BROMHAM and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2009] AATA 894
•20 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 894
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4455
VETERANS' APPEALS DIVISION ) Re SHELDON BROMHAM Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate20 November 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
...........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Australian Army from March 1999 to October 2002 – applicant served in East Timor from October 1999 to April 2000 – applicant claimed compensation for post traumatic stress disorder, irritable bowel syndrome and irritable bladder on basis that causally related to service in East Timor – applicant does not suffer from post traumatic stress disorder – applicant suffers from other mental ailments – applicant suffers from irritable bowel syndrome and bladder condition – none of applicant’s mental or physical ailments contributed to in material degree by service in East Timor – applicant not entitled to compensation – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5 and s 14(1)
REASONS FOR DECISION
20 November 2009 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. Sheldon Bromham (“the applicant”) enlisted in the Australian Regular Army in March 1999 and was discharged on the ground of medical unfitness in October 2002. He served in East Timor from October 1999 to April 2000.
2. On 1 November 2006 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of :
· post traumatic stress disorder;
· irritable bowel syndrome; and
· irritable bladder;
which he claimed he sustained when performing rifleman duties in the course of his military service in East Timor.
3. On 2 July 2007 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination disallowing the applicant’s abovementioned claim for compensation under the SRC Act.
4. On 29 July 2008 a Review Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act affirming the determination of 2 July 2007.
5. On 24 September 2008 the applicant lodged with the Tribunal an application for review of the reviewable decision of 29 July 2008.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether the applicant has suffered any “ailment … that was contributed to in a material degree” (within the meaning of the SRC Act) by his military service in East Timor. If the Tribunal determines that the applicant has suffered any such ailment, the applicant will be entitled to compensation under the SRC Act in respect of that ailment.
7. For the reasons which follow, the Tribunal has determined that, although the applicant suffers from certain mental and physical ailments, none of those ailments was “contributed to in a material degree by” his military service in East Timor. Accordingly, the applicant is not entitled to compensation under the SRC Act in respect of any of those ailments.
The Relevant Legislation
8. Pursuant to s 14(1) of the SRC Act compensation is payable in accordance with that Act in respect of an “injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
9. Section 4(1) of the SRC Act (as in force at all material times) relevantly provided:
“ In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
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 …
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
Section 5 of the SRC Act relevantly provides:
“ (1) In this Act, unless the contrary intention appears:
…
employee means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
…
(2) Without limiting the generality of subsection (1):
…
(b) a member of the Defence Force; or
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted … by the person’s performance of duties as such a member of the Defence Force …
…”
The Evidence
10. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T73, pp1–249) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A6 tendered by the applicant;
· Exhibits R1–R8 tendered by the respondent; and
· the oral evidence of the applicant, and Dr Oleh Kay and Rory Kelliher (who were called by the applicant), and Dr Peter McCarthy and Colonel Peter Langford (Retd) (who were called by the respondent).
The applicant’s evidence
11. In his examination-in-chief the applicant was asked to describe the four incidents in East Timor on which he based his present claim for compensation under the SRC Act. His evidence was as follows:
“ MR TURNER: Now, you have claimed that there were four incidents which occurred to you, and as closely as you can remember the dates, can you explain to us the incident which we will refer to as the decomposing bodies down the well?‑‑‑Yes. Our company, Bravo Company was only in Dili for the first three weeks of a deployment, so it would have had to have been in that time. I don’t know the exact date. We were called – our section, our chock of two three Charlie was called to check out a well for possible human remains down the well. We were only there to clarify it, and once clarified, my section commander and a few other section members looked down the well to see what we think, we believe there were human remains and called the military police. That was our job. Once military police arrived we left.
Thank you. So you say that was in – approximately three weeks ‑ ‑ ‑?‑‑‑It would have been within those three weeks.
Now, there’s another incident which you said was the caved (sic) head up a tree. Do you recall when that occurred?‑‑‑That would have been within probably the first two weeks, as we did not have showers my sergeant took our chock to the beach to go for a swim, and we were the closest unit to the situation, so we were called in to provide security for the military police, who were going to recover the head from the palm tree.
The third incident I think was the spider bite?‑‑‑Well, we don’t know what insect.
I’m sorry?‑‑‑We don’t know the insect.
All right, the unknown insect that bit you?‑‑‑We were in a location where we were told to clean up the area, just to pick up rubbish, bits of wood, so – it felt like something – I just picked up this piece of wood, felt like my finger was hit by a hammer. I went to my section commander and said something’s bit my finger, so he said just to wash your hand, go and have a lay down. I started to hyperventilate and so my section commander was – because our vehicle had gone away to pick up the lunches, so we had no transport at the time, so we had to wait for the vehicle to return. He medevaced (sic) me to the first aid post.
What treatment did you receive?‑‑‑I believe it was antihistamine injections.
How long were you in the hospital?‑‑‑I was there for two days.
Thank you. Can you give us some idea of how painful the bite was?‑‑‑I’ve never felt pain like it, it was excruciating. Another member, … he had the same reaction when he was on patrol and he said the same thing, finger – he felt like someone hit the finger with a hammer. You just felt this burning sensation running up your arm. I started to feel it going to my chest, I was having problems breathing. I’ve never felt anything like it before. It was just excruciating.
Finally, the unauthorised discharge. Can you explain that incident to us?‑‑‑My section, two three Charlie, was attached to 5 Platoon, we went out on a patrol with 5 Platoon where they set up like a sort of headquarters for that – where we were. My section left me and one other member from my section behind and done a separate patrol. I was there for 5 Platoon and the Sergeant Malingan (sic), and I was helped by Cowlaher (sic) because he was from Perth as well, we were talking about the surf down at Margaret River. I wasn’t paying much attention to what he was doing, but he was cleaning his weapon and everyone was talking, next thing I know his weapon discharged. I quickly checked myself to make sure I was okay, because we didn’t know where the round went, and then Private Godfrey entered the room and he said that – is everyone all right, what happened, Cowlaher (sic) put his weapon on the ground and said, ‘It was me, it was my fault’ and so he had to go and see Sergeant Malingan (sic) and I just went and sat down by myself for about half an hour. Someone come and checked me and made sure I was all right, and I said I’m okay, just shaken up.
Did you – could you explain to us the room you were in when this happened?‑‑‑It was just a plain concrete empty room, had one window, one door, the door was on my left hand side, the window was straight in front of me, and Cowlaher (sic) was sitting below the window. We were probably a metre apart max, metre and a half, no more than that, it was a very small room. Yes.
You say it was a very small room, how small was it, do you think?‑‑‑Shoe box.” (Transcript pp 7–8)
12. The applicant said that when he left East Timor he spent one month’s leave in Perth and then returned to Darwin. His evidence continued:
“ When did you first notice the symptoms of what you later learned to be post traumatic stress disorder?‑‑‑I think after returning back up to Darwin, I started distancing myself from the Army. As soon as work was over I just get my push bike and leave base straight away. I avoid anything military as much as possible. There used to be a Buddhist temple in Darwin, which I used to ride to after work every day.
When did you first see a doctor about it?‑‑‑Well, there’s one incident when I was in – still in the service and I had a charge against me, I was 10 minutes late to work, I was on crutches because I’d smashed up my right ankle and I was losing the plot and I went to the padre and I said I needed help, before I do something stupid and he says, ‘Come back and see me tomorrow’, and I said, ‘That’s not soon enough’. So I went straight up to psych department and I said I wanted to speak to someone and he says, ‘Well, what’s wrong?’ and I said, ‘I’m going – if something is not done I am going to do something stupid, which I’m going to regret’, because my basic thoughts were I could either kill myself or run away, and ‑ ‑ ‑
Just take a moment to compose yourself?‑‑‑Grab some water?” (Transcript, p 9)
Following a brief adjournment the applicant resumed his evidence-in-chief as follows:
“ Mr Bromham, you recall that before the break I asked you when you first went to see a doctor about your concerns? You explained that you went to the padre, and then you went to the psych department. Can you tell us what happened when you went to the psych department?‑‑‑If I told the psych that it was either my life in the army or kill myself, that would have been the end of my career, for starters, and there would have been a psych discharge, and I didn’t want that. I wanted to make the military my career, that’s why I joined. So I said, ‘I just can’t tell you’, and he said, ‘If you can’t tell me anything, then I can’t help you’. I had a lot of problems getting along with my peers, at the time, I was – my unit – I think my platoon was having difficulty with me because they changed – they moved me from 6 Platoon to 5 Platoon, changed my company numerals around. I remained in 5 Platoon until I was discharged. I took up racing motor cross (sic) when I was still in the army. I joined team army racing. I think I was just trying to distance myself from the army, do anything to keep my head busy and so the biggest activity I done while I was still in the army was every day to ride to the temple. I just found it peaceful, it was quiet, there was no one there. So – and I done that pretty much until I discharge. After discharging October 2002 I returned back here to Perth, where I moved in with my mother, because I had nowhere else to go and then I, sort of, tried to resume life before I joined the army. I had difficulty relating to my friends. As a result now I don’t have much contact with any of my old friends, and my mum asked me to go and see my GP, because she says, basically, she said I’d changed and there was something wrong with me, just wasn’t normal, so – and then my GP referred me to Dr Rosemary German-Belmont, psychologist, who ended up referring me to Professor Burvill, psychiatrist.
And how did Professor Burvill diagnose your condition?‑‑‑I saw him for a few times, it took me quite a long time to get me talking. I hadn’t talked about anything about this, to anyone, but to Burvill. So I – he just made some conclusions on, sort of, what I was just saying in the middle and then he saw me more and more and more. I was seeing him for about an hour once a month, and I was seeing Rosemary once a week, and I think twice a week for a while. Just to try and get me there. Calm down a bit, I think.
What did Dr Burvill say was wrong with you – I’m sorry, Professor Burvill?‑‑‑Professor Burvill, he said that I have something that’s called PTSD which is post traumatic stress disorder. It’s a common thing from Vietnam Vets and things like that, people who have seen war service. I never knew nothing about it before I saw him. Once I learnt the symptoms and explained a lot to me why I was the way I was. That helped.
And you say that you saw him about once a month ‑ ‑ ‑ ?‑‑‑I saw him for once a month.
‑ ‑ ‑ for an hour. How long did that go on?‑‑‑Until he retired.
Was that one year, two years?‑‑‑It would probably have been about two and a half years, two years.
Did you see anybody after you saw Professor Burvill?‑‑‑Yes, he referred me to Dr Alan (sic) Kay.
How often did you see Dr Kay?‑‑‑I see him once a month.
And that’s – I’m sorry, how long has that lasted?‑‑‑For the last year and a half, year. Since Burvill retired.
That’s ongoing?‑‑‑Yes.” (Transcript, pp 11–12)
13. In cross-examination the applicant was first questioned about the “bodies down the well” incident. He reiterated that he “believed” that he “saw human remains down that well”. Asked directly what he saw in the well, the applicant responded:
“ We used the torch – flashlights that we had on us – to look down the well. It’s possible that we saw maybe an arm or leg down there. It was a deep well. It was hard to pacifically [sic] see exactly what it was.”
