Cheatham and Comcare (Compensation)

Cheatham and Comcare (Compensation) [2022] AATA 37 (14 January 2022)
Division:GENERAL DIVISION
File Number:2019/3063
Re:Kevin Cheatham
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:14 January 2022
Place:Brisbane

The Tribunal affirms the decision under review.
......................[SGD]...............................
Member D Mitchell

CATCHWORDS
COMPENSATION – claim for compensation in relation to a mental ailment – whether Applicant suffered a psychological ailment or aggravation of a psychological ailment – whether the Applicant’s employment contributed, to a significant degree, to the onset or aggravation of the Applicant’s ailment – did the Applicant’s ailment arise from reasonable administrative action – where Respondent determined no liability for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – creditability of Applicant – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Mooi [1196] FCA 1587
REASONS FOR DECISION
Member D Mitchell
14 January 2022
INTRODUCTION

On 27 November 2018, Mr Kevin Cheatham (the Applicant) submitted a Workers’ Compensation Claim to the Respondent, in relation to a psychological injury that he stated he first noticed symptoms of on 26 September 2010.[1]
[1] Exhibit 1, T Documents, T6, pages 30-37, Workers’ Compensation Claim.
On 24 January 2019, the Respondent made a determination refusing the Applicant’s claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).[2] The determination was made on the basis that the Respondent was unable to establish that the Applicant was suffering from an ailment of which the onset was contributed to, to a significant degree by his employment with the Australian Federal Police (AFP).[3]
[2] Exhibit 1, T Documents, T18, pages 209-210, Determination.
[3] Exhibit 1, T Documents, T18, pages 209-210, Determination.
On 2 April 2019, the Respondent affirmed the determination to refuse the Applicant’s claim for compensation.[4] As a result the Applicant sought review of that reviewable decision by this Tribunal.[5]
[4] Exhibit 1, T Documents, T22, pages 236-244, Reviewable Decision.
[5] Exhibit 1, T Documents, T2, pages 4-11, Application for Review of Decision.
BACKGROUND
The Applicant commenced employment with the AFP on 30 June 2008.[6] Prior to joining the AFP, the Applicant was employed by the Queensland Police Service (QPS) from 30 May 1994 to 29 June 2008.[7]
[6] Exhibit 1, T Documents, T6, page 36, Workers’ Compensation Claim.
[7] Exhibit 1, T Documents, T17, page 203, Applicant’s CV.
On 11 June 2018, the Applicant transferred to ACT Policing as part of a six month rotation from Brisbane Aviation and was assigned to Team 6 at the Woden station.[8]
[8] Exhibit 2, Supplementary T Documents, ST1, page 253, Professional Standards Proposed Finding Investigation Report.
According to the Professional Standards Proposed Finding Investigation Report:[9]
[9]     Exhibit 2, Supplementary T Documents, ST1, pages 252-270, Professional Standards Proposed Finding Investigation Report.
1.4On 15 October 2018, towards the end of the six (6) month temporary transfer to ACTP, [the Applicant] was sent an email request from [redacted] requesting him to complete a PDA for this time period;
1.4.1[the Applicant] spoke with [redacted] in relation to the request and stated words to the effect he believed ‘everyone out to get him’ and he would ‘CRAMS Woden members if he was [expletive] over’; and
1.4.2these conversations gave rise to [redacted] making notes in his official police notebook N34048 pg 76. [Redacted] made an observation [the Applicant] appeared to be distressed and paranoid in his behaviour.
1.5 On 21 October 2018, [redacted] spoke with [the Applicant] in relation to the conversation on 15 October 2018 which he recorded in his official police notebook N34047, pg 1. At this time [the Applicant] said words to the effect:
1.5.1not to include any negative comments about teamwork Issues in   his PDA:
1.5.2he is a victim of bullying, lack of leadership and failure by the AFP to adequately train him;
1.5.3if you put any negative comments in the PDA I have a right to
reply; and
1.5.4ACT Policing had triggered pre-existing Post Traumatic Stress Disorder (PTSD).
1.6On 8 November 2018, [redacted] sent [the Applicant] a further email requesting he complete his portion of the PDA so [redacted] could finalise it. [The Applicant] would be returning shortly to Brisbane after his rotation in ACTP.
1.7 About 11.20am the same day [the Applicant] and [redacted] entered the Sergeant’s office and commenced a discussion about the topics listed in [the Applicant’s] PDA. [The Applicant] asked [redacted] if any negative comments would be placed in his PDA to which [redacted] Owens stated. ‘one paragraph would detail the issues he had with working as part of a team’. The paragraph in question read as follows;
1.7.1 during Kevin’s time in ACT Policing, he experienced minor issues relating to working as part of a team. This caused some administrative issues and affected productivity within the team.
1.8 Upon hearing this, [the Applicant] has allegedly become irate and raised his voice. He stated words to the effect ‘the comments would not be accepted’.
[The Applicant] began swearing, said it was ‘[redacted expletives]’, he became physically aggressive, kicking a chair and pacing around the room.
1.9[Redacted] was intimidated by the actions of [the Applicant] to such an extent he became aware and remembered he was no longer in possession of his accoutrements, as he had handed them in earlier the same morning. [Redacted] observed the hood of [the Applicant’s] Glock holster was also lowered. [Redacted] has not nominated seeing [the Applicant] lower it, or manipulate it in any way.
1.10 [Redacted] has attempted to placate [the Applicant] and suggested they go
outside to talk further, to de-escalate the situation and because officers in the
day room would hear what was being said. [The Applicant] has continued
yelling and swearing and stated words to the effect ‘if the comments remained
on his PDA that he would CRAMS everyone’. [The Applicant] has then walked
out.
1.11 About 11.42am the same day, [the Applicant] has later requested a meeting
between himself, [redacted] and fellow team member, [redacted]. A meeting
was organised for later in the day. [The Applicant] remained argumentative and
continued to swear during conversations in the day room with [redacted]. This
was in front of junior staff also present in the day room, prior to the second
meeting.
…
1.13 About 12.55pm the same day, [redacted], [the Applicant] and [redacted]
commenced the meeting. [The Applicant] questioned the integrity of [redacted]
and referred to another female team member as ‘a [expletives]’. [The Applicant]
further questioned the integrity of [redacted] and said words to the effect of ‘I
don’t know if I should CRAMS you or take you downstairs to flog you’ to
[redacted].
…
1.16 A discussion was held with [redacted] who accepted the representations of
[redacted] and [redacted], [the Applicant] was stood down from further duty
by [redacted] and his firearm was surrendered.
[Footnotes omitted]
The Applicant lodged a Workplace Incident Report[10] in relation to the incident on

8 November 2018. The Applicant provided the following brief description of the incident:[11]
On the time and date listed above, I had an emotional breakdown at work. I became very upset and angry. Team Leader Ben OWENS and former Acting Team Leader John CAMPBELL made representations to the OIC about my breakdown and I was approached by AFP Welfare, who attended Woden Station and on their arrival, the OIC called myself into a room and requested that I hand over my accoutrements. I was, as I understand, formerly stood down from duty and escorted from the building. I understand this occurred as there was concerns from [sic] my health and well-being.
