertigo, interrupted sleep, re-experiencing dreams of his traumatisation, restriction of affect, rumination on traumatic themes, loss of motivation and some mild cognitive impairment related to a dissociative tendency.
(My emphasis.)
I have emphasised anxiety and depression in the above passage to highlight Dr Fellows-Smith’s diagnosis that Mr Booth had anxiety and depression associated with his PTSD.
Dr Fellows-Smith also diagnosed Mr Booth with “secondary alcohol dependency” (that is, the “primary problem” was Mr Booth’s PTSD with his alcohol dependency being a secondary addiction – see T43/182) and referred to his “a 20-year run of very serious alcohol-related problems” (T43/182; transcript/107).
Dr Terace
Dr Terace wrote two reports concerning Mr Booth. The first was a report dated 14 April 2018 (TB5), and the second was a supplementary report dated 16 September 2019 (TB10). Dr Terace wrote the reports as an independent medical examiner, after being requested to do so by the Respondent. Dr Terace had the benefit of reviewing the documents produced under summons in these proceedings. He also interviewed Mr Booth for four hours on 9 April 2018 (TB5/27 and 50).
In his first report, Dr Terace acknowledged that: “The diagnostic and causative issues in this case are complex” (TB5/50). He further acknowledged that: “The veracity of Mr Booth’s contentions about his military service is ultimately a legal matter outside of my determination” (TB5/51), and further that: “To begin with, the claims of extreme stressors in the military would need to be verified as fact” (TB5/55).
Although Dr Terace agreed that PTSD was a possible differential diagnosis, his opinion was as follows (TB5/62):
Whilst I accept that a Post-Traumatic Stress Disorder is within the realm of possibilities and in the differential diagnosis, I simply do not have sufficient evidence on the balance of probabilities to lead me to conclude that his symptoms cannot be explained by other factors, causes and diagnoses.
Rather, Dr Terace’s diagnosis for Mr Booth was that he suffered from alcohol dependence disorder, which had been in remission for the last 15 months, and that he had symptoms of generalised anxiety disorder that were partly in remission but with a risk of relapse (TB5/56 and 63).
At the hearing Dr Terace explained that he came to his conclusions regarding Mr Booth having alcohol dependence disorder based on the history taken by consultants and psychiatrists in the medical documentation. He referred to the histories taken by Dr Michael Woodall and Dr Lee who described a family history of depression and early alcohol abuse as a child. Dr Terace formed the view that (transcript/140):
So the alcohol use was described to be much more substantial than was otherwise described as the history to me prior to the military service. So that history was quite consistent throughout the medical documentation, such that there were already a plethora of experiences and genetic risk, meaning that Mr Booth was already genetically and psychologically vulnerable and already had an established pattern of alcohol dependence prior to entry to the military.
Dr Terace further explained in his report that if the traumatic events Mr Booth described as occurring during his military service “occurred as fact, then it possibly temporarily contributed to his Alcohol Dependence Disorder, but there were other factors that explain that Alcohol Dependence Disorder both before and after his military experience” (TB5/58). Dr Terace expanded on this at the hearing (transcript/141):
… in this case when one looks at the totality of the clinical picture, Mr Booth was unfortunately highly predisposed and had already developed an alcohol use disorder prior to entering the military. Then upon leaving the military his disorders were manifested with a range of psychosocial stressors, such that the totality of the clinical picture is clear, such that even if the events in the military occurred as fact and even if that is supported, it would then be possible those events led to a temporary aggravation of his mental state at that time, but there was insufficient evidence to support the concept of a Post-Traumatic Stress Disorder caused by those experiences in the military and that opinion was also supported by both Dr Woodall and Dr Lee who both provided opinions in writing in 2017. So I think it’s reasonable to speculate that it’s possible but in science possible is insufficient and we rely more on what is probable and what is probable to the standard of scientific rigor or to the standard of scientific proof. And in this case I would consider it reasonable to suspect that – and I form my hypothesis that those events, if they occurred as they did, possibly temporarily aggravate his mental state but given the totality of the evidence prior to the military and after the military, it's far more likely and probable that his mental state was unrelated to the events of the military itself.