The applicant’s cross-examination continued:
“ MR CLARK: Just to recap on what you just said – you said it was possible you saw an arm or a leg. It was a deep well and it was hard to see just what was at the bottom?‑‑‑Correct.
So you’re not entirely sure what you saw?‑‑‑No one in my section was.
I’m asking about you, Mr Bromham. You’re not entirely sure what you saw, are you?‑‑‑I can’t be a hundred per cent.
You have consistently told your psychiatrist that you actually viewed human bodies or human remains at the bottom of that well, haven’t you?‑‑‑Well, that’s what I thought I saw. If it was proven otherwise, I do not know.
…” (Transcript, p 17)
14. The applicant was next questioned about the discharge of the firearm incident. His evidence was as follows:
“ Right. Let’s go to the discharge of the firearm. Now, I just want to get some sense of what you’re saying. You’re sitting in this room and Kelliher is sitting opposite you, is that right?‑‑‑That’s correct.
Is he seated on the floor, or is he seated on a chair?‑‑‑Floor, there was no furniture.
All right. So I take it from that you’re seated on the floor opposite him?‑‑‑Correct.
Okay. I think you’ve said he’s about a metre away?‑‑‑At the most, yes.
So this room is perhaps no more than what, a metre and a half wide?‑‑‑That’d be true.
How long is the room?‑‑‑Maybe double the length as it was width.
So what, about three metres long?‑‑‑No, I don’t think it was that long, maybe two and a half to – it was a very small room.
Two and a half by one and a half?‑‑‑Something like that.
I think you said it had a window and a door?‑‑‑That’s correct.
What were the two of you doing sitting in such a small room?‑‑‑It was just down-time there was nothing for us to do, so we were talking about home, we’re both from Perth.
You were clearly in a position to observe what Kelliher was doing, since he was sitting so close?‑‑‑Cleaning a weapon is a daily activity, we didn’t take much notice of it.
But you’re sitting virtually – very close to him, aren’t you?‑‑‑Yes.
What were you doing at the time?‑‑‑I was just sitting there talking, we were talking about the surf at Margaret River.
Talking to him, so you were conversing?‑‑‑Yes, freely to him, there was no one else there.
So you’re clearly in a position to see what he was doing with his weapon?‑‑‑Yes, that’s correct. I had my weapon next to me.
How close do you say that the bullet passed to you?‑‑‑It was close enough.
Well, give us some estimate, please?‑‑‑Maybe a foot in front of my face.
A foot? Haven’t you said in the past that it was perhaps two to three metres away from you?‑‑‑Where it landed, that’s probably ‑ ‑ ‑
No, that’s as close as the bullet got to you, two to three metres?‑‑‑I never said that, no.
So you’re saying it passed a foot to what, above your head, to the left or the right?‑‑‑As I later found out, the round went into the roof, into the corner.
Which makes it highly probable that it’s going to pass, given the length of the weapon, where you’re seated, that close to your head, isn’t it?‑‑‑Say again? ‘Probable’ did you say?
Makes it highly improbable?‑‑‑Oh improbable?
Do you accept that or not?‑‑‑I guess so.
You guess so? Well, how close did it get to you then?‑‑‑I don’t know, I can’t work that out.
I see?‑‑‑All I know is that he was cleaning the weapon, next thing you know we heard – there was a bang.
It fired into the ceiling, didn’t it?‑‑‑Into the corner.
Did it fire into the ceiling or the wall?‑‑‑Into the ceiling roughly probably maybe just out from where the wall meets.
You’re sitted down, you’re sitting down?‑‑‑Yes.
The weapon has got to be what – how long is the weapon, a Steer (sic) rifle?‑‑‑About this long.
About what, about a metre, maybe a bit less?‑‑‑Maybe less.
Okay. So sitting there on the vertical, right, isn’t that right?‑‑‑Possible.
It’s impossible for the bullet to come within a foot of you, isn’t it?‑‑‑How was I supposed to know at the time?
You weren’t even in its line of fire, were you?‑‑‑Not ‑ ‑ ‑
Given the height of the bullet and where he was seated and where you were seated?‑‑‑I didn’t know that. I wasn’t even paying attention to what he was doing.
You would have seen very soon thereafter, as soon as you heard the sound of the discharge?‑‑‑Straight after it happened, Private Godfrey entered the room and I left, I didn’t check to see where the bullet landed.
You just told us that it went into the ceiling?‑‑‑I found that out after.
To your right?‑‑‑I found out later on in the day.
I see. All right. Well, it could not be the case that the bullet came as close as a foot and a half, after the bullet – after the discharge came as close as a foot to your head, could it?‑‑‑Well, if you’re sitting a metre away, rifle out, maybe two feet. It wouldn’t have been far.” (Transcript, pp 18–21)
Medical evidence in the T Documents and Exhibits
Dr Rosemary German-Belmont
15. A report of Dr Rosemary German-Belmont, Clinical Psychologist, dated 26 October 2004, to Dr Lee Foong, the applicant’s treating general practitioner, states as follows:
“ …
Mr Bromham came to see me for the first time on 31st August 2004.
I gave Mr Bromham various objective and self-report tests
1) A Stress Questionnaire,
2) A Post-traumatic Stress Test, (PTS)
3)A psychometric test – The CAQ (Clinical Analysis Questionnaire). The Clinical Analysis Questionnaire (CAQ) is used routinely to test normal Personality characteristics, clinical factors (that test for pathological traits), and Second order factors that summarise and test the validity of the previous results. There is also a ‘validity test’ that checks if there are any discrepancies in the information given by the testee.
…
1) The results of the Stress Questionnaire underlined many somatic, cognitive, emotional and behavioural symptoms. The most significant being the somatic, emotional and behavioural ones, which included symptoms of panic attacks (eg dizziness, trouble breathing, tremors, increased heart rate); and feelings of hopelessness, fear and anxiety.
2) The results of the PTS Questionnaire indicated many intrusion and avoidance symptoms. For example Mr Bromham showed many instances of re-experiencing the event, trying to utilize avoidance tactics and distraction to stop thinking about the many traumatic events he has experienced.
3) The results of Mr Bromham’s CAQ that are of significance to his ability for rehabilitation at this time were:-
Normal Personality Traits:
He obtained low scores for Warmth and Emotional Stability, which depicts a reserved, detached, cool person, who tends not to interact appropriately with others.
Clinical Factors:
The highest scores in the clinical factors were obtained in Paranoia, with Psychological Inadequacy, Withdrawal and Agitation were next, Hypochondriasis, and Depression were also at significantly high levels.
Second-Order Factors:
Mr Bromham obtained very high scores for Depression and Psychoticism and a low score for Extroversion which means a high degree of Introversion. These scores confirmed his low scores for Warmth and Emotional Stability, Psychological Inadequacy, and Withdrawal seen in the other results.
EXPLANATIONS & CONCLUSIONS:
(My findings are guided by the official diagnostic manual for psychiatric disorders – the DSM–IV – the professional literature, current research and my clinical judgment)
From the above results Mr Bromham appears to have all the symptoms of post-traumatic stress disorder, (PTSD), which may be the reason for the pathological results seen in his Personality Test (the CAQ). He appears to have developed some co-morbidities as well as the PTSD as seen by his high score in Depression and Paranoia. These scores, coupled with deep melancholia usually lead to problems with interpersonal relationships, as their partners usually complain that they appear emotionally cold and dispassionate. On a positive note, he is mature and prudent and, although dispassionate, may not be unrealistic about this.
There appear to be valid reasons for the paranoia, as he says he was ridiculed and victimized, not only by his Superiors in the Army, but also by his fellow-soldiers. This was due to his belief in Buddhist philosophy. Thus his paranoia is probably maintained by his sense of injustice and feelings of persecution.
I would also like to make the comment that as his philosophical beliefs are in direct opposition to his choice of an Army career, there must have been an inner turmoil in trying vainly to reconcile these two opposing views. This may have set him up to be particularly vulnerable to the heavy criticism he endured in the Army.
In summary,
Mr Burnham’s (sic) outstanding symptoms appear to indicate post-traumatic stress disorder as well as the co-morbidities of depression and paranoia.
… (T13, pp 57–58) (original emphasis)
16. A subsequent (undated) report of Dr German-Belmont states:
“ …
On the 2nd August 2006, I administered The CAQ (Clinical Analysis Questionnaire) for a second time. The results of Mr Bromham’s 2nd CAQ were:-
a. Normal Personality Traits:
The highest score was for Tension, where before it was Self-sufficiency, with Tension, Self-discipline, and Insecurity in the average range.
Self-sufficiency is now the second highest one together with Imagination, which depicts a certain amount of resourcefulness. His low score for Impulsivity depicting a prudent, sober and serious frame of mind, remains the same. He now has equally low scores for Boldness, Conformity and Shrewdness, as seen in a forthright, unpretentious person. Other low scores remain the same. These scores were for Warmth which depicts a reserved, detached, cool person, and Emotional Stability.
Clinical Factors:
The highest scores in the clinical factors were obtained in Paranoia, Hypochondriasis, Psychological Inadequacy, all the depression primaries, as well as Withdrawal and Anxious Depression. This latter characteristic correlates with his very high score for Tension.
As compared to his last test, where only Paranoia scored at this high level, this shows an increase in intensity of many more characteristics. However, his score for Agitation has decreased, and is now not at a significant level. His lowest score again was for Psychopathic Deviation, although now much lower than last time, so it is now at a normal level.
Second-Order Factors:
Mr Bromham still obtained a very high score for Depression and a slightly lower score than last time for Psychoticism. He obtained an even lower score for Extraversion than previously. He previously had two equally very low scores (Anxiety and Neuroticism) but his current score for Anxiety is now highly significant, whilst his low score for Neuroticism is slightly higher but still does not reach a significant level.
EXPLANATIONS & CONCLUSIONS:
(My findings are guided by the official diagnostic manual for psychiatric disorders – the DSM–IV – the professional literature, current research and my clinical judgment)
From the above results certain personality characteristics have been intensified, so although Mr Bromham appears to still be a prudent, serious man, he is now more anxious and withdrawn and more threat-sensitive than he used to be. He is still very suspicious of others, although his unreasonable preoccupation about this appears to have diminished. He still has a rigid control over impulsivity.
He is still very depressed and has a great preoccupation with his health. He is extremely orientated to his inner thoughts and feelings. This is confirmed by his extremely low score in Extraversion, which is in keeping with his fairly low score in Warmth, and reflects his wish to withdraw from others.
His continued low scores for Extraversion and Warmth, has led to problems with interpersonal relationship.
On a positive note, he is still capable of mature and prudent appraisals of a situation, which coupled with his lack of impulsivity would prevent him from any reckless acts that would endanger himself or others. Other positive points to note are that he still scored high in Self-sufficiency, and his average score now for Neuroticism points to a better adjustment in his perception of events and situations.