My emotional breakdown was a result of significant exposure to traumatic incidents in the course of my duties with the AFP and bullying and harassment I have been subjected too throughout my employment.
[10] Exhibit 1, T Documents, T4, pages 21-29, Workplace Incident Report.
[11] Exhibit 1, T Documents, T4, pages 21-22, Workplace Incident Report.
On 27 November 2018, the Applicant lodged a Workers’ Compensation Claim for a psychological injury providing the same explanation of what happened and how he was injured as that outlined in the Workplace Incident Report reproduced above. The Applicant provided that he first noticed the symptoms/injury on 26 September 2010 at 1:00 PM.[12]
[12] Exhibit 1, T Documents, T6, pages 30-37, Workers’ Compensation Claim.
On 21 January 2019, the Applicant provided a response to the AFP’s employer statement. In relation to the events of 8 November 2018, the Applicant submitted that the report supplied by Acting Sergeant Owens was an accurate reflection of the events that occurred,[13] however he did not threaten to harm anyone.[14] The Applicant provided:[15]
In summary I would submit that the performance review that occurred on the 8 November 2018 was in no way stressful or such a significant incident to trigger my response. The review comments made by A/Sgt OWENS were fair and reasonable. But unfortunately, it trigged a response from myself that was not [proportionate] to the circumstances. I wish I had just signed off on the PDA and moved on with my career, however that was the final act of a build-up that created the perfect mental health storm.
[13] Note the report of Acting Sergeant Owens to which the Applicant refers is consistent with the details set out in paragraph 6 above.
[14]
[15]
At the request of the Respondent, the Applicant attended an independent medical examination with Dr Prabal Kar, Consultant Psychiatrist on 18 December 2018.[16] Dr Kar subsequently provided a report dated 31 December 2018[17] opining that the Applicant did not have PTSD from his work in the QPS or the AFP, rather he had pre-existing personality vulnerabilities which have been aggravated by his harmful alcohol use and manifested in his behaviour, moods, anger, interpersonal difficulties at work, and thoughts of self harm.
[16] Exhibit 1, T Documents, T10, pages 45-48, Request for Report: Dr Kar.
[17] Exhibit 1, T Documents, T12, pages 50-71, Medical Report of Dr Kar.
Dr Kar provided that he did not find objective evidence of the Applicant experiencing traumatisation from his past work. Dr Kar provided that PTSD is primarily an anxiety disorder which causes abnormal and excessive anxiety and avoidance, however noted that the Applicant reported that he had always done his work well and reported no history of avoidance or anxiety. At the time of examination, the Applicant wanted to go back to the same work, not avoid it.[18]
[18] Exhibit 1, T Documents, T12, pages 50-71, Report of Dr Kar.
On 24 January 2019, the Respondent issued a determination denying liability under section 14 of the SRC Act for the claimed injury.[19]
[19] Exhibit 1, T Documents, T18, pages 209-210, Determination.
On 13 March 2019, the Applicant requested a review of the determination.[20] In submitting his request for reconsideration of the determination the Applicant provided a submission outlining the grounds on which he considered the determination to be wrong together with Statutory Declarations from his partner, Ms Heather Cavernelis and counsellor, Mr Peter Langley and a medical report of Dr David Nguyen, psychiatrist.[21]
[20] Exhibit 1, T Documents, T19, pages 213, Reconsideration Request.
[21] Exhibit 1, T Documents, T19, pages 211-232, Reconsideration Request and attachments.
In his submission the Applicant responded to Dr Kar’s findings regarding his alcohol consumption and provided that he could establish a moderate and responsible history to the consumption of alcohol which is supported by the statutory declaration of Ms Cavernelis.[22]
[22] Exhibit 1, T Documents, T19, pages 214-217, Letter in support of request for reconsideration.
The Applicant provided that his personality vulnerability of anger is not triggered by alcohol but by PTSD. The Applicant, with reference to his exhibited symptoms of PTSD provided that he had an established history of PTSD symptoms which were further triggered by his work in ACT Policing, with the events of 8 November 2018 being the tipping point for his PTSD.[23]
[23] Exhibit 1, T Documents, T19, pages 217-218, Letter in support of request for reconsideration.
The Applicant further provided that since 2010, so for 8 years he had been receiving counselling from Mr Langley due to PTSD related issues from his AFP deployment to the Solomon Islands.[24] He provided that he did not report this to his employer because of the culture of the organisation at that time and he believed he would have received unfavourable attention from management which would have had an adverse effect on his professional career.[25]
[24] Exhibit 1, T Documents, T19, pages 218-219, Letter in support of request for reconsideration.
[25] Exhibit 1, T Documents, T19, page 219, Letter in support of request for reconsideration.
In a Statutory Declaration dated 15 February 2019, Ms Cavernelis stated:[26]
[The Applicant] consumes alcohol moderately. He does not consume alcohol if he is working the next day. On average I would estimate that it would be twice a week. At home [the Applicant] only consumes light beer, and a six pack would last him a week.
… To my knowledge alcohol has never affected his ability to work or function normally.
…
I did begin to notice a change in his behaviour towards the end of August 2018 after he was deployed to ACT policing. He began to describe the traumatic events he was witnessing and also communicated the issues he was subjected to in the work place. I spoke to [the Applicant] every day and I could sense the build up of stress in his demeanour and behaviours. He told me he wasn’t sleeping, that he couldn’t stop his mind from over-thinking. He stated he couldn’t concentrate or relax and kept thinking about work.
I noticed he was isolating himself and when he would return home on a short break from Canberra, I felt his anxiety, in that he did not want to return to general duties policing in ACT. I begged him to finish early and come back to Queensland.
…
I was present at [the Applicant’s] interview with Dr Kar and upon reading Dr Kar’s report, I disagree that [the Applicant’s] mental state is a result of alcohol consumption. Dr Kar stated that even I was fearful of [the Applicant] – this is simply not true. I have never been afraid of him – I was afraid of what would happen to him if he continued to stay in that negative, stressful environment.
…
[26] Exhibit 1, T Documents, T19, pages 226-227, Statutory Declaration of Heather Cavernelis.
In a Statutory Declaration dated 8 March 2019, Mr Langley provided that:[27]
…
I know [the Applicant]. [The Applicant] fist [sic] came to me to see me in November 2010. He is a client of mine and has visited me regularly every few months since then.
The nature of our sessions together centered [sic] around his work and family relationships following his deployment to the Solomon Islands.
[The Applicant] displayed depression, anxiety, stress and avoidance. He displayed a lack of self belief and and [sic] in our talks often was full of negative thought [sic] about himself. I believed that was impacting on his personal relationships both at home and at work.
In the many sessions that I conducted with [the Applicant] the misuse of alcohol never came up. I saw him on many occasions and during those times which varied in the times of day that we met, he never appeared to be affected by alcohol.
At times we did discuss self care of his anxiety and stress and [the Applicant’s] way of dealing with this was compulsive and prolonged exercise sessions, as can be seen from his physique.
Based on my many sessions with him, sometimes in morning sessions and at other times in late afternoons, I do not consider [the Applicant] to be suffering from substance addiction or abuse and I have never seen any abnormal anger or demonstrations of violence.