In his evidence at the hearing Dr Terace noted that there was “quite substantial evidence noted across the medical documents that I reviewed that specified that Mr Booth had some problems with memory, which is not surprising given the long history of severe alcohol use disorder which involved both abuse and withdrawal”. Dr Terace opined that these inconsistencies raised questions about whether the history given by Mr Booth was reliable. This did not mean, according to Dr Terace, that Mr Booth was being untruthful, but that memory is subjective (transcript/139; see also transcript/143).
In his supplementary report, Dr Terace stated that he had reviewed additional documentation including the section 37 documents T-documents (Exhibit 2) and nearly 2000 pages of documents produced under summons (TB10/87). This additional information did not cause Dr Terace to change his opinion and he opined that it was supportive of his opinions (TB10/120). He remained of the view that he did not find sufficient evidence of PTSD “as a product of military service on the balance of probabilities” (TB10/93).
Evaluating the medical evidence
After outlining the evidence and opinions of Dr Fellows-Smith and Dr Terace, I will now turn to whose evidence I prefer.
I make the initial observation that this task is somewhat complicated by difficulties in the way Dr Fellows-Smith presented and gave evidence at the hearing. To give Dr Fellows-Smith the benefit of any doubt, I acknowledge that there were some issues with the audio, and I had to ask for several questions and answers to be repeated where the audio malfunctioned.
However, Dr Fellows-Smith was a somewhat challenging witness. He frequently commenced answering questions before the question had been fully stated. This resulted in different answers being given to the question that was being asked. This was particularly evident from when the cross-examination commenced. Dr Fellows-Smith also presented as defensive when the cross-examination commenced. For example, he asked Mr Burgess, “why are you trying to interrupt me?”; “No, hold on, why were you trying to interrupt me, Mr Burgess?”. He further stated: “This means the difference between this man’s life and his death” (transcript/113).
On at least five other occasions I had to stop Dr Fellows-Smith so that Mr Burgess could finish asking the question before Dr Fellows-Smith gave his answer (transcript/115, 116, 117, 118, 121). On the fifth occasion (transcript/121), I expressed my frustration as follows:
Doctor, Doctor, I'm getting quite frustrated here, because I feel that I keep having to interrupt and I keep having to repeat my instructions, which were, please listen to the question that is being asked and then you can answer the question.
Unfortunately, the presentation of Dr Fellows-Smith was somewhat disadvantageous to Mr Booth because it gave the impression that Dr Fellows-Smith was advocating for Mr Booth and that he lacked objectivity. I do note that Dr Fellows-Smith was provided with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence. However, when asked what he understood his role to be, Dr Fellows-Smith’s answer was somewhat ambiguous. He referred to the weighting to be given to evidence, rather than any duty to provide impartial assistance to the Tribunal (transcript/114-115).