In conclusion, Mr Bromham has acquired more negative characteristics, whilst some of the previous ones have increased in intensity. The most important of these are his anxiety and tension, his continued suspiciousness of others, his pathological withdrawal from social interactions, and his strong feelings of persecution.” (T24) (original emphasis)
Dr Peter Burvill
17. A report of Dr Peter Burvill, Consultant Psychiatrist, dated 24 December 2004, to Dr Foong states as follows:
“ Thank you for referring Mr Bromham whom I saw on 15 December and 21 December 2004.
Mr Bromham joined the Australian Army in 1999, intending that the army be his future career. He was sent to East Timor in October 1999 as part of the 5/7 RA Regiment Infantry returning to Australia in May 2000. He was medically discharged from the Australian Army on October 4 2002, because of injuries to his right ankle sustained during his army service. He has an incapacity payment for his injured ankle through military compensation. He does not have any psychiatric entitlement related to his army service.
Mr Bromham gave me a clear history of Post Traumatic Stress Disorder (PTSD) related to his army service in East Timor. However he was reluctant to fully discuss the number of very stressful situations which he experienced while in East Timor, during which he thought that his life was in imminent danger. The PTSD is related to these events. Recently he had been attending Dr Rosemary German-Belmont, clinical psychologist, for treatment of his PTSD.
He has the following symptoms fulfilling the diagnostic criteria for Post Traumatic Stress Disorder (DSM-IV):
a.A number of very stressful situations while in Timor during which his life was threatened including
(i)Viewing a large number of ‘chopped up human bodies’ when he first arrived in Deli (sic), the capital city of East Timor,
(ii)An occasion when a fellow soldier nearly shot him by accident when they were cleaning their rifles. The other soldier accidentally discharged his rifle with the bullet narrowly missing Mr Bonham (sic).
(iii)Being bitten by an insect while out on patrol, resulting in extreme pain and being transported to a medical aid post in a very poor physical state, during which he thought he was going to die, and
(iv)Being called to cut down the decomposing decapitated head of a local Timorese man, causing Mr Bromham considerable distress.
b.Since arriving back from East Timor he has had recurrent nightmares, intrusive thoughts, and flashbacks of these very stressful events in East Timor. Though now less frequent, he still has these symptoms, experiencing nightmares two to three nights each week.
C-1He avoids any conversations about his dramatic (sic) experiences in East Timor.
C-2He actively avoids activities and places that might arouse recollections of East Timor experiences.
C-3He has feelings of detachment and estrangement from other people.
C-4He described a restricted array of affects, especially in showing close emotional feelings towards loved ones.
D-1He has persistent difficulty falling and staying asleep.
D-2He has a long history of irritability and outbursts of anger and verbal aggression.
D-3He has considerable difficulty concentrating.
D-4He gave me many examples of hypervigilance when out of the house, especially when accompanied by a large number of people, for example at shopping centres.
D-5He shows an exaggerated startle response to sudden unexpected noise.
EThe symptoms in B, C, and D above have been present since shortly after his return from East Timor when his mother commented that he was an entirely different person to that when he first joined the army and went to East Timor.
FHis PTSD causes clinically significant distress and impairment in his social functioning and in his interaction with other people.
GIn addition to the above classical symptoms of PTSD he has marked mood disturbances, at times becoming very depressed. …
…” (T14)
18. A report of Dr Burvill, dated 20 April 2005, to Dr J Yin, Medical Officer, Department of Veterans’ Affairs (“DVA”), states as follows:
“ …
I saw Mr Bromham on two occasions, on 15 December and 21 December 2004, on referral from his general practitioner, Dr LKS Fong (sic), for an opinion about his psychiatric state regarding the possibility that he had PTSD related to his experiences in East Timor.
PAST HISTORY
…
While serving in East Timor Mr Bromham had a number of very stressful situations during which he feared that his life was being threatened. These included:
While on patrol in East Timor he was bitten by an insect with resulting extreme pain and marked physical symptoms. The bite was to his left index finger. Following the bite he felt that his finger was in a vice. He was taken to an aid post in the back of an Armoured Personal (sic) Carrier (APC). While in the APC he began to convulse, was shaking violently and felt very ill. It took about 15 minutes in the back of the APC to reach the aid post. During this time he was in great pain, physically ill and felt that he was going to die. When he arrived at the aid post it took a considerable time for him to calm down. He was so frightened he was given intravenous and (sic) antihistamines at the aid post and admitted to hospital for two days observation.
Mr Bromham described an occasion when at the end of a final weapons testing, a fellow soldier while cleaning his weapon accidentally fired a shot which narrowly missed Mr Bromham. This occurred at the end of a very tiring 32-day patrol when they were wearing the same clothes, without opportunity to shower, whereas they were supposed to be in a three-day patrol in the jungle. Mr Bromham was terrified by this episode, believing that he could well have been shot.
He was one of a number of soldiers who were called when the local people found a decapitated head of a local Timorese male in a half decomposed state. He had to cut down the head and was considerably distressed by this for a number of days after the event.
He used to go on a number of night patrols, which involved walking down an alleyway with hedges on either side, which he described as a perfect ambush area in which they could have been attacked at any time. It was extremely dark and often their night vision equipment would not work. He was very frightened by these experiences, anticipating that he could be attacked and killed at any time.
When he first arrived in Dili, the capital of East Timor, he was involved in a situation where they saw a large number of ‘chopped up human bodies’, which he found very disturbing, especially as this was one of his first experiences of active duty outside of Australia.
Following these experiences in East Timor, and especially when he first arrived back from East Timor, he had recurrent nightmares, intrusive thoughts and flashbacks of these very stressful experiences in East Timor. These reactions were particularly related to the episode when he was bitten on the finger by a spider, on night patrol and when he nearly got shot by another soldier when they were cleaning their rifles at the end of gun practice. At each of these three instances he thought that his life was seriously threatened.
Immediately following his return from East Timor, Mr Bromham stayed with this mother. She commented afterwards about what a totally different person he was on his return, being very quiet and reclusive, compared with what he was before. At times he was very withdrawn and would not speak for days on end. With other people he was irritable, argumentative and easily frustrated, with frequent angry, verbally abusive outbursts. This led to many altercations with his brother, who had moved back into the family home after his marriage break-up.
At that time he was withdrawn, reluctant to go out of the house, became very anxious if in a crowd of people, and when he did go out was hypervigilant, especially at night. He avoided places that reminded him of East Timor, for example some places had a certain smell which reminded him of that location. He avoided any radio or television features of East Timor whenever possible, and was very reluctant to talk about his Timor experiences with other people. In fact he did not talk about any of these experiences until very recently when he attended a clinical psychologist in relation to his PTSD symptoms.
His sleep was very disturbed, with frequent nightmares of his stressful experiences. During the day he had flashbacks and intrusive thoughts of these experiences. His concentration was impaired. He avoided any very noisy places, as he found that he was very intolerant of noise, especially loud, sudden, unexpected noises. He was anxious, irritable and snappy with others. Increasingly he felt very unhappy, became depressed and had trouble expressing normal, emotional feelings towards his girlfriend.
There was no history of any excessive drinking, either in East Timor or on discharge. In fact Mr Bromham has avoided drinking all his life, partly due to his religious beliefs.
CURRENT SYMPTOMS
Mr Bromham has continued to have symptoms of Post Traumatic Stress Disorder since he was discharged from the army. These have lessened somewhat over time, but are still quite prominent. He avoids any conversation about his experiences in East Timor. He also actively avoids any activities or places that might arouse memories of East Timor. He has a feeling of detachment and estrangement from other people and has found it difficult to show emotional feelings towards loved ones. He has persistent difficulty in falling asleep and staying asleep. At least twice each week he has nightmares of various stressful East Timor experiences. During the day he has continued to have intrusive thoughts and occasional flashbacks about his experiences. He finds these recollections very distressing.
Since his return from East Timor he has been very irritable with outbursts of anger and verbal aggression. There has not been any physical aggression. Whenever possible he avoids being in large crowds, for example shopping centres make him anxious. When out of the house he is hypervigilant. He has considerable difficulty in concentrating. His tolerance to noise remains poor with an Exaggerated Startle Response to sudden unexpected noise. Generally he has been withdrawn, less socially active and avoiding other people wherever possible. He continues to experience depressive spells lasting up to two days, which at times are quite severe during which he has had active suicidal ideation. However his religious beliefs are very much against such behaviour.
BACKGROUND HISTORY
There was no history of any major adverse experiences in his childhood. At school he spent a second year in year 12. When he left school he worked in a variety of non-skilled workplaces prior to joining the army at the age of 19 years. He had hoped to make the army his career for life. There is no history of psychiatric illness.
PREMORBID PERSONALITY
Prior to going to East Timor he had many friends, liked outdoor activities and was very keen on sport. He enjoyed windsurfing and rock climbing. He had an outgoing personality by nature. He was a Buddhist by religion but most of his friends were not Buddhist and were involved in the outdoor, fun loving activities that he enjoyed. He did not smoke cigarettes or drink alcohol.
PAST TREATMENT
Until recently Mr Bromham has not had any specific treatment for his PTSD, partly because it was unrecognised. He has not had any medication although after I saw him, I wrote to his General Practitioner recommending that he be placed on Zoloft 100-150mg mane. In December (sic) his General Practitioner referred him to Dr Rosemary German-Belmont, Clinical Psychologist, for treatment of his PTSD. He continues to see her on a regular basis.
OPINION
In my opinion, Mr Bromham has the classical symptoms of Post Traumatic Stress Disorder, related to his traumatic experiences while in East Timor. Mr Bromham fulfils the DSM-IV criteria for Post Traumatic Stress Disorder as follows:
A.The number of very stressful situations experienced in East Timor have been described above. At least with three of these experiences he was in great fear that he would die or that he was exposed to a situation where death was very possible.
B.Since arriving back from East Timor he has had recurrent nightmares, intrusive thoughts and flashbacks of these stressful events. Although less frequently he still has these symptoms, experiencing nightmares two to three times each week and intrusive thoughts and flashbacks during the day.
C.(1) He avoids any conversation about his traumatic experiences in East Timor.
(2) He avoids activities and places that might arouse recollections of East Timor experiences.
(5) He has feelings of detachment and estrangement from other people.
(6) He described a restricted array of affects, especially showing close, emotional feelings towards loved ones.
D.(1) He has persistent difficulty falling and staying asleep.
(2) He has a long history of irritability and outbursts of anger and verbal aggression.
(3) He has considerable difficulty concentrating.
(4) He gave me many examples of hypervigilance when out of the house, especially when in the company of a large number of people, for example in shopping centres.
(5) He has an exaggerated startle response to sudden unexpected noise.
E.Symptoms in B, C and D above have been present since shortly after his return from East Timor. His mother commented that on return he was an entirely different person to that when he first joined the army and went to East Timor.
F.His PTSD caused clinically significant stress and impairment in his social functioning and in his interaction with other people.
G.In addition to the above classic symptoms of PTSD he has marked mood disturbances, at times becoming very depressed.