[27] Exhibit 1, T Documents, T19, pages 228-229, Statutory Declaration of Peter Langley.
On 2 April 2019, the Respondent made a reviewable decision affirming the determination.[28]
[28] Exhibit 1, T Documents, T22, pages 236-244, Reviewable Decision.
On 30 May 2019, the Applicant sought review of the reviewable decision by this Tribunal.[29]
[29] Exhibit 1, T Documents, T2, pages 4-11, Application for Review of Decision.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation under section 14 of the SRC Act in respect of the claimed injury.
In considering this issue, the Tribunal must consider:
1. What is the condition for which the Applicant seeks compensation under section 14 of the SRC Act?
2.   Is that condition:
(i)   an ailment, or an aggravation of an ailment and if so was it significantly contributed to by the Applicant’s employment; or
(ii) an injury (other than a disease) and if so did it arise out of or in the course of the Applicant’s employment?
3.   If so, was the Applicant’s condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment?
THE LAW
Section 14 of the SRC Act deals with compensation for injuries and relevantly provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
Section 5A of the SRC Act defines “injury” to mean:
(1)In this Act:
Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act defines “disease” to mean:
(1)In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
(3) In this Act:
significant degree means a degree that is substantially more than material.

Section 4 of the SRC Act defines ailment as any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development).
EVIDENCE
Applicant’s Evidence
The Applicant provided a comprehensive statement dated 14 February 2020 outlining his life from childhood up until shortly after he resigned from his employment with the AFP in 2019.[30]
[30] Exhibit 4, Joint Hearing Bundle, A3, pages 15-40, Applicant Statement.
Relevantly the Applicant outlined that:[31]
[31] Exhibit 4, Joint Hearing Bundle, A3, pages 15-40, Applicant Statement.
·He joined the Army Reserves in 1990 as an Officer Cadet. He graduated from Officer Cadet School and in 1993 was commissioned into the Australian Army reserve as a Lieutenant. In October 1993 he suffered a training accident where his leg was broken and foot was dislocated for which he required hospitalisation and surgery and was unable to work for several months. In February 1998 he became the Platoon Commander of the local 51^st Battalion FNQR Army Reserve Unit.
·In May 1994, having passed the physical fitness test, he was accepted into the Queensland Police Service Police Academy. He graduated from the QPS Academy in December 1994 and was posted to the Toowoomba Police Station to perform General Duties.
·He was married in October 1996. His marriage produced three children.
·During his employment as a member of the QPS, which ended in mid-2008, he had undertaken a number of different postings and undertook a variety of roles. He outlined a number of incidents he witnessed or investigated during that period, including but not limited to fatal or serious road crash incidents, suicides and discovery of deceased persons. He also outlined an incident where his family were threatened.
·He received a Bravery Award for his actions at an incident on 6 January 1997.
·At various times throughout his QPS employment his family life suffered, he was drinking on his days off, developed stomach problems, had troubles sleeping and became hyper-vigilant, was stressed and anxious about his work and had issues with his superiors. He applied for other positions when he had issues with his supervisors, he enjoyed his work when he got along well with his team and did not feel he was being targeted, hounded or that his good work was not being recognised.
·At various times he was angry and frustrated with decisions being made by his supervisors.
·In 2007, he applied for the AFP International Deployment Group (IDP) and was subjected to a full day of Psychometric and Aptitude Testing during which he remembers speaking with a psychologist about his policing experiences, during which he disclosed the issues and events he had experienced as a Police Officer.
·On 1 June 2008, he was accepted into the AFP and resigned from the QPS on good terms after 14 years of service.
·After attending relevant training, he was deployed in September 2008 to the Solomon Islands as a member of the Regional Assistance Mission Solomon Islands (RAMSI), Participating Police Force (PPF). He outlined his duties, postings and operations during the deployment as well as the response received by the PPF from the local police, militants and towns people. He described experiencing, attacks on the police post, investigating a missing child notification and assault on a child, being surrounded by a group of 50 people with rocks when attempting to talk to a driver of a vehicle and frustrations with the way in which matters were handled.
·After the incident with the large group of people (which occurred in approximately February 2010) he had trouble sleeping, felt anxious and began to drink on his days off. He did not talk to anyone about what was going on. It was then that he struck up a friendship with a New Zealand woman who was part of the New Zealand Police Contingent, working as a communications operator. She was the only person he felt he could talk to about his experiences.
·Shortly after that incident he went on a break home to Australia, his father was ill and his marriage was in trouble. After he returned to the Solomon Islands his wife posted on Facebook about his affair with the New Zealand woman. He deleted Facebook and accepted his marriage was over. He was then shunned by all of his friends and some of his extended family and was very depressed and again started to drink heavily. He began a relationship with the New Zealand woman until she finished her mission.
·He outlined that at various times during his deployment to the Solomon Islands and on breaks home he felt hypervigilant, had trouble sleeping, began to drink heavily and was angry and easily upset.
·He outlined various instances that left him frustrated during his deployment to the Solomon Islands due to local practices.
·In November 2010, he finished his mission in the Solomon Islands and returned home, moving back into the family home.
·In December 2010, his father passed away and he was very depressed and started attending counselling sessions with Mr Langley.
·Between 2011 and June 2018, he undertook a number of different roles in the AFP which included positions at the Gold Coast, Brisbane, Cairns and Perth Airports, as part of a task force investigating a riot in an Immigration Detention Centre and a deployment to Christmas Island.
·In May 2011, he was transferred to the Gold Coast Airport and only saw his children every second weekend. He was very depressed and would have regular counselling sessions with Mr Langley, he had trouble sleeping and was very angry and began to hate going to work, he started to have issues with other members and felt that he was not liked by some of his team, however received good feedback from his team leader because of his work ethic and diligence.
·In March 2013, he found it difficult to fit into his new team and felt the Team Leader was very controlling. He felt that he was always tasked with the worst duties by the Team Leader and that would affect his chances of further deployments. He felt unduly targeted and that started to affect his health, he had trouble sleeping and developed stomach issues due to anxiety. He reported this to his general practitioner who provided him with a two-week medical certificate to allow him to recover. He was also receiving counselling from Mr Langley in relation to his marriage break down and his work-related issues. He was isolating himself from friends and family and began to be extremely sensitive and constantly angry.
·In June 2015, he transferred from IDG to a permanent role as a team member in Aviation Protection at the Brisbane Airport. The previous Team Leader had transferred and the workplace had changed, he fitted in well with his new team. He outlined incidents in relation to passenger deaths, suicides and assaults by intoxicated passengers.
·In February 2017, he experienced flashbacks of the fatal crashes he had investigated at specific locations while working for the QPS.
·In March 2017, he made an arrest and was later informed that he did not follow correct procedure and that he would be subject to formal investigation.
·In June 2018, he started a short-term secondment to ACT Policing at the Woden Police Station to perform General Duties. He was not given any induction training on his arrival and did not have experience or knowledge of ACT Policing procedures or legislation. At that time, he had 24 years of experience as a police officer and realised that he was working with other police much younger than him and with less policing experience. His Team Leader only had 8 years of experience. He held the rank of Leading Senior Constable which was senior to every other team member at the station.