Notwithstanding these issues, there are some advantages that a treating medical practitioner has, compared to a medical practitioner engaged to prepare an independent medico-legal assessment. A treating practitioner will often have a relationship of trust and confidence with a patient and is able to form an opinion and diagnosis of the patient over time. This relationship of trust and longitudinal perspective may result in more fulsome disclosures being made by the patient and may allow for the treating practitioner to form a more accurate picture of the patient because they have the advantage of seeing the patient on many occasions over a lengthy period. Dr Fellows-Smith has, as I mentioned above, been treating Mr Booth for approximately five years, and has had the benefit of seeing him relatively frequently over this time. It was apparent to me that a relationship of trust had been built during this period, with Mr Booth being able to make additional disclosures to Dr Fellows-Smith over time, and with Mr Booth recently making positive steps in his treatment (transcript/122 and 130). It is likely that this longitudinal perspective had allowed Dr Fellows-Smith to form an accurate view about Mr Booth’s diagnosis.
Being an independent medical examiner can be advantageous in terms of objectivity because there is no pre-existing doctor-patient relationship whereby the doctor may be influenced to advocate for the patient. An independent medical examiner will often have access to more financial resources, which will permit an extensive review of the documentation that forms an applicant’s medical history, including up to date materials produced under summons. Dr Terace presented as more objective than Dr Fellows-Smith when he gave evidence at the hearing. Although he only saw Mr Booth for four hours, he was able to comprehensively review thousands of pages of medical records produced under summons in these proceedings. I note that Dr Fellows-Smith did not have access to these but did have access to Dr Terace’s reports in which Dr Terace comprehensively summarised that medical evidence.
Although Dr Terace’s reports contained a very comprehensive review of the documentary medical evidence upon which he based his opinions, in my view, Dr Fellows-Smith more comprehensively explained the basis for his diagnosis. As I mentioned above, in his report dated 7 February 2018, Dr Fellows-Smith addressed each of the diagnostic criteria for PTSD and explained why they had been satisfied. I agree with Dr Terace’s acknowledgment that the diagnostic and causative issues in Mr Booth’s case are complex. Given this complexity, and given Mr Booth’s difficulty trusting people, I am of the view that Dr Fellows-Smith would have been more likely to have formed the more accurate picture of Mr Booth’s diagnosis over five years of treatment, including being able to directly observe Mr Booth’s specific somatic reactions.
Above, I accepted Mr Booth’s evidence as being truthful. I am reasonably satisfied that the bastardisation and assaults at Kapooka against him occurred, that Mr Booth was sexually assaulted at Watsonia, and that he experienced the grenade simulator incident and the bayonet fight in the manner he described. I accept Mr Booth’s evidence that his alcohol use was not problematic until after his discharge from the Army. I accept that, whilst Mr Booth had some difficulties remembering precise details of events that his evidence was reliable and that he did not deliberately make false statements about his service. My findings concerning these incidents and issues are more consistent with the factual findings that underpinned Dr Fellows-Smith’s opinion.
In accordance with my preference for Dr Fellows-Smith’s opinion and evidence, I find that Mr Booth suffers from the ailments of PTSD (with associated anxiety and depression – see para [133] above) and secondary alcohol dependency.
Material contribution
The next issue for determination is whether those conditions, namely Mr Booth’s PTSD (with associated anxiety and depression) and secondary alcohol dependency, were contributed to, to material degree by his employment in the Defence Force.
I repeat that I have accepted the opinion of Dr Fellows-Smith that Mr Booth suffers from PTSD (with associated anxiety and depression) and secondary alcohol dependency, with the Criterion A stressor being the sexual assault against him at Watsonia.
As I have also discussed above, prior to 13 April 2007 the considerations in s 5B(2) of the SRC Act that decision-makers may apply to determine the degree of employment contribution to an ailment were not included in the SRC Act. However, some of those considerations help to provide some insight into the degree of employment contribution to Mr Booth’s ailments. Those considerations include the duration of his employment, the nature of the tasks involved in the employment, any pre-disposition Mr Booth may have had, as well as activities outside of employment. Consequently, I will now discuss these considerations.