…”(Exhibit A5)
19. A letter from Dr Burvill, dated 6 August 2007, to Mr G Follington of the DVA states as follows:
“ …
You have requested that I, having reviewed my notes, provide you with as much information as is available on the various stressors mentioned to me by Mr Bromham. In doing so, I should point out that when Mr Bromham first described these stressors to me, he was psychiatrically very disturbed, was very reluctant to discuss his experiences in East Timor and had only ever discussed these experience (sic) with one other person, namely his Clinical Psychologist Dr Rosemary German-Belmont. Hence, under these circumstances his account of these incidents may have been less detailed than required by the Department of Veteran (sic) Affairs.
I will expand on each of these stressors in turn as follows:
1. Viewing a large number of ‘chopped up human bodies’.
Mr Bromham briefly mentioned that when he first arrived in Dili, East Timor, inexperienced in active warfare, he saw ‘chopped up human bodies’. He said that he and his fellow soldiers were emotionally upset by this experience. I did not consider that this fulfilled criteria A for the DSM-IV diagnostic criteria for PTSD, and did not base my diagnosis of this condition on the described stressor.
Mr Bromham himself mentioned this incident as a description of their introduction to active service in East Timor, not as a major stressor.
2. An occasion when a fellow soldier nearly shot him by accident.
This incident occurred at the end of a very tiring 32 day patrol when they were wearing the same clothes, without opportunity to shower. They had expected to be away on a three day patrol in the jungle prior to the 32 day patrol. He said that he was in a very small room with a fellow soldier, who was a friend of his, at the end of this patrol. They were talking and cleaning their weapons as part of a final weapons test to ensure that their weapons were in working order.
According to Mr Bromham his friend, without thinking, put a magazine in his rifle and when he went through the routine exercises, accidentally shot the bullet, which allegedly landed about one metre to one side of Mr Bromham. He described this as ‘too bloody close’. He said that he was stunned by this event and was considerably upset by the incident, when he felt that he could have been killed.
3. Being bitten by an insect.
Mr Bromham told me that while on a patrol in East Timor he was bitten on his left index finger by an insect, which resulted in extreme pain and marked physical symptoms. He felt that his finger was like being in a vice and described it as being the most painful experience he had ever had. He felt the pain and heat running up his left arm to his chest and then to the rest of the body. He was immediately placed in an Armed Personnel Carrier (APC) and taken to the first aid post, a journey of 15 minutes. While in the APC he began to convulse, was shaking violently and felt very ill. He thought that he was going to die. During this time he was very anxious, hyperventilating, and on arrival at the first aid post, it took a considerable time for him to calm down. He was given antihistamines at the first aid post and subsequently admitted to hospital for two days observation.
Mr Bromham described this as a very frightening experience, during which he felt that he was going to die. I considered this to fall well within the criteria A of the diagnostic criteria of PTSD.
4.Being called on to cut down the decomposing, decapitated head of a local Timorese man.
He said that he was part of a section which was called upon to secure a location in Deli (sic). The locals had found a decapitated head of a local Timorese male in a half decomposed state, tied to a tree. He and his fellow soldiers had time to get a prolonged look at the head.
In my earlier report I had mistakenly stated that Mr Bromham himself was required to cut down the head. This was my understanding of what he told me at the time, but I have subsequently learnt that it was not he who cut down the head from the tree, but somebody else. In looking at my notes there is no mention of him being required to cut down the head from the palm tree himself. What the note did say was that Mr Bromham felt very uncomfortable about this, had thoughts about the incident for several days thereafter, tried to keep himself very busy to evade the thoughts of that scene, and subsequently had many dreams/nightmares of the scene.
5. The night patrol – alley way incident.
This incident was not described in my letter to Dr Fong (sic), but was described on page 2 of my letter to Dr Yin.
Mr Bromham described a number of night patrol duties which they were required to carry out. Some of these were in ‘not very friendly areas’. He said that the surroundings and situations in which they often found themselves were very frightening. He listed as an example of the latter their being required to walk down an alley, with hedges on one side, which he considered to be a perfect potential ambush area. He felt that they could be attacked anywhere along this alley. It was extremely dark and often their night vision equipment would not work. He said that he was very frightened by these experiences, anticipating that they could be attacked and killed at any time. He subsequently had many flashbacks of this experience.
He did describe another location on night patrol, at which there were a lot of bullet holes in the walls, where obviously people had been executed there. The patrols were single person pickets lasting one and a half hours. He felt very uncomfortable in these situations. I am not sure whether these were separate incidents to those described under (5) above, or were a variant of the number 5 incident.
I am afraid the above is all the detail my notes give about these described stressful experiences of Mr Bromham in East Timor. I have described as far as possible Mr Bromham’s involvement in these events. Unfortunately the notes do not give accurate dates or locations of these events, other than that event 1 occurred shortly after he arrived in East Timor.
My notes document that Mr Bromham told me that he did not get on very well with the officer in charge of his section, or the section sergeant and, especially, the section corporal. I understand that the corporal was subsequently discharged from the Army dishonourably. Allegedly these superiors made his life very miserable while he was in east Timor, making him very unhappy and depressed for most of the time.
He said his superiors gave him all the very difficult jobs, allegedly bastardized him, used to pick on him, and insult him verbally. He said that he was scared of the corporal. According to Mr Bromham the basis of their dislike and ridicule of him was because he was a Buddhist, and often used to read Buddhist literature. Finally the corporal forbade him to ever read the literature again.” (Exhibit A3)
Dr Linden Easton
20. A report of Dr Linden Easton, Gastroenterologist, dated 4 November 2005, to Dr Foong states as follows:
“ Thank you very much for asking me to see Sheldon who is a 25 year old former Army Infantry Soldier who has Post Traumatic Stress disorder and is hoping to claim his bowel disturbance. He told me for the last 2½ -3 years his bowel pattern has changed and in the morning he uses his bowels 2-3 times. This is associated with a degree of urgency and if he is going out he needs to get up early. He very rarely has episodes of faecal incontinence and carries toilet paper and a change of clothes in the car with him all the time. He has some discomfort in the (L) side of his abdomen; there is no rectal blood or mucous but the stools are always loose. He has no bloating, excessive flatus, nor feeling of incomplete evacuation. The stool frequency increases with stress and he is quite aware of this. He also feels that he has developed this in the same time frame that he has had Post Traumatic Stress Disorder. He sees Professor Burvill for this and currently receives a Pension from the Department of Veterans’ Affairs for this and also the problems with his (R) ankle and previous malaria.
…
I think Sheldon’s symptoms are highly suggestive of irritable bowel syndrome related to the Post Traumatic Stress disorder. …” (T17)
21. A letter from Dr Easton, dated 22 March 2006, to Dr Foong states as follows:
“ This is just a note to let you know that I saw Sheldon today. He is still having similar symptoms in relation to his gastrointestinal tract and I have no doubt that he has irritable bowel related to the post traumatic stress disorder. …” (T23)
22. A letter from Dr Easton, dated 10 June 2009, to the applicant’s solicitors states as follows:
“ I reply to your request for my opinion in relation to Sheldon Robert Bromham. I note the report by Dr Peter McCarthy who has diagnosed Mr Bromham with panic disorder with agoraphobia in partial remission, major depressive disorder of moderate severity in remission and a personality disorder. I do consider that the conditions described in Mr Bromham’s case could be associated with irritable bowel syndrome …” (Exhibit A6)
Dr Alastair Tulloch
23. A letter from Dr Alastair Tulloch, Urological Surgeon, dated 28 November 2005, to Dr Foong states as follows:
“ Thank you for referring Sheldon with his frequency and urgency.
I’m sure that this is related to stress, as he describes the first occasion as being when he was in East Timor and had urge incontinence.
…” (T19)
The evidence of the medical witnesses
Dr Oleh Kay
24. Dr Oleh Kay, Psychiatrist, provided a report, dated 23 June 2009, to the applicant’s solicitors which states as follows:
“ In reply to your letter 5 June 2009 I confirm that I am continuing to treat Mr Bromham. As you are aware, I became Mr Bromham’s treating psychiatrist following the retirement of his former treating psychiatrist Prof Peter Burvill. Mr Bromham has consulted me on the following occasions: 14 March & 15 April 2008, 8 January, 2 Feb, 3 March, 31 March, 6 May, 18 May and 4 June 2009. Mr Bromham remains on antidepressant medication in the form of venlafaxine 300 mg daily and also neulactil 2.5 mg tds. He is also on medication for erectile dysfunction, an hypnotic and further medication for gastro/esophageal reflux disease.
I am Mr Bromham’s treating psychiatrist and am ethically limited as to what comments I can make in relation to your client’s medico/legal issues with MCRS. I thank you for forwarding me a copy of my colleague Dr Peter McCarthy’s report of May 2009. Dr McCarthy’s assessment is clearly formed from access to considerable documentation to which I have not been privy. Furthermore, given that I am treating Mr Bromham, it would clearly be unethical for me to give a forensic assessment akin to Dr McCarthy’s. However, I am of the opinion that Mr Bromham does suffer from a psychiatric disorder and I do believe that his service in East Timor has contributed to his psychiatric disorder. I am also very much of the opinion, that he did not suffer from ADHD in childhood but did have a specific learning disability. My understanding is that he did receive treatment from Dr Ken Whiting and that he was also assessed by a psychologist. However, my understanding is that these were quite separate to each other.
Mr Bromham is on antidepressant medication and being on medication would modify the presentation of his psychiatric symptoms. On the times that I have examined him your client’s presentation has essentially been normal and my contact with him being relatively short appointments aimed at monitoring his pharmacotherapy and providing non specific support. I note that Dr McCarthy makes a diagnosis of Personality Disorder Not Otherwise Specified but I gather from his report that apart from an incident when Mr Bromham was 18 years old when he was involved in a family fracas where crockery was broken has little evidence of personality dysfunction in childhood and adolescence. Personality diagnoses are notoriously difficult to make and Mr Bromham’s personality dysfunction may well be attributable to another psychiatric condition such as chronic Post Traumatic Stress Disorder.
In terms of Dr McCarthy’s diagnosis of Panic Disorder with Agoraphobia in Partial Remission, Major Depressive Disorder of moderate severity in remission, Adjustment Disorder with anxiety and depressed mood in remission the evidence supports Dr McCarthy’s diagnosis but all of these diagnoses may be subsumed under another psychiatric diagnosis of Post Traumatic Stress Disorder.
I respond to your questions seriatim:
1.Do you believe that Mr Bromham misled you and/or Dr Burvill in relation to the four incidents in Timor?
I have no evidence of Mr Bromham either deliberately or accidentally misleading me. And I presume that he did not mislead Prof Burvill.
2. Dr McCarthy diagnosed Mr Bromham with
· Panic Disorder with Agoraphobia in Partial Remission (DSM–IV 300.21)
· Major Depressive Disorder of Moderate Severity in Remission (DSM-IV 296.26)
· Personality Disorder NOT Otherwise Specified (DSM-IV 301.9)
a. Do you agree with this diagnosis?
Yes.
b.Is this diagnosis consistent with a diagnosis of Post Traumatic Stress Disorder?
Yes.