·He seemed to fit in well and got along with everyone except Acting Sergeant Campbell who he felt appeared to be dismissive and short with him in conversation, he got the impression that he did not like him.
·He commenced work rotating every day with a different partner within the team, he needed assistance in completing the case files as he was unsure of the ACT procedure which appeared to be totally different to what he had been taught during his AFP service.
·The nature of the work was like what he experienced in the QPS, however the legislative powers of investigation were different and somewhat limiting as the ACT Government appeared to be more conservative.
·He outlined different situations he was called to attend and investigations he undertook during his work with ACT Policing, which included, but were not limited to, sudden deaths, discovery of a dead body, being first response to a siege situation involving methamphetamine, an OMCG shooting, a sexual assault of a fourteen-year-old, many alcohol and drug related disturbances, domestic violence incidents, vehicle crashes and arson offences.
·As his workload increased, he became increasingly frustrated and stressed as he needed constant help to ensure he followed ACT procedures. He felt he was singled out for certain tasks and was more regularly tasked to perform duties on the front counter than anyone else.
·He began to notice a change in himself. His sleep was broken and his separation from his partner triggered many negative emotions which he had experienced when deployed overseas. He felt he had no support network and could not talk to his partner about his experiences.
·He felt that the traumatic experience of working day-to-day in first response policing triggered memories and emotions from previous traumatic experiences during his service with QPS and AFP, he started to isolate himself from his colleagues and began to grind his teeth.
·He would frequently relive traumatic events when he drove near places those events had occurred and was becoming angry and irritable at work and believed that was starting to affect his work relationships.
·He described attending a report of a breach of a Family Violence (FV) Protection Order and his subsequent interactions with the Constable with whom he was partnered for that day. He had corrected the Constable and reported the interaction when he returned to the station. In a follow up meeting he felt he was forced to apologise, however, the wrong information that had been provided to the victim of the FV by the Constable was not addressed. He noticed that after this incident the younger team members of the shift began to avoid him, he felt like he was being ostracised.
·He described attending a disturbance at an aged care facility from which an allegation was made that he intentionally shoulder barged Acting Sergeant Carter. He became frustrated during this attendance as he was going backwards and forwards between the management of the aged care facility and Acting Sergeant Carter, who he considered was having a personal conversation. On return to the station, he was called into the Sergeants Office by Acting Sergeant Campbell who he considered appeared angry and was told that his attitude was doing him no favours, that no one wanted to work with him and that he was insubordinate and rude. He was taken aback and upset by the way in which he was spoken to and how the matter had been dealt with.
·He agreed to an offer to return to Brisbane three weeks early and did his best to not cause further issues during the remainder of his tenure.
·A few days later he was approached by Acting Sergeant Owens regarding the finalisation of his Performance and Development Agreement (PDA), who stated that he would be making a positive report however would have to mention some of the difficulties he had encountered. In the discussions with Acting Sergeant Owens he informed him that he was suffering from PTSD but believed that on his return home the injury would take care of itself.
·A few days later AFP Welfare rang him and he spoke to them about how he was feeling, however nothing more came of the conversation.
·In his final week he was tasked by prosecutions to complete a full brief of evidence and three Summons Briefs. His request for assistance to complete the paperwork by being rostered on administrative shifts was refused.
·At the time his partner’s close family friend passed away and he chose not to attend the funeral and remained in ACT Policing as he felt compelled to complete the outstanding Court Briefs as a priority. This decision caused considerable stress on his partner who was suffering and needed his support, he felt that he had failed her.
·On 7 November 2018 he was subject to a disciplinary interview by the Acting Chief Police Officer in relation to a matter in March 2017, it was an honest mistake that caused him considerable stress and embarrassment.
·He felt that 8 November 2018 was a tipping point. He had a meeting with Acting Sergeant Owens in relation to his PDA. When he was shown the appraisal of his performance during his deployment to ACT Policing he read one paragraph regarding a comment that he had problems working in a team and although the majority was very positive, he got extremely emotional and upset. He was shaking and a wave of anger came over him, he stood up and swore at the computer, with his foot he pushed the chair he was sitting on back against the wall and walked out.
·A short time later Acting Sergeant Owens approached him and he asked him for a three-way meeting with Acting Sergeant Campbell. At about 1 pm Acting Sergeant Campbell returned to the station and they had a meeting. He felt that everyone had turned against him and he got emotional and angry as he realised the meeting was futile, he felt unable to cope and left the meeting angry and returned to work.
·About an hour later the Officer in Charge (OIC) of the Woden Police Station asked him to step into the sick room where there were two other AFP Members who he did not know. He was asked to remove his accoutrements and was informed that he was being stood down as he had threatened other staff. He was then escorted from the building by the two members who he later found out were from AFP Welfare.
·He drove to his accommodation and felt very depressed and emotional, he drank heavily that night so he would pass out and sleep.
·
The next day the OIC contacted him and asked him to attend a meeting on

13 November 2018.
·On 13 November 2018, he attended the Woden Police Station and was handed his personal belongings from his locker and was informed that the Deputy Chief Officer had issued a written notification of the revocation of his Use of Force permit and that his behaviour and demeanour had created a sense of apprehension and fear in other police officers.
·On 14 November 2018, he spoke to an AFP psychologist who recommended a mental health treatment plan.
·He returned to Brisbane and saw his local general practitioner, Dr Ho who issued a medical certificate and referred him to see Dr Nguyen.
·He sought counselling from an AFP psychologist and spoke to AFP Welfare, and his personal counsellor, Mr Langley. He stopped drinking and attended counselling at Benestar with his partner.
·On 27 November 2018, he lodged a compensation claim with the Respondent regarding his injury.
·In about January 2019, he commenced treatment with Dr Nguyen and in May 2019 he was cleared by Dr Nguyen to return to work with the AFP at the Brisbane Airport. He returned to work after passing all the required requalification training and his Use of Force permit was reinstated.
·In about August 2019, he was contacted by AFP Professional Standards and interviewed in relation to the incident that had occurred on 8 November 2018.
·In about September 2019, he was given the PRS report in relation to the investigation and was stood down from duty and served with a show cause notice. He submitted his response to the show cause notice in October 2019 and was successful in being reinstated with the condition that he continued his medical treatment.
·He was soon thereafter advised that he was the subject of an investigation in relation to his disclosure of information to his counsellor Mr Langley regarding the investigation. He was advised that as he had not obtained permission to speak about those matters with Mr Langley, he had breached the AFP Act. He believed at the time that a counselling session was exempt. He was informed that he would be stood down and would be served with a new show cause notice.
·He tendered his resignation on 15 December 2019 with effect from 20 February 2020. He felt he was not psychologically well enough to subject himself to a further show cause process.
·He undertook further training to find a new career.
·He had been successful in attaining a part time position as a Security Officer at South Bank subject to him completing a security licence.
·He continued to attend monthly appointments with Dr Nguyen and Mr Langley.
In a further statement dated 29 March 2021, the Applicant provided that:[32]
·Between 18 March 2020 and 27 May 2020, he was employed part-time by Secure Corp QLD Pty Ltd as a security guard.
·Between 15 July 2020 and 2 November 2020, he was employed as an Asset Protection Officer – Team Leader with Corporate Protection Group Limited based at the Adani mine in Queensland.