Mr Booth was employed in the Army for a relatively short period of time of approximately a year. He enlisted when he was 17 years old on 24 July 1990 and was discharged on 9 August 1991. Despite this being a short period of time, significant events occurred during that time, including Mr Booth being sexually assaulted as an 18-year-old at Watsonia.
In terms of the tasks involved in the employment, Mr Booth was a recruit at Kapooka before going to Watsonia for further training, including as a musician. In the section above titled, “The evidence at the hearing” I detailed the traumatic events that Mr Booth was exposed to during his training including bastardisation and assaults, the grenade simulator (whizbang) incident, the staged bayonet fight, and the sexual assault at Watsonia. In this regard, I accept the evidence of Dr Fellows-Smith that the Criterion A stressor for Mr Booth’s PTSD was the sexual assault at Watsonia.
Regarding any pre-disposition of Mr Booth, there is reference in the evidence of Dr Terace of a family history of mental illness. However, Dr Fellows-Smith, whose evidence I have preferred, did not attach weight to this. Mr Booth was however, in my view of the evidence, a very sensitive young man who wanted to play music and was likely unprepared for the rigours of training. Additionally, as was observed by Dr Fellows-Smith, his childhood sexual abuse by neighbouring children may have made him more susceptible to predatory behaviour. He may have had an “eggshell psyche” (as contemplated in De Tarle) from that abuse which made him more predisposed to a psychiatric injury when he was sexually assaulted. I am also reasonably satisfied that the bastardisation and assaults, the bayonet incident and the grenade simulator incident which occurred when he was a recruit at Kapooka, may have also added to Mr Booth being predisposed to a psychiatric injury when he was sexually assaulted at Watsonia. As Mr Booth said concerning the effect of the bayonet incident on him, “I was living in such a heightened state of stress that it was just – it was like putting extra water in a bucket that's already full” (transcript/14).
There is no evidence of any activities Mr Booth was undertaking outside of his employment during his time in the Army that may have contributed to his ailments.
As I mentioned above, Dr Terace thought that Mr Booth had problematic alcohol consumption prior to his time in the Army, based on his review of certain medical records. However, above I accepted Mr Booth’s evidence that these records were not an accurate description of his childhood alcohol use and that his alcohol use only became problematic after he left the Army.
Mr Booth also seems to have had significant issues in his life after leaving the Army including trouble with the law, difficulty retaining his employment due to being intoxicated at work, homelessness, and a marriage break-down. The evidence tends to suggest that these issues were likely due to his PTSD and secondary alcohol dependency (and particularly due to his alcohol use).
I find that Mr Booth’s employment in the Army materially contributed to his PTSD (with associated anxiety and depression) and secondary alcohol dependency. There are few, if any factors, outside of his employment that were causative, and any predisposition outside of employment, such as his childhood sexual abuse, is, in my view, significantly overwhelmed by events that occurred during his time in the Army, with the sexual assault at Watsonia being paramount.
I therefore find that Mr Booth’s PTSD (with associated anxiety and depression) and secondary alcohol dependency were contributed to, to a material degree, by his employment in the Defence Force.
Incapacity for work or impairment
Subsection 14(1) of the DRC Act provides that the Commonwealth 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 (my emphasis).
There is evidence that Mr Booth’s injury of PTSD (with associated anxiety and depression) and secondary alcohol dependency caused him both incapacity for work and impairment from the time he was discharged from the Army until the present time.
After leaving the Army, Mr Booth had difficulty sustaining employment with several employers due to being intoxicated at work. He suffered a marital breakdown in mid-2015 which resulted in two years of homelessness (transcript/ 11 and 19) and then a reconciliation with his wife. Mr Booth also had trouble with the law. At the hearing he admitted to being charged with “numerous assaults”, doing court ordered substance abuse programs and three anger management programs (transcript/22). Mr Booth also had his drivers’ licence suspended for five years after drink driving in 2015, which impacted his ability to work as a sales representative (TB5/31-34).
Mr Booth has had multiple hospital presentations, with Dr Terace mentioning a record of 50 presentations to the emergency department in his evidence (TB5/41; transcript/149). As I outlined above, Mr Booth was admitted to hospital in December 2016 following a suicide attempt and was unable to work from that time, but in the last year he obtained some work associated with drumming (transcript/130). This equates to a period of approximately six or seven years when Mr Booth was unable to work at all which I find was due to his PTSD (with associated anxiety and depression) and secondary alcohol dependency.
I find that Mr Booth’s PTSD (with associated anxiety and depression) and secondary alcohol dependency resulted in impairment and incapacity for work for significant periods.
Conclusion
Mr Booth suffers from the ailments of PTSD (with associated anxiety and depression) and secondary alcohol dependency which were contributed to, to a material degree, by his employment in the Defence Force.
I therefore find that Mr Booth suffered an “injury” which is compensable under s 14 of the DRC Act.
Decision
The Reviewable Decision is set aside and substituted with the decision that the Commonwealth is liable to pay compensation to Mr Booth under s 14 of the DRC Act for PTSD (with associated anxiety and depression) and secondary alcohol dependency as diagnosed by Dr Fellows-Smith.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[Sgd]...........................................................
Associate
Dated: 2 December 2022

Date of hearing:
24 and 25 February 2022; 3 March 2022; 15 March 2022

Date final submissions received:

Representative for the Applicant:

24 November 2022

Mr A Endrey, RSLWA

Representative for the Respondent:

Mr A Burgess, Sparke Helmore Lawyers