3. The four claimed stressors are
a. viewing chopped up bodies
b. shooting incident
c. insect bite
d. human head in a tree
Can you advise if:
(i) each of the stressors is individually capable of leading to PTSD
Each of the stressor (sic), other than c. is capable of leading to PTSD. I believe the viewing of chopped up bodies, experiencing an accidental discharge and viewing a human head in a tree as individually capable of leading to PTSD. But I do not believe the insect bite can lead to PTSD.
(ii) any combination of the stressors is capable of leading to PTSD
Any combination of the stressors increases the risk of developing PTSD.
(ii)(sic) it is necessary for all 4 stressors to be suffered to lead to PTSD
It is not necessary for all 4 stressors to be suffered to lead to PTSD.
… (Exhibit A1)
25. A letter from Dr Kay, dated 8 May 2009, addressed “To whom it may concern” states as follows:
“ This is to certify that I am now responsible for Mr Bromham’s psychiatric care as of 14 March 2008. Previously he had been under the care of Professor Peter Burvill now retired.
Professor Burvill had been treating Mr Bromham for Post Traumatic Stress Disorder arising as a consequence of his military service and in reference to his diagnosis he prepared a report dated 6 August 2007. I have studied my esteemed colleague’s report and am in total agreeance with it. I understand Mr Bromham was treated for Adult Attention Deficit Disorder by my colleague Dr Ken Whiting.
…
I am of the confident psychiatric opinion that there is no relationship to Mr Bromham’s childhood Attention Deficit Disorder and the subsequent development of chronic Post Traumatic Stress Disorder. I note that he ceased treatment for his ADD before adulthood, served in the Army not receiving any treatment for the disorder and that it was during his military service in East Timor that he was exposed to traumatic events that gave rise to his PTSD.
…” (Exhibit A2)
26. Dr Kay’s oral evidence may be summarised as follows:
· when the applicant commenced to consult him in March 2008 the applicant’s condition had already been diagnosed by Professor Burvill, and the applicant consulted him for treatment of that condition;
· his diagnosis of the applicant’s condition as post traumatic stress disorder was based on his findings on examination of the applicant and on Professor Burvill’s opinion;
· in the course of the applicant’s consultations with him the applicant referred to “very few” incidents in East Timor;
· because the applicant had discussed the relevant incidents with Professor Burvill he did not “go over the past again” with the applicant;
· the alleged “chopped up bodies” incident and the “human head in the tree” incident may not have happened, but that does not affect his opinion that the applicant has post traumatic stress disorder;
· as regards whether each of the four claimed incidents is capable of leading to post traumatic stress disorder, the “chopped up bodies” incident would be “at the top of the list”, whereas the “insect bite” incident would be ranked “last”;
· the “insect bite” incident, on its own, could “possibly” lead to post traumatic stress disorder;
· the “accidental rifle discharge” incident of itself would have been capable of leading to the applicant’s post traumatic stress disorder;
· the totality of the applicant’s experience in the Army must be taken into account in assessing the causation of his post traumatic stress disorder.
Dr Peter McCarthy
27. Dr Peter McCarthy, Psychiatrist, provided a report, dated 16 May 2009, to the respondent’s solicitors. In that report Dr McCarthy noted that he had interviewed the applicant on 2 and 23 February 2009, each interview being of over 1½ hours’ duration. He referred to the applicant’s social and employment history, and his initial military history, and he then addressed the applicant’s East Timor experience and his subsequent military career as follows:
“ East Timor experience
Mr Bromham says that after six months of further infantry unit training in Darwin he deployed with his battalion to East Timor in late 1999. The documentation indicates he was in East Timor from 11 October 1999 to April 2000. Mr Bromham says his unit travelled to East Timor by Military Catamaran and landed at the Port of Dili two weeks after 2Bn and 3Bn arrived. He says his unit was stationed at Dili for three weeks and then B company was sent to a border town just after New Year’s Eve, the New Year being the year 2000. He says that after five months service in country he had military leave in Perth. He says he developed malaria, presumably acquired in East Timor and lost 10kg of weight in one week. He was hospitalised in Darwin for a week and then returned to Dili where for a further week he recuperated at the Battalion Headquarter and Echelon Area, cleaning gear and similar activities. He says he was feeling relatively well on his return to Dili and he soon returned to his normal duties as a Rifleman with B company for another two to 3 months of service. He says that a standard week of military activities would consist of three days patrolling followed by three days of picket or base duties and one day of stand down.
He says it was on his return to East Timor that he saw a severed head in a tree in town. He continued his duties until he returned with his unit to Australia after seven months service in East Timor.
Mr Bromham describes a ‘bug bite’ that he says occurred in East Timor. He says he was cleaning up a local area as part of his security duties when he picked up a piece of wood and felt pain in his finger. He saw the NCO who told him to wash his hands and go inside. He says he remembers the heat of the insect bite spreading up his arm. He describes the injury in physical terms and doesn’t describe any severe emotional response at the time although he claims that the experience contributed to his later alleged Post Traumatic Stress Disorder.
Subsequent military career
Mr Bromham says that on his return to Australia he continued his usual unit military duties in Darwin until he injured his right ankle in October 2000 when he had an accident while riding a motorbike as part of the Army Motocross Team. He says his throttle stuck and he crashed fracturing his right ankle talus bone and an associated malleolus. He says the Regimental Medical Officer organised physiotherapy, an ultrasound investigation, an ankle MRI scan and a bone scan that demonstrated an osteochondral lesion on the lateral aspect of the talar dome without ligament injuries. After a review by the Darwin orthopaedic specialist Dr Matthew Sharland, Mr Bromham came to an arthroscopy in November 2000. In his letter of 3 April 2001, Dr Sharland reported that Mr Bromham had improved considerably, was able to walk with no difficulty and had no real pain at rest but continued to be unable to run or carry heavy packs. He concluded that Mr Bromham was unable to perform at work (as an infantry soldier).
Mr Bromham had further surgery in 2001 in Brisbane. A Brisbane Mater Hospital Operation Report dated 6th July 2001 indicates that Mr Bromham had a right ankle arthroscopy, synovectomy and debridement of the anterior edge of the right tibia and fibula and internal fixation by insertion of a small nail for stabilisation of osteochondral talar fragment. He was initially followed up in Brisbane by the orthopaedic surgeon Dr Peter Johnston who performed the surgical procedure. Mr Bromham says he was told he would recover but that he would never run again.
The Army then medically discharged Mr Bromham as medically unfit for service because his (sic) right ankle injury. He says there was no diagnosed psychiatric element to his reluctant medical discharge.
Mr Bromham says that between October 2001 and his medical discharge in October 2002 he had problems getting on with others in his Company. He says people stopped talking to him and his superiors treated him unnecessarily harshly. He says that while recuperating from his injury and using crutches he was charged with being absent without leave when he was ten minutes late for work. He says that in 2001 he was also charged with losing two ammunition magazines that he asserts he was never issued.
He says (the culture of) his unit changed in East Timor with people becoming uptight, more serious and not happy. He says he recovered enough from his ankle surgery to return to his full military duties in Darwin with 5 Pl for three months although it appears that in fact prior to discharge he was posted to Battalion headquarters where he performed office duties in the Battalion’s Orderly Room for a month. He says that he was then posted to a different infantry company as the rest of his company was training to return to East Timor.
Much of 2001 and 2002 was taken up by Mr Bromham pursuing various grievances. He says he does not drink alcohol and therefore in East Timor he would give his beer rations away to his fellow soldiers. Mr Bromham says that four days prior to the unit leaving Timor an officer, his platoon Lt shouted at him. He says he was appalled and offended that an officer should shout at him, an act he interpreted as verbal abuse and harassment. It appears the officer … instructed Mr Bromham not to give away his beer ration to fellow soldiers. Mr Bromham said that he was half asleep at the time and can’t quite recall what the officer said. Mr Bromham says that on the advice of his corporal, … he decided to attempt to have the officer charged with a military offence for shouting at him (in a theatre of operations over a matter to do with the disposal of alcohol). Mr Bromham claims that when he attempted to have the platoon officer charged he was threatened by his Platoon Sergeant and subsequently had difficulties with the other members of the unit generally. …”
28. Dr McCarthy’s report then refers to the applicant’s history of psychiatric symptoms and his post-discharge progress as follows:
“ History of Psychiatric Symptoms
Mr Bromham says he became anxious, angry and irritable during what he describes as a rough final one and a half years in the army. He claims he told the ‘Psyches’ that he was ‘losing it’.
He says that on his discharge he was a ‘bag of nerves’ and ‘couldn’t think straight’. He says he wanted to stay in the Army but that he was having a hard time with the command hierarchy who he believes thought he was ‘faking’ his ankle injury. He says that on his last weekend in the army he was charged again with being absent without leave for two days. He says he was entitled to remote locality leave and had wanted to go to Thailand for two days so that he filled out a leave application form which the Company Sergeant Major declined to sign. Mr Bromham says that he began visiting Thailand with two Army friends in 2001 and has since returned many times.
Post discharge progress
Mr Bromham says that in October 2002 he returned to Perth in receipt of a disability pension for his ankle. He says he felt angry and irritable and he still does today. He recalls that for the first twelve months after his return to Australia he was on edge and depressed. He says he has always been jumpy. There is no history of bruxism (anxiety related grinding of teeth).
He says that soon after his return to Perth he clashed with his brother who shouted at him that he left the army because he ‘couldn’t hack it’. He says he suffered panic attacks and he described agoraphobic symptoms all of which have also improved. There was no melancholia, psychotic symptoms or diurnal variation of his depressive symptoms. Despite his descriptions of emotional strife, he was able to have a three-month relationship with a Thai lady around the time of his discharge.
He said he wanted to become a bodyguard in his post army civilian life and for that purpose he attended a bodyguard course in Darwin prior to his military discharge. In Perth he was referred to the Commonwealth Rehabilitation Service for rehabilitation and found to his disappointment that they would not approve his attending any courses requiring arduous physical activity such as bodyguard courses. He continued to have some difficulties with his right ankle for which he briefly saw a local doctor at Port Kennedy although he soon returned to the care of his usual family doctor, Dr Foong.
In 2003 Mr Bromham lived with his mother and remained/became depressed, eventually with suicidal thoughts. He says that his life had become a mess and he felt stressed. He says he couldn’t take the rehabilitation efforts of the CRS anymore and felt pushed into a hole. Despite these memories of significant depression and anxiety his ankle appeared to improve sufficiently for him to pursue windsurfing or ride a motorbike as he ‘tried to get on with my life’. He mentions that in 2004 he went to Nepal with Nigel, his ex-army friend who served with him in his battalion. He continued living with his mother in early 2004 until he went to Brisbane for three months to stay with an army friend. That didn’t work out and he returned to Perth where he continued to have ‘medical issues’.