·Since 22 November 2020, he and his partner had been contracted to Serco on Christmas Island as Detention Service Officers. That position was an apprenticeship for 12 months to compete a Certificate III in Corrections.
·He continued to have monthly phone appointments with Dr Nguyen and Mr Langley and he has had counselling sessions with the Serco Employee Assistance Program and participates in an online PTSD support program called Thrive to Survive.
·In December 2020 he was diagnosed as having an ulcer which he believes was caused by his anxiety and came to a head the day after he completed the final exam of his ITC course.
[32] Exhibit 4, Joint Hearing Bundle, A10, pages 64-65, Applicant Statement.
At Hearing the Applicant gave evidence under affirmation by MS Teams video-link from Christmas Island. He confirmed his name, date of birth, address and that his written statements dated 14 February 2020 and 29 March 2021 set out matters truthfully and to the best of his knowledge.[33]
[33] Transcript, pages 10-13.
On cross-examination, the Applicant:[34]
[34] Transcript, pages 14-39.
·When taken to Department of Defence Medical Board Examination Records dated
9 September 1997 and 25 November 1998, confirmed that the records related to him and that he answered all of the questions that were asked of him during the examinations by the medical officer honestly.
·When taken to Psychology Assessment Consent Forms dated 28 September 2007 and 7 August 2008 and DASS21 Forms dated 26 September 2007 and
7 August 2008, confirmed that while he did not recall completing the forms that, they had his name, signature and what looked like his handwriting on them. He confirmed that he accepted that he probably did complete the forms given that he was undertaking the psychological assessment to be deployed into commission and that he would have completed it honestly at the time.
·When taken to a Psychological Debrief Form dated 9 March 2010 and Major Stressors, TSER-R, DASS21, PCL-C, Alcohol Questionnaire forms, confirmed that he did not recall competing the forms, however accepted that he did and he would have answered the questions truthfully.
·When taken to a 3-page questionnaire accompanying these forms, agreed that it appeared that Dr Young completed the form with responses he provided, confirmed that the comments in relation to his wife not knowing about his extension yet and being unhappy and him potentially having a difficult time returning home as he did not know how his wife would respond were correct. Further confirmed that:
oIt was during that period that he had an affair and that his wife found out in 2010.
oThere was no report of psychological injury or sleep issues recorded on the form.
oThe information recorded on the form which also included a note that there was nothing worrying, nothing requiring additional follow up and that he seemed to believe he is better than some of his peers despite having some very rigid views in mission capacity development.
oThe information recorded on the form, was an accurate summary of the matters that he disclosed to Dr Young during the consultation.
·Confirmed that there was no mention in that document of any of the issues that he claimed to experience, or the specific incidents mentioned in his statement about his time in the Solomon Islands.
·When asked whether as it was a psychological debrief about his time in the Solomon Islands was that not the precise opportunity to tell the AFP about what he was experiencing, said that it would be if he did not want to get deployed ever again.
·Said that what he disclosed was the truth but not the whole truth because he wished to be deployed again with IDG, so he may not have disclosed everything because he wanted to be able to work in that capacity again.
·Said he did not object to staying on his post in the Solomon Islands for an additional 6 weeks.
·Said that in 2010 he did not see a general practitioner to talk about any psychological symptoms that he was experiencing, he spoke to a private counsellor, Peter Langley.
·Said in 2010 he spoke to the AFP psychologist in the Solomon Islands and he registered with Davison Trahaire counsellors who were contracted to the AFP to do counselling for their members.
·When asked if he understands that the Tribunal has not been provided with any documents from the psychologist that he says he has seen, said that it would be a matter for the AFP.
·When put to him it was because he had not seen an AFP psychologist in 2010, said that was not correct.
·Agreed that neither they nor Mr Langley referred him to a psychiatrist nor a general practitioner.
·Confirmed he is currently employed by Serco working in the immigration detention centre on Christmas Island.
·Confirmed he was required to undergo a pre-employment medical screening prior to attaining that position.
·When taken to the Subjective History – Online Questionnaire that he was required to complete as part of his application for the role with Serco:
oConfirmed that it was his signature and that the document was dated
23 June 2020 and that he competed the form.
oConfirmed that he answered “No” to the question “Have you had more than two weeks off work in the last two years for any illness or injury?”
§Agreed that question refers back to 2018.
§Said that was obviously not correct.
§When asked if he was untruthful in answering the question, said that he would have made an honest mistake.
§When put to him that he had Tribunal proceedings on foot, claiming compensation for a psychological injury at the time that he completed the report, how was it that the answer “No” was an honest mistake, said he possibly read it wrong. It was a mistake.
oWhen put to him that in answering the questions “Have you ever had a work-related illness or injury?” and “Have you ever had a workers compensation claim?” he made no mention of any work-related psychological illness or injury, said:
§“Well, to be fair it was in contention whether that was a work related injury or not, and this is the whole point why we are having this Tribunal [Hearing] now”.
§When asked whether he believes that he suffered from a work-related psychological illness or injury, said yes.
§When put to him that his answer to the question, to omit it was not providing a fulsome answer, said that in his state of mind he believed that until it was proven, he did not need to list it as otherwise it is claiming something that has not been substantiated.
§When put to him that it is true that when it is convenient to him to not disclose that he believes he has a work-related illness or injury he would not tell anyone, said, until it was substantiated, if it was still in contention – there is conjecture whether it was or not, Dr Kar said it is not and Dr Robertson said it was.
§Said the question was not asking him if he had made a claim for workers’ compensation, for him a workers’ compensation claim is when it has been accepted and payments have been made.
§When put to him that the question does not ask have you ever had a workers’ compensation claim accepted or paid, said he put down everything that had been claimed and paid out or recognised. He also had claims for his other knee that were ignored by Comcare so he did not put them down.
§When asked whether he accepted now that the answer to the two questions should have included that he had a work-related psychological injury and that he had made a workers’ compensation claim for a psychological illness, said in his state of mind he still says that to him it means that you have had a claim and you are being recognised for it and you are getting paid out for it. He can see the point, and it is a matter of interpretation and he interpreted it differently.
oAgreed that his answer of “No” to the question “Are you being treated or investigated for any illness, injury or psychological condition?” was false. When put to him that he knowingly answered the question falsely and that he was misrepresenting the state of affairs, he avoided answering the question by repeating that the answer should have been yes.
oAgreed that his answer of “No” to the question “Have you visited a health professional or physical or mental health professional in the past 12 months?” was incorrect.
oWhen asked if he accepted that his answers to those two questions were essentially lies, said they were not correct. He believes that he just tabbed and typed in “No” and tabbed without reading it correctly.
oWhen asked whether the Tribunal is to understand from his response of “No” to the question “Do you suffer or have you ever suffered from mental health illness or nervous disorder?” that at the time of completing the form he did not believe that he suffered from a mental health illness or nervous disorder, said that at the time Dr Kar’s report said he did not suffer from a mental health illness and he was probably feeling negative about everything so said no.
oWhen asked whether he relies on Dr Kar’s opinion in these proceedings in any way, said that he was a doctor, he is not.
oWhen asked if he accepts any of Dr Kar’s opinion, said that without going over the report fully, he disagrees with the majority of it.