He says his mother said she ‘had had enough’ of him and advised him to see his doctor who referred him to the clinical psychologist, Dr Rosemary German-Belmont …”
29. Dr McCarthy’s report then refers to the applicant’s treatment by Dr German-Belmont and subsequently by Dr Burvill, and continues:
“ He says his Post Traumatic Stress Disorder originated from the unauthorised discharge (of a firearm) in East Timor in close proximity to himself. He says a fellow soldier was cleaning his weapon which then went off (‘and just missed my head by 2 to 3 m’) causing Mr Bromham stress. Mr Bromham claims that as he was supposed to supervise the other soldier cleaning his weapon he was charged over the matter and received a reprimand as punishment. He says the offending private, now a sergeant at 13 Infantry Brigade at Karrakatta WA, received a $1000 fine and a severe reprimand. …
Mr Bromham says that he has now established a relationship with another lady in Thailand and that during 2007 and 2008 he has regularly flown back and forth between Australia and Thailand. He says he now spends six or more months a year with his girlfriend/fiancé/carer at Bangkok, Thailand.”
30. Dr McCarthy’s report then refers to the applicant’s past medical history, and continues:
“ Current situation
Mr Bromham now spends six months of the year living with his mother and the other six or seven months of the year living with his girlfriend in Bangkok. He says that he cannot work because of the injury to his right ankle and because he does not like crowds or meeting new people. Despite his complaints of pain he is yet to see a pain management specialist.
He says he has suffered from panic attacks, characterised by anxiety, palpitations and sweating, which improved with treatment by Dr Burvill. He says he still suffers panic attacks when meeting people in authority or going to new places although he had not suffered a panic attack for four weeks prior to the interview. He is able to shop but he still has some agoraphobic symptoms. He says his depression is much better on medications and he does not now suffer persistent depression or anxiety symptoms although he says he is still easy (sic) stressed. He described some obsessive-compulsive symptoms involving counting which he says he noticed on leaving the Army.
He says his sleep is still disturbed and he may lay awake for one or two hours thinking about ‘stuff’. This stuff mainly refers to his current MCRS claim and related issues. He says he used to dream three or four times a week and now only dreams about once a week. He says his dreams used to involve mutilated bodies, machete wounds and mutilated children with whom he came into contact when doing health checks in East Timor.
He said he also wakes regularly at night to pass year (sic) urine. He says he suffers Irritable Bladder Syndrome by which he means nocturia and urge urinary incontinence. He says this began in East Timor when his finger was bitten.
He says his memory ‘is like a sieve’ and his concentration is ‘not too great’ although he attends to his own bills and household administration. His appetite and weight are now satisfactory and he did not report any active bowel problems or associated abdominal pain. He says his libido is poor. … There are no vegetative mood symptoms. He says he has chronic suicidal thoughts that have improved and he continues to see his clinical psychologist when he is in Australia to make sure he ‘is still here’. He denies any suicide attempts or self-mutilation.
…
Opinion
This man is suffering from:
·Panic Disorder with Agoraphobia in Partial Remission (DSM-IV 300.21).
·Major Depressive Disorder of Moderate Severity in Remission (DSM-IV 296.26).
·Personality Disorder Not Otherwise Specified (DSM-IV 301.9).
If his history and the severity of his claimed stressors were accepted at face value one would consider a Chronic Post Traumatic Stress Disorder in Partial Remission.”
31. Dr McCarthy’s report then addresses numerous requests and questions asked of him by the respondent’s solicitors, including the following:
“ …
7.Please advise whether Mr Bromham suffered from a diagnosable psychiatric condition during his service.
If we were to accept Mr Bromham’s current claims then he developed Severe Post Traumatic Stress Disorder during his service.
If we accept his previous claims of distress over bullying in the army over his ‘Buddhist’ beliefs then a more appropriate diagnosis is an Adjustment Disorder with Anxiety and Depressed Mood.
I don’t believe he has suffered or is suffering from a Chronic Post Traumatic Stress Disorder. He may have suffered an Adjustment Disorder with Anxiety and Depressed Mood when he was almost ostracised from the unit after he attempted to have his officer charged and after another unit matters (sic).
The documentation suggests he experienced a panic attack when he suffered a suspected spider bite.
…
10.Mr Bromham claimed he suffered from Post Traumatic Stress Disorder (PTSD) as a result of the service. Please state:
10.1Whether Mr Bromham currently suffers from PTSD or any other psychiatric condition. If so:
I do not believe Mr Bromham now suffers from a Post Traumatic Stress Disorder or that he ever did. A Panic Attack over a possible spider bite does not constitute an acute or a chronic post traumatic stress disorder.
a. What is the diagnosis of his current condition?
·Panic disorder with agoraphobia in partial remission.
·Major depressive disorder of moderate severity in remission.
·Adjustment disorder with anxiety and depressed mood in remission.
·Personality disorder, not otherwise specified.
…
d. Is Mr Bromham’s current condition a continuation of his previous condition or is it the (sic) new condition?
I believe this gentleman’s current psychiatric symptoms represent current issues and are not a continuation of any psychiatric disorder he developed during his military service. I believe that behind most of his psychiatric difficulties over the years has been underlying personality disorder. A personality disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence and early adulthood, is stable over time and leads to distress or impairment. I have described his personality disorder as non-specific as he had several different personality traits including those of a narcissistic, anxious and avoidant nature.
…
15.Mr Bromham claims to be considerably handicapped and is incapacitated for all forms of employment, however the summonsed documents of Dr German-Belmont and the Read Street Medical Centre revealed that Mr Bromham:
- Has a girlfriend in Thailand.
- Has been in this relationship a significant period of time.
- Regularly travels to Thailand unaccompanied.
- Got engaged in 2007 to his girlfriend in Thailand.
- Whilst in Thailand he is able to undertake activities as tourist (sic).
- Claimed that his goal (in 2006) was to ‘buy land, set up a holiday home 100 kilometres north of Phuket, learn the language (Thai) and learn to relax’.
- Recently was able to, whilst in Thailand, go to the gym, go to Tae Kwon Do, have dinner out at a shopping centre and attending the temple (with the monks).
- Recently considered setting up a bus company with his uncle in Thailand.
In your opinion, given the above, please state:
15.1Whether Mr Bromham suffers from PTSD and/or any other significant psychiatric condition? Please state your reasons.
I have discussed this question somewhat above. The evidence indicates this gentleman did have an insect bite followed by a panic attack in East Timor. This settled overnight. He may have been exposed to an unauthorised discharge in East Timor. Unauthorised discharges were not uncommon in East Timor in the campaign. The other claimed stressors have not been verified in the circumstances where one would expect to be able to find some verification. I don’t think the two possible likely stressors were sufficiently severe to cause chronic post traumatic stress disorder and certainly not severe enough to cause a chronic incapacitating psychiatric disorder. He describes nightmares over experiences that he does not appear to have experienced. I don’t doubt he has suffered from anxiety and depression since discharge, or least (sic) since 2003/2004. Despite his assertions I don’t find any evidence from the documentation, in circumstances where I would expect to find such evidence, that he was suffering from Chronic Post Traumatic Stress Disorder before or after his discharge. His general practitioner’s notes suggest he was not troubled by significant psychiatric symptoms until two years or more after discharge. I should add that Buddhist or quasi-Buddhist beliefs are not at all uncommon in serving or retired soldiers in my considerable experience.
…” (Exhibit R6)
32. In his oral evidence Dr McCarthy adhered to the opinions he expressed in his abovementioned report, and it is unnecessary to refer in detail to that evidence in these reasons.
The evidence of Rory Kelliher
33. Mr Kelliher confirmed that he had made a statutory declaration on 19 July 2008 whose contents are as follows:
“ During my first deployment to East Timor in 1999-2000, I was cleaning my rifle in a room of a building with Sheldon Bromham. I was talking to Sheldon about going home to Australia and what we would be doing on leave. He was sitting approximately 1m to my front.
During the conversation I re-assembled my F88 weapon. Without realising that I had put the magazine on the rifle I pointed it 45 degrees and carried out the final function test. This process involved me cocking the weapon and firing the action.
Due to the magazine containing live rounds being attached to the weapon the process chambered a round and I fired it into the ceiling of the building. I immediately unloaded and cleared my weapon then stripped it down for inspection. Members of my section ran into the room and the weapon was inspected by my (sic) SGT Milligan my Platoon Sergeant.
I pleaded guilty to the charge of unlawful discharge of a weapon and fined (sic) $1000. The charge was heard by LT COL Gould in East Timor. I cannot remember the date of the incident nor the exact location but it was close to the border of East/West Timor post near the end of our deployment.
…” (Exhibit A4)
34. In his oral evidence Mr Kelliher confirmed that the incident referred to in his abovementioned statutory declaration occurred on 29 March 2000. He said that on that occasion he and the applicant were sitting on the floor of the room facing each other, about 1 – 2 metres apart, with their legs “splayed out” in front of them and their feet “not quite touching” each other. He said that he was holding his rifle at an angle of 45˚ and the barrel was not pointed in the direction of the applicant but was pointed “slightly to the left” of the applicant. He described the room as approximately 2 – 2½ metres wide and approximately 3 – 5 metres long with concrete walls and floor and a corrugated iron roof supported by wooden columns. He said that, when the rifle discharged, the bullet lodged at the top of one of the wooden columns near the roof.
The evidence of Colonel Peter Langford (Rtd)
35. Colonel Langford confirmed that, following a request by the DVA, he, on behalf of Writeway Research Service, undertook research into four incidents which the applicant claimed to have experienced during his service in East Timor from 11 October 1999 to 10 April 2000, namely:
“ Contention 1
Viewing a large number of ‘chopped up human bodies’ in a well when he first arrived in Dili.
Contention 2
A PTE Kalliher (sic) accidentally discharged his rifle while cleaning it and the bullet narrowly missed him.
Contention 3
Being bitten by an insect when on patrol resulting in extreme pain and being taken unconscious to the field hospital/aid post in Balibo in a very poor physical state, during which he thought he was going to die.
Contention 4
On the coast road going out to the Jesus statue being required to cut down the decomposing head of a local Timorese man, causing him considerable distress.”
Colonel Langford confirmed that he provided a report, dated 27 April 2007, to the DVA which concluded with the following summary of his research findings:
“a. Contention 1. The Veteran did not come into contact with human remains in Dili as claimed, but it is possible that he did so at Liquica.
b. Contention 2. The incident as described by the Veteran did not occur.
c.Contention 3. The Veteran was bitten by an insect but that he did not lose consciousness and that the incident was not life threatening as claimed.
d.Contention 4. The incident as described by the Veteran did not occur.” (T42)
Colonel Langford also confirmed that his findings had been based on statements provided by the officer who commanded B Coy in East Timor from October 1999 to early January 2000, the applicant’s Platoon Commander in East Timor, and the applicant’s Section Commander in East Timor.
36. Following receipt of correspondence from the applicant and from the respondent’s solicitors, Colonel Langford provided a supplementary report, dated 27 October 2009, to the respondent’s solicitors. In that report Colonel Langford referred to (inter alia) the statutory declaration of Rory Kelliher (see paragraph 33 above) and a Department of Defence “Summary Proceedings Report” which recorded that Pte Rory Kelliher had been charged with negligently causing a rifle to discharge on 29 March 2000, convicted and fined $1,000 on 31 March 2000, and that the applicant was a witness to that event. Colonel Langford also referred to a witness statement of the applicant, dated 30 March 2000, which states as follows:
“ At 0700hrs on the 29th March 2000 I, 5803404 PTE S R Bromham was sitting in a room in the village of Biamarae with 5803401 PTE R D Kelliher, who was conducting his final function test when the weapon discharged. 5803401 PTE R D Kelliher then cleared the weapon then put it on the ground. I had not noticed if he did or did not have a magazine on his weapon.”
In his supplementary report Colonel Langford concluded:
“ 9. Based on the Summary Proceedings Report it is clear that PTE Kelliher did have a UD (unauthorised discharge) in the presence of the Veteran, however the Researcher is unable to determine whether the shot narrowly missed him.” (Exhibit R5)
Additional evidence
37. Additional relevant material contained in the T Documents will be referred to in the course of the following analysis.
Analysis
Is the applicant presently suffering from, or has he at any material time suffered from, post traumatic stress disorder?
38. The applicant’s case is that he experienced four incidents in the course of his military service in East Timor which individually or collectively resulted in his contracting post traumatic stress disorder. Those incidents may be described as follows:
·the viewing of human remains in a well;
·the viewing of a human head being recovered from a tree;
·being bitten on the finger by an unidentified insect; and
·the accidental unauthorised discharge of a rifle by a fellow soldier in close proximity.
The viewing of human remains in a well
39. The applicant’s evidence was that this incident occurred within the first three weeks of his service in East Timor, that is, before the end of October 1999. His evidence was that he and a few other section members used flashlights to look down a deep well and they saw something at the bottom of the well but they were not entirely sure what it was although he “believed” or “thought” he saw “human remains” and it was “possible” that he saw “maybe an arm or leg”. The applicant, however, did not refer in his evidence to the nature of his personal response to experiencing that incident.
40. Dr Burvill, who diagnosed the applicant’s condition as post traumatic stress disorder in December 2004, in his reports consistently described this incident as “viewing a large number of ‘chopped up human bodies’” – a description which the applicant readily acknowledged in his evidence was “not correct at all” and was an “overstatement” and an “exaggeration” (see transcript, p 25), and which he denied ever saying to Dr Burvill (despite Dr Burvill’s use of quotation marks when referring to “chopped up human bodies” in his reports). In his report of 20 April 2005 (see paragraph 18 above) Dr Burvill stated that the applicant had found this experience “very disturbing”, and in his report of 6 August 2007 (see paragraph 19 above) he stated that the applicant said that he and his fellow soldiers were “emotionally upset” by this experience. In the latter report, however, Dr Burvill, notwithstanding his apparently exaggerated understanding of that incident, stated:
“ I did not consider that this fulfilled criteria A for the DSM-IV diagnostic criteria for PTSD, and did not base my diagnosis of this condition on the described stressor.”
[The Tribunal notes that criterion A of the diagnostic criteria in respect of post traumatic stress disorder, as set out in American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM-IV”), is as follows:
“A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror.”]
41. Dr Kay, in his report of 23 June 2009 (see paragraph 24 above), opined that this incident, which was described as “viewing chopped up bodies”, was “capable of leading to PTSD”. In his report of 8 May 2009 (see paragraph 25 above), however, Dr Kay stated that he had “studied” Dr Burvill’s abovementioned report of 6 August 2007 and was “in total agreeance with it”. In his oral evidence Dr Kay implied that he had not taken a full history from the applicant because the applicant had previously discussed the relevant incidents with Dr Burvill (whom Dr Kay succeeded as the applicant’s treating psychiatrist), and he was prepared to acknowledge that the “chopped up bodies” incident “may not have happened”.
42. Dr McCarthy, who opined in his very lengthy report of 16 May 2009 (see paragraphs 27–31 above) that the applicant has not suffered, and is not presently suffering, from post traumatic stress disorder, did not refer to this incident (although he did refer to the other three abovementioned incidents).
43. The Tribunal agrees with the opinion of Dr Burvill, as expressed in his abovementioned report of 6 August 2007, that this incident (assuming that it did occur) does not satisfy criterion A of the diagnostic criteria in respect of post traumatic stress disorder set out in DSM-IV. Having regard to Dr Burvill’s reports of 20 April 2005 and 6 August 2007, the Tribunal is not satisfied that the applicant’s response to what he believed he saw at the bottom of the well involved “intense fear, helplessness, or horror” as required by criterion A(2). The Tribunal is instead satisfied, having regard to Dr Burvill’s abovementioned reports, that the applicant’s relevant response, as described by him to Dr Burvill, was that he was “very disturbed” and “emotionally upset” – a response which, in the Tribunal’s opinion, falls far short of the kinds of severe responses referred to in criterion A(2).
The viewing of a human head being recovered from a tree
44. The applicant’s evidence was that this incident also occurred early in his service in East Timor – probably within the first two weeks. His evidence was that he and the other soldiers in his section were swimming at a beach which was near the relevant location and they were called upon to provide security for the military police while the latter recovered the head from the tree. The applicant, however, did not refer in his evidence to the nature of his personal response to experiencing that incident.
45. Dr Burvill, in his report of 20 April 2005, recorded that the applicant “had to cut down the head” and that he was “considerably distressed by this for a number of days after the event”. In his report of 6 August 2007, however, Dr Burvill acknowledged that the statement, in his previous report, that the applicant was required to cut down the head was incorrect, and he referred to his clinical notes which recorded that the applicant “felt very uncomfortable” about the incident.
46. Dr Kay, in his report of 23 June 2009, opined that “viewing a human head in a tree” was “capable of leading to PTSD”. In his oral evidence, however, Dr Kay was prepared to acknowledge that this incident “may not have happened” (see also paragraph 41 above).
47. The Tribunal is not satisfied, having regard to Dr Burvill’s reports of 20 April 2005 and 6 August 2007, that the applicant’s response to this incident (assuming that it did occur) involved “intense fear, helplessness or horror” as required by criterion A(2) of the diagnostic criteria in respect of post traumatic stress disorder set out in DSM-IV. The Tribunal is instead satisfied, having regard to Dr Burvill’s abovementioned reports, that the applicant’s relevant response, as described by him to Dr Burvill, was that he was “considerably distressed” and “felt very uncomfortable” – a response which, in the Tribunal’s opinion, falls far short of the kinds of severe responses referred to in criterion A(2).
Being bitten on the finger by an unidentified insect
48. The applicant’s evidence was that he was bitten on the finger by an insect when he picked up a piece of wood while cleaning up an area, and he immediately felt “excruciating” pain and a “burning sensation running up [his] arm” and he “started to feel it going to [his] chest” and was “having problems breathing” and he “started to hyperventilate”.
49. Contemporaneous medical records, which are in evidence (T5, p37, T6, T7), state that:
· on 5 January 2000 the applicant was bitten by an “unknown arthropod” and developed pain in a finger and an ache along the left arm;
· he became “acutely anxious” and presented “hyperventilating and agitated”;
· he “settled with reassurance” and was given 50mg of Phenergan;
· he had “no airway symptoms at any time”;
· he was admitted for overnight observation;
· he settled overnight and there were nil sequelae;
· on 6 January 2000 he was returned to his unit.
It is common ground that these medical records relate to the present incident.
50. Dr Burvill, in his reports of 20 April 2005 and 6 August 2007, when setting out the applicant’s history in relation to this incident, noted that the applicant, while being transported to a first aid post in an Armoured Personnel Carrier (a journey of 15 minutes’ duration) immediately after being bitten, “began to convulse, was shaking violently and felt very ill” and thought that he was “going to die”. In his report of 6 August 2007 Dr Burvill added:
“ Mr Bromham described this as a very frightening experience, during which he felt that he was going to die. I considered this to fall well within the criteria (sic) A of the diagnostic criteria of PTSD.”
51. Although (as previously noted) Dr Kay, in his report of 8 May 2009, expressed “total agreeance” with Dr Burvill’s abovementioned report of 6 August 2007, he nevertheless stated, in his report of 23 June 2009;
“ … I do not believe the insect bite can lead to PTSD.”
In his oral evidence, however, Dr Kay departed somewhat from that opinion and expressed the view that the insect bite incident could “possibly” lead to post traumatic stress disorder.
52. Dr McCarthy, in his report of 16 May 2009, noted that the applicant described this incident “in physical terms” and did not describe “any severe emotional response at the time …”.
53. Having regard to the whole of the evidence in relation to this incident, the Tribunal is satisfied that the applicant’s relevant history – in particular, his statement that he thought he was going to die as a result of the insect bite – as recorded by Dr Burvill, was grossly exaggerated and the Tribunal does not accept that history as an accurate account of either the applicant’s physical response, or his emotional response, to that incident. The Tribunal accepts Dr Kay’s opinion that, putting it at its highest, the insect bite could possibly lead to post traumatic stress disorder, but the Tribunal is not satisfied, on the balance of probabilities, that it did lead to post traumatic stress disorder in the applicant’s case. In short, the Tribunal is not satisfied that this incident fulfils criterion A of the diagnostic criteria in respect of post traumatic stress disorder set out in DSM-IV because the Tribunal is not satisfied that:
· the applicant “experienced … or was confronted with an event … that involved … threatened death or serious injury, or a threat to [his] physical integrity”, as a result of the insect bite; and
· the applicant’s response to the insect bite involved “intense fear, helplessness, or horror”;
as required by criterion A.
The accidental unauthorised discharge of a rifle by a fellow soldier in close proximity
54. The applicant’s evidence was that this incident occurred when he and Pte Rory Kelliher were sitting on the floor in a very small room about 1 metre apart and opposite each other and Pte Kelliher was cleaning his rifle. He said that when Pte Kelliher’s rifle discharged the bullet passed “maybe a foot in front of [his] face” but he later acknowledged that, given the length of the rifle and the fact that the bullet lodged near the ceiling, it was highly improbable that the bullet passed so close to his face. He said that, after the rifle discharged, he “quickly checked [himself] to make sure [he] was okay” and he “just went and sat down by [himself] for about half an hour” and that he told “someone” who checked if he was alright that he was “okay, just shaken up”.
55. Rory Kelliher’s evidence was that, when the rifle discharged, he and the applicant were sitting on the floor of the room facing each other about 1 – 2 metres apart and he was holding the rifle at an angle of 45˚ with the barrel pointed not in the direction of the applicant but rather “slightly to the left” of the applicant, and the bullet lodged at the top of a wooden column near the roof.
56. A Department of Defence “Summary Proceedings Report” which is in evidence (part of Exhibit R5) records that on 31 March 2000 Pte Rory Kelliher was convicted of negligently causing a rifle to discharge on 29 March 2000, and was fined $1,000, and that the applicant was a witness to that event. It is common ground that this document relates to the present incident.
57. Dr Burvill, when describing this incident in his report of 20 April 2005, referred to the accidental firing of a shot which “narrowly missed” the applicant and stated that the applicant “was terrified by this episode, believing that he could well have been shot”. When describing this incident in his report of 6 August 2007, however, Dr Burvill referred to the accidental shooting of a bullet “which allegedly landed about one metre to one side of” the applicant, and he recorded that the applicant “said that he was stunned by this event and was considerably upset by the incident, when he felt that he could have been killed”.