oAgreed that more than 9 months before completing the form he had consulted Associate Professor Robertson on 5 September 2019 and he relies on his opinion in these proceedings.
oAgreed that Associate Professor Robertson expressed the opinion that he does suffer from a psychological condition, namely a generalised anxiety disorder and it is that diagnosis he is relying on to pursue these Tribunal proceedings.
oSaid that the correct answer to the question “Do you suffer or have you ever suffered from mental health illness or nervous disorder?” is yes.
oWhen put to him that his answer of “No” was another false response, said it was an incorrect response.
oWhen put to him that it was knowingly false as he has pursued these proceedings on the basis that he suffers from a mental health illness, said that is correct.
oSaid that his answer of “No” to the question “Do you suffer or have you ever suffered from conflict or stress at work requiring treatment?” was not correct and that at the time he completed the form he knew it was not a correct answer.
oWhen put to him that as Dr Kar had expressed concern about his alcohol consumption that his answer of “No” to the question “Has a relative or friend or a doctor or health worker been concerned about your drinking or suggested you cut down?” was incorrect, said that Dr Kar did not ask very good questions so he did not agree with his position.
oWhen put to him that is not what the question asks, agreed that the answer should have been yes.
oWhen put to him at the time of giving the answer of “No” he knew he was providing a false answer, said when they say doctor he took that to mean a GP.
oWhen asked whether his responses to the psychological screening which asked him a series of question about how he felt in the last four weeks and he responded to all of them that he felt none of the feelings, none of the time was correct, said they were not. He could not say which feelings he had felt in those 4 weeks however he did feel some of them over the previous 2 years.
oWhen put to him that it is difficult to remember the way he felt more than a year ago, whether he accepts that this record of his symptoms is actually the best records that the Tribunal has of how he was feeling in the four weeks prior to 23 June 2020, said no that is incorrect.
·Said he has gotten over some of his symptoms because he has been to doctors, done research, looked at emotional intelligence, taken responsibility for his own condition and how he can be better as a person, so yes he has gotten better. It has been a gradual thing. He is not better by any means, he is just better than where he was.
Medical evidence
Documentary Medical Evidence

In considering the Applicant’s claim for workers’ compensation, the Respondent sought that he attend an independent medical examination with Dr Prabal Kar, Consultant Psychiatrist.[35] Dr Kar assessed the Applicant on 18 December 2018, subsequently providing a report dated 31 December 2018.[36]
[35] Exhibit 1, T Documents, T10, pages 45-48, Request for Report: Dr Kar.
[36] Exhibit 1, T Documents, T12, pages 50-71, Report of Dr Kar.
In the report dated 31 December 2018, Dr Kar outlined the history he had taken from the Applicant and recorded that:[37]
……..
Regarding the main psychiatric symptoms [the Applicant] said he had experienced, [the Applicant] said he had “depression, trouble sleeping, teeth grinding, and difficulty concentrating.” He felt restless. He was irritable and quick to anger.
[The Applicant] said his partner said to him that she felt afraid of his anger. She feared that he could get violent. [The Applicant] said he did not feel happy.
He felt unable to laugh. He was isolating himself and avoiding friends and family. He felt constant anxiety about the future “and what’s going to happen”.
[The Applicant] said he did not smoke. He drank alcohol on four nights a week, usually beer or wine. When he took alcohol, it was about five glasses a night. He said his alcohol intake had increased. Previously, his alcohol intake was 8 to 9 drinks in a week. His current level of intake was approximately 24 alcoholic drinks in a week. He has been having such a pattern of alcohol intake since August 2018.
Whilst working in the Solomon Islands, [the Applicant] said that he had 5 to 6 alcohol drinks about 4 to 5 times in a week.
……
[37] Exhibit 1, T Documents, T12, pages 53-54, Report of Dr Kar.
In relation to diagnosis, Dr Kar opined that the Applicant did not have PTSD from his work in the QPS or the AFP, rather he had pre-existing personality vulnerabilities which had been aggravated by his harmful alcohol use and manifested in his behaviour, moods, anger, interpersonal difficulties at work, and thoughts of self harm. Dr Kar provided that he did not find objective evidence of the Applicant experiencing traumatisation from his past work.

Dr Kar provided that PTSD is primarily an anxiety disorder which causes abnormal and excessive anxiety and avoidance, however noted that the Applicant reported that he has always done his work well and reported no history of avoidance or anxiety. At the time of examination, the Applicant wanted to go back to the same work, not avoid it.[38]
[38] Exhibit 1, T Documents, T12, page 56, Report of Dr Kar.
Dr Kar opined that it appeared from the history that the Applicant has had anger and interpersonal issues at work. Dr Kar provided that anger appears to be a prominent feature of which the Applicant is somewhat surprised about because he does not believe he poses a risk to anyone. Dr Kar stated that anger is a personality trait.[39]
[39] Exhibit 1, T Documents, T12, page 57, Report of Dr Kar.
Dr Kar opined that based on the information the Applicant gave him, he had a harmful and excessive alcohol intake. Dr Kar provided that excessive or heavy alcohol use aggravates personality traits and anger and causes sleep disturbances.[40]
[40] Exhibit 1, T Documents, T12, pages 57 and 59, Report of Dr Kar.
Dr Kar opined:[41]
I have not seen evidence of an anxiety disorder or any other psychiatric condition caused by his work. He does not have a Post-traumatic Stress Disorder from his years of policing work during which time he saw many critical incidents which would be viewed by the lay population as horrific and traumatic. The information I have does not indicate that [the Applicant] was severely affected by the events. …
[The Applicant] reports he has performed well at his work for many years. All psychiatric conditions cause a significant impact on functioning and/or significant distress. Normal work performance is reliable evidence of absence of psychiatric disorder or psychiatric impairment.
From the self-report of [the Applicant], he has been using alcohol excessively since about August. I believe over time his alcohol intake affected his underlying personality characteristics and in particular, aggravated his anger and his interpersonal relationships in the workplace.
Regarding the question of whether or not he had suffered from a psychiatric condition at the time of the claimed date of injury of 26.09.2010, it is difficult to comment without objective collateral information. However, there is no objective information to support that he had a psychiatric condition or an injury, because of his normal work performance between 2010 and 2018. Normal work performance is reliable evidence of absence of psychiatric disorder and psychiatric impairment.
[41] Exhibit 1, T Documents, T12, pages 58-59, Report of Dr Kar.
In a report dated 11 March 2019,[42] Dr Nguyen, psychiatrist, noting that he was the Applicant’s treating psychiatrist and had utilised his clinical notes, information provided by

Dr Ho and having reviewed the report of Dr Kar dated 31 December 2018, diagnosed the Applicant as presenting with PTSD, other trauma and stress-related disorder and reactive anxiety/depressive episodes which he opined have at times been complicated by his alcohol use.[43] Dr Nguyen opined that those conditions can be attributed to the Applicant’s exposures during his service with the QPS and AFP. Dr Nguyen reported that:[44]
[The Applicant] experiences intermittent reactive episodes of anxiety and depression, with [sic] appears to decline when triggered by certain situations. He has been noted to be agitated and angry in the past and this appears to be reduced in intensity. Of note, [the Applicant] reported a previous history of frequent alcohol use, often occurring during the period of their holiday. At times, he has consumed increased use of alcohol during the days that he doesn’t work. There are no other substances that he utilises.
[42]    Exhibit 1, T Documents, T19, pages 230-232, Report of Dr Nguyen.
[43]    Exhibit 1, T Documents, T19, page 230, Report of Dr Nguyen.
[44]    Exhibit 1, T Documents, T19, page 231, Report of Dr Nguyen.
In a letter dated 26 November 2019, Mr Langley in responding to a summons to produce his records to the Tribunal stated that he held no records of any of his counselling sessions with the Applicant. Mr Langley provided that the nature of his relationship with the Applicant was casual and informal and he saw him on an ad hoc basis 4 or 5 times a year, there was no formal treatment plan.[45]
[45] Exhibit 3, Further Supplementary T Documents, ST1, page 1, Letter from Mr Langley.
On 5 September 2019, the Applicant attended an independent medical examination appointment with Associate Professor Michael Robertson, Consultant Psychiatrist.[46] In the resulting report dated 6 September 2019,[47] Associate Professor Robertson diagnosed the Applicant’s condition as generalised anxiety disorder, previous alcohol use disorder and underlying narcissistic personality traits.[48]
[46]    Exhibit 4, Joint Hearing Bundle, A1, pages 1-3, Request for Report: Associate Professor Robertson.
[47]    Exhibit 4, Joint Hearing Bundle, A2, pages 4-14, Report of Associate Professor Robertson.
[48]    Exhibit 4, Joint Hearing Bundle, A2, page 11, Report of Associate Professor Robertson.
Associate Professor Robertson provided that he agreed with Dr Kar that there was no evidence of current PTSD and that alcohol abuse can exacerbate underlying personality vulnerabilities. He however disagreed with Dr Kar “de-emphasising of the significance of [the Applicant’s] traumatic stress”.[49] Associate Professor Robertson provided that in his view, the Applicant’s cumulative exposure to the traumatic stress, both with the QPS and AFP were the main factors in the onset of his generalised anxiety disorder. He opined that the Applicant’s alcohol use was a comorbid condition and likely affected a significant exacerbation of his underlying personality vulnerabilities and undoubtedly his chronic anxiety and mood disturbance.[50]
[49] Exhibit 4, Joint Hearing Bundle, A2, page 10, Report of Associate Professor Robertson.
[50] Exhibit 4, Joint Hearing Bundle, A2, pages 10-11, Report of Associate Professor Robertson.
Associate Professor Robertson, when asked about whether the Applicant’s current condition consisted of an aggravation of a pre-existing condition opined that he would apportion 50% causation to the Applicant’s employment with the QPS and 50% with his employment with the AFP, which by such logic, employment with the AFP exacerbated a condition that first emerged during a period working with the QPS.[51]
[51] Exhibit 4, Joint Hearing Bundle, A2, page 12, Report of Associate Professor Robertson.
On 17 March 2020, Dr Kar provided a supplementary report[52] taking into account consideration of all the summonsed records, section 71 records, the Applicant’s statement and the report of Associate Professor Robertson dated 6 September 2019.[53]
[52] Exhibit 4, Joint Hearing Bundle, R1, pages70-75, Request for Supplementary Report: Dr Kar.
[53] Exhibit 4, Joint Hearing Bundle, R2, pages 76-104, Supplementary Report of Dr Kar.
In providing this report Dr Kar advised that he had considered the objective file information and his earlier report dated 31 December 2018. He provided a detailed analysis of the material before him.[54] Dr Kar remained of the opinion that the Applicant did not sustain a new condition or an aggravation of a pre-existing condition and in fact did not suffer a psychiatric disorder as a result of his employment with the AFP or at all. Dr Kar remained of the view that the Applicant had harmful and excessive alcohol use, which was evidenced by his liver function tests (LFTs) being deranged.[55]
[54] Exhibit 4, Joint Hearing Bundle, R2, pages 77-79, Supplementary Report of Dr Kar.
[55] Exhibit 4, Joint Hearing Bundle, R2, pages 92-94, Supplementary Report of Dr Kar.
Dr Kar remained of the opinion that the Applicant’s use of alcohol aggravated his underlying personality attributes, anger and irritability, and caused him to experience interpersonal difficulties.[56]
[56] Exhibit 4, Joint Hearing Bundle, R2, page 95, Supplementary Report of Dr Kar.
Dr Kar emphasised the importance of objective evidence in diagnosing psychiatric conditions. He stated that there was no objective evidence in the Applicant’s file of any depressive disorder, anxiety disorder or PTSD or that the Applicant had developed symptoms gradually, which included hypervigilance, heightened anxiety, depression, levels of paranoia, cued flashbacks and nightmares and difficulty sleeping. Dr Kar said that the Applicant’s personality was not contributed to, to any significant degree, by any incident or aspect of his employment with the AFP as personality is pre-existing and enduring.[57]
[57] Exhibit 4, Joint Hearing Bundle, R2, page 89, Supplementary Report of Dr Kar.
Dr Kar in reviewing the material before him made reference to the objective evidence that identified previous interpersonal difficulties experienced throughout the Applicant’s employment with the AFP and in particular noted that he had a similar response to a PDA review in 2015 albeit less severe that than he had in November 2018.[58]
[58] Exhibit 4, Joint Hearing Bundle, R2, pages 93-94, Supplementary Report of Dr Kar.
Dr Kar stated he disagreed with the diagnosis made by Associate Professor Robertson on the basis that there is no objective evidence that the Applicant has ever presented to anyone as anxious at any time, further his file shows no evidence of anxiety, phobia, fear, avoidance or panic at any time. His objective file shows at certain intervals, his behaviours were associated with his personality, anger and attitude.[59]
[59] Exhibit 4, Joint Hearing Bundle, R2, page 85, Supplementary Report of Dr Kar.
On 20 May 2020, Associate Professor Robertson provided a supplementary report addressing Dr Kar’s supplementary report of 17 March 2020.[60] Associate Professor Robertson opined that the symptoms the Applicant reported to him were consistent with DSM V diagnosis of generalised anxiety disorder.[61]
[60] Exhibit 4, Joint Hearing Bundle, A5, pages 43-47, Supplementary Report of Associate Professor Robertson.
[61] Exhibit 4, Joint Hearing Bundle, A5, pages 45, Supplementary Report of Associate Professor Robertson.
Associate Professor Robertson stated that Dr Kar was incorrect in stating that generalised anxiety disorder is not attributable to external factors, and while correct to state that the cited pattern of derangement of LFTs are consistent with alcohol abuse that would challenge the Applicant’s reported modification of alcohol use at the time of his assessment, Dr Kar had indulged in a non sequitur in stating that alcohol abuse is the cause of the Applicant’s problems and therefore facts in his employment are not relevant. Associate Professor Robertson provided that alcohol misuse is a frequent comorbid condition with anxiety disorders and in this instance is better categorised as a comorbid condition with the Applicant’s generalised anxiety disorder.[62]
[62] Exhibit 4, Joint Hearing Bundle, A5, page 46, Supplementary Report of Associate Professor Robertson.