58. Dr Kay, in his report of 23 June 2009, merely opined that “an accidental discharge” is “capable of leading to PTSD”.
59. Dr McCarthy, in his report of 16 May 2009, recorded that the applicant said that the unauthorised discharge occurred “in close proximity” to him and “just missed [his] head by 2 to 3m causing [him] stress”, and he opined that this incident was not sufficiently severe to cause chronic post traumatic stress disorder.
60. Having regard to the whole of the evidence in relation to this incident, the Tribunal is not satisfied that this incident fulfils criterion A of the diagnostic criteria in respect of post traumatic stress disorder set out in DSM-IV. As regards the accidental unauthorised rifle discharge itself, the Tribunal accepts the evidence of Rory Kelliher as representing an accurate account of the position of the rifle in relation to the applicant when it discharged, and, on the basis of that evidence, the Tribunal is not satisfied that, in that incident, the applicant “experienced, witnessed, or was confronted with an event … that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”, as required by criterion A(1). As regards the applicant’s response to that event, the Tribunal notes that the applicant’s own evidence was that he “quickly checked [himself] to make sure [he] was okay” and that he told “someone” who checked if he was alright that he was “okay, just shaken up”. The Tribunal further notes that Dr Burvill has variously recorded the applicant’s response to this incident as “terrified … believing that he could well have been shot (report of 20 April 2005) and “stunned”, “considerably upset … when he felt that he could have been killed” (report of 6 August 2007), whereas Dr McCarthy has recorded that the applicant said that the incident “caused [him] stress” (report of 16 May 2009). As regards the apparent inconsistency in the severity of the applicant’s responses to this incident as noted by Dr Burvill in his abovementioned reports, the Tribunal notes that Dr Burvill’s report of 6 August 2007 was provided by him to the DVA in response to a request by the DVA to review his clinical notes and provide it with “as much information as is available on the various stressors mentioned to [him] by [the applicant]”. Accordingly, the Tribunal accepts Dr Burvill’s report of 6 August 2007 as containing a more detailed and precise record of the history given to him by the applicant than his report of 20 April 2005. Having regard to the abovementioned evidence, the Tribunal is not satisfied that the applicant’s response to the accidental unauthorised rifle discharge involved “intense fear, helplessness, or horror”, as required by criterion A(2).
Finding
61. The Tribunal concludes that none of the abovementioned four incidents relied on by the applicant satisfies criterion A of the diagnostic criteria in respect of post traumatic stress disorder set out in DSM-IV. No other incident was relied on by the applicant as causing or contributing to his contracting post traumatic stress disorder. The Tribunal concludes, therefore, that the diagnosis by Dr Burvill and Dr Kay of the applicant’s psychiatric condition as post traumatic stress disorder is not in accordance with the relevant diagnostic criteria set out in DSM-IV, and it does not accept that diagnosis. The Tribunal prefers, and accepts, the opinion of Dr McCarthy that the applicant does not presently suffer from, and has not at any material time suffered from, post traumatic stress disorder, and the Tribunal so finds.
Is the applicant presently suffering from, or has he at any material time suffered from, a mental ailment other than post traumatic stress disorder?
62. Dr McCarthy, in his report of 16 May 2009, opined that the diagnosis of the applicant’s current psychiatric condition (in accordance with the relevant diagnostic criteria set out in DSM-IV) is as follows:
· panic disorder with agoraphobia in partial remission;
· major depressive disorder of moderate severity in remission;
· adjustment disorder with anxiety and depressed mood in remission; and
· personality disorder not otherwise specified.
63. Dr Kay, in his report of 23 June 2009, expressed agreement with Dr McCarthy’s abovementioned diagnosis, and he added that Dr McCarthy’s diagnosis was consistent with his preferred diagnosis of post traumatic stress disorder.
Finding
64. On the basis of the abovementioned reports of Dr McCarthy and Dr Kay, the Tribunal finds that the applicant suffers from mental ailments, the appropriate diagnoses of which are as follows:
· panic disorder with agoraphobia in partial remission;
· major depressive disorder of moderate severity in remission;
· adjustment disorder with anxiety and depressed mood in remission; and
· personality disorder not otherwise specified.
Was any of the abovementioned mental ailments suffered by the applicant “contributed to in a material degree by” his military service in East Timor?
65. As regards the applicant’s military service in East Timor, the case which was presented on behalf of the applicant, and which was sought to be met by the respondent, focussed exclusively on the four incidents specified in paragraph 38 above and discussed in paragraphs 39–60 above. Accordingly, in addressing the abovementioned question, the Tribunal will confine its attention to those four incidents and will not consider other aspects of the applicant’s military service in East Timor.
Panic disorder with agoraphobia in partial remission
66. In his report of 16 May 2009 Dr McCarthy opined that the applicant probably experienced a panic attack at the time when he was bitten by the insect [in January 2000 in East Timor] but he added:
“ I do not suggest an insect bite caused Mr Bromham to develop a panic disorder but rather than (sic) it precipitated a panic attack at that time.”
He further opined that this condition “resolved overnight”. More generally, Dr McCarthy also opined as follows:
“ I believe this gentleman’s current psychiatric symptoms represent current issues and are not a continuation of any psychiatric disorder he developed during his military service.
…
I think it is highly likely that Mr Bromham’s psychiatric condition is attributable to personal and social factors.
…
I don’t believe that this man suffers from any ongoing military related psychiatric condition. … I don’t think he is now suffering any unresolved psychiatric condition resulting from his service in the military apart from perhaps unresolved disappointment and resentment over his lack of success in his military career.”
67. On the basis of Dr McCarthy’s report, the Tribunal finds that the applicant’s mental ailment, namely, panic disorder with agoraphobia in partial remission, was not “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor.
Major depressive disorder of moderate severity in remission
68. In his report of 16 May 2009 Dr McCarthy opined that the applicant experienced this psychiatric condition in 2003/2004, and that its cause was “unclear”. In a subsequent report dated 14 August 2009 (Exhibit R7), Dr McCarthy described this condition as being “in full remission”. The Tribunal also notes the more general opinions regarding the applicant’s present psychiatric condition expressed by Dr McCarthy in his report of 16 May 2009 (see paragraph 66 above).
69. On the basis of Dr McCarthy’s abovementioned reports, the Tribunal finds that the applicant’s mental ailment, namely, major depressive disorder of moderate severity in full remission, was not “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor.
Adjustment disorder with anxiety and depressed mood in remission
70. In his report of 16 May 2009 Dr McCarthy opined that the applicant experienced this psychiatric condition “just before and on his return to Australia” from East Timor in April 200, and that its cause was “his own behaviour and the response of his fellow soldiers to his behaviour”. Dr McCarthy referred, in this connection, to claims made by the applicant that he was distressed by “bullying in the Army over his ‘Buddhist’ beliefs”. Dr McCarthy also opined that resolution of this psychiatric condition was “probably now complete”. The Tribunal notes that Dr McCarthy, in his report of 14 August 2009, described this condition as being “in full remission”, and it also notes the more general opinions regarding the applicant’s present psychiatric condition expressed by Dr McCarthy in his report of 16 May 2009 (see paragraph 66 above).
71. On the basis of Dr McCarthy’s abovementioned reports, the Tribunal finds that the applicant’s mental ailment, namely, adjustment disorder with anxiety and depressed mood in full remission, was not “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor.
Personality disorder not otherwise specified
72. In his report of 16 May 2009 Dr McCarthy relevantly opined regarding the applicant:
“ I believe that behind most of his psychiatric difficulties over the years has been underlying personality disorder. A personality disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence and early adulthood, is stable over time and leads to distress or impairment. I have described his personality disorder as non-specific as he has several different personality traits including those of a narcissistic, anxious and avoidant nature.”
The Tribunal also notes the more general opinions regarding the applicant’s present psychiatric condition expressed by Dr McCarthy in that report (see paragraph 66 above).
73. On the basis of Dr McCarthy’s report of 16 May 2009, the Tribunal finds that the applicant’s mental ailment namely, personality disorder not otherwise specified, was not “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor.
Is the applicant suffering from, or has he at any material time suffered from, a physical ailment that was “contributed to in a material degree by” his military service in East Timor?
74. The applicant claims that he suffers from two physical ailments causally related to his military service in East Timor, namely, irritable bowel syndrome and “irritable bladder”.
Irritable bowel syndrome
75. The Tribunal is satisfied, on the basis of Dr Easton’s reports (see paragraphs 20–22 above), that the applicant suffers from irritable bowel syndrome.
76. As regards the causation of the applicant’s irritable bowel syndrome, Dr Easton accepted that the applicant was suffering from post traumatic stress disorder and she opined, in her reports of 4 November 2005 and 22 March 2006, that the applicant’s irritable bowel syndrome was related to his post traumatic stress disorder. The Tribunal, however, has found that the applicant is not suffering from, and has not at any material time suffered from, post traumatic stress disorder.
77. Dr Easton was subsequently requested by the applicant’s solicitors to express her opinion on whether the applicant’s irritable bowel syndrome was related to his psychiatric conditions of panic disorder with agoraphobia in partial remission, major depressive disorder of moderate severity in remission, and personality disorder, as diagnosed by Dr McCarthy. In her report of 10 June 2009 Dr Easton stated:
“ I do consider that the conditions ... could be associated with irritable bowel syndrome …” (emphasis added)
78. Having regard to the Tribunal’s abovementioned findings that:
· the applicant is not suffering from, and has not at any material time suffered from, post traumatic stress disorder; and
· none of the applicant’s psychiatric conditions (as diagnosed by Dr McCarthy – see paragraphs 65–73 above) was “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor;
the Tribunal also finds that the applicant’s irritable bowel syndrome was not “contributed to in a material degree by” any of the four abovementioned incidents in the applicant’s military service in East Timor.
“Irritable bladder”
79. The Tribunal is satisfied, on the basis of Dr Tulloch’s letter of 28 November 2005 (see paragraph 23 above), that the applicant suffers from a physical ailment relating to his bladder involving “frequency and urgency” of urination.
80. As regards the causation of the applicant’s bladder condition, Dr Tulloch opined, on the basis of the history given to him by the applicant, that this was “related to stress” when the applicant was in East Timor.
81. Having regard to the Tribunal’s findings referred to in paragraph 78 above, the Tribunal also finds that the applicant’s bladder condition was not “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor.
Conclusion
82. Having regard to the Tribunal’s abovementioned findings that none of the mental ailments and physical ailments suffered by the applicant was “contributed to in a material degree by” any of the four incidents (specified in paragraph 38 above) in the applicant’s military service in East Timor, the Tribunal concludes that none of those mental and physical ailments is a “disease” or an “injury”, as defined in s 4(1) of the SRC Act (as in force at all material times), and compensation is, therefore, not payable to the applicant, pursuant to s 14(1) of the SRC Act, in respect of any of those ailments.
Decision
83. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 28–30 October 2009
Date of Decision 20 November 2009
Counsel for the Applicant Mr R Turner
Solicitor for the Applicant Turner Coulson
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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