Associate Professor Robertson opined that Dr Kar’s formulation that the Applicant’s personality as angry was superficial and the implication that the Applicant was an angry alcohol abuser who was aggrieved by his employer is not supported by the totality of the history of the condition.[63]
[63] Exhibit 4, Joint Hearing Bundle, A5, page 46, Supplementary Report of Associate Professor Robertson.
On 29 May 2020, Dr Kar provided a further supplementary report[64] in response to Associate Professor Robertson’s supplementary report dated 20 May 2020.[65] Dr Kar confirmed that there is no significant difference between the diagnostic criteria of generalised anxiety disorder between DSM IV and DMS V, he said he had, had regard to both sets of criteria in his assessment of the Applicant.[66]
[64]    Exhibit 4, Joint Hearing Bundle, R4, pages 107-121, Supplementary Report of Dr Kar.
[65]    Exhibit 4, Joint Hearing Bundle, R3, pages 105-106, Request for Supplementary Report: Dr Kar.
[66]    Exhibit 4, Joint Hearing Bundle, R4, pages 108-109, Supplementary Report of Dr Kar.
Dr Kar explained why he considered the Applicant did not meet the criteria for a diagnosis of generalised anxiety disorder. Dr Kar stated that it is not acceptable in psychiatry to interpret a person’s episodes of anger when it is abnormal and excessive and causing fear in co-workers, as anxiety. He said that irritability as described in DSM V generalised anxiety disorder is not abnormal and excessive anger.[67]
[67] Exhibit 4, Joint Hearing Bundle, R4, pages 109-112, Supplementary Report of Dr Kar.
Dr Kar stated that DSM V generalised anxiety disorder cannot be diagnosed in the absence of chronic and pervasive anxiety and worry, using only the rare episodes of anger that frightens co-workers. He stated that the review of the objective file of the Applicant shows that he was never a worrier and there was no report of him showing anxiety or abnormal or excessive worry at any time by any observer or person who have worked with him.[68]
[68] Exhibit 4, Joint Hearing Bundle, R4, page 110, Supplementary Report of Dr Kar.
On 25 June 2020, Associate Professor Robertson provided a further supplementary report[69] in response to Dr Kar’s further supplementary report dated 29 May 2020.[70] Associate Professor Robertson stated that he remains of the view that the Applicant demonstrates features of generalised anxiety disorder based on clinical grounds in that his alcohol use is problematic. Associate Professor Robertson stated that as Dr Kar is not minded to revising his position that the Applicant does not have a demonstratable psychological injury then it is evident that there appears to be a matter of reasonable minds differing.[71]
Oral Evidence provide by Associate Professor Michael Robertson, Consultant Psychiatrist
[69]    Exhibit 4, Joint Hearing Bundle, A7, pages 49-51, Supplementary Report of Associate Professor Robertson.
[70]    Exhibit 4, Joint Hearing Bundle, A6, page 48, Request for Supplementary Report: Associate Professor Robertson.
[71]    Exhibit 4, Joint Hearing Bundle, A7, page 50, Supplementary Report of Associate Professor Robertson.
At Hearing Associate Professor Robertson gave evidence by MS Teams under affirmation. Associate Professor Robertson confirmed his name and qualifications and that he prepared reports in relation to the Applicant dated 6 September 2019, 20 May 2020, 25 June 2020 and 30 March 2021.[72]
[72] Transcript, page 42.
Under examination-in-chief, Associate Professor Robertson told the Tribunal that:[73]
·Alcohol misuse is a frequent comorbid problem for people with generalised anxiety disorder. Alcohol is a short-term anxiety relieving medication, but over the longer term makes the generalised anxiety disorder symptoms worse.
·In his clinical practice he has had occasion to treat many police officers and former police officers for PTSD and other things.
·When asked if he had noticed any particular patterns in terms of his clinical work with current and former police officers and the role of alcohol in treating psychiatric conditions such as PTSD or generalised anxiety disorder, it is a frequent problem with police officers. It is often the reason they come for treatment because their alcohol use has had professional, social or physical consequences. It is a significant barrier in treatment progress as you cannot get much done until you get the alcohol use under control and for many it is not a change they want to make. Alcohol is a significant challenge, or comorbid alcohol misuse is a significant challenge in the care of this patient group.
·Literature confirms that women are more likely to seek help than men are.
·There are complicated cultural factors in the New South Wales Police Force, it is a very psychologically unreconstructed group, they have quite pejorative views about mental illness and that is frequently an issue, a barrier for them seeking treatment.
·He thinks the AFP also has a fairly toxic culture when it comes to psychologically injured officers. It is often the case that officers that are living with long-term psychiatric problems, such as generalised anxiety disorder, alcohol misuse, PTSD, will not seek help for reasons of the scorn of their peers, fear that their career progression may be affected, fear that a psychiatric disorder may be used against them for other reasons.
·He had worked with New South Wales, Queensland and Australian Federal Police officers.
[73] Transcript, pages 43-45.
On cross-examination, Associate Professor Robertson:[74]
[74] Transcript, pages 45-67.
·Confirmed that when he conducts his assessments, he takes into account the history that an examinee provides to him, as well as the mental state examination that he conducts and any file material or clinical records he is provided with.
·Confirmed that those three sources of information all inform the view that he ultimately reaches, particularly with respect of diagnosis and causation.
·Was taken to the Applicant’s Subjective History – Online Questionnaire completed in relation to his application for employment with Serco on
23 June 2020, about six months after he examined the Applicant. He was advised of the questions that the Applicant, on cross-examination, gave evidence that the answers he provided were false.
·When asked whether the fact that the Applicant knowingly gave false answers to a series of questions about his medical history at a time contemporaneous to when he saw him, when he was providing his supplementary reports and while the Tribunal proceedings were on foot would cause him to question the Applicant’s reliability as a historian, said it raised red flags.
·When taken to his report dated 6 September 2019, confirmed it was his understanding that the Applicant’s mental state caused the breakdown of his marriage.
·Said he was not aware that the Applicant engaged in an extramarital affair while he was in the Solomon Islands or that he had extended his stay there without consulting his wife.
·When asked if not telling him about these circumstances caused him some concern about the accuracy of the Applicant’s reporting to him, said that there are multiple issues that come up from that and multiple ways it can be interpreted. He did not form the impression that the Applicant was taking him for a ride. He answered questions as legitimately as he could.
·He accepts that there is a propensity for dishonesty.
·When referred to his comment about the Applicant’s LFTs would challenge the reports made to him by the Applicant regarding his modification of alcohol use and it was put to him that when looking at all of the various instances of the Applicant not being forthcoming with the truth, and indeed, lying that they would cumulatively cause him to doubt any history the Applicant provides him that is not corroborated in some way with documentary material, said yes.
·Confirmed that he had not seen the Serco document previously referred to when providing his reports nor had he been provided with the Serco Asia Pacific summons material.
·He was not aware of documents produced by Corporate Protection Australia Group, Secure Corp Security Services Australia Group or the Department of Defence. The focus of the correspondence was commenting on Dr Kar’s opinion, and he on his, on the semantics of generalised anxiety disorder and whether being angry made you a narcissist and things of that nature. They were not really the focus of his communication with the Applicant’s solicitor at that time.
·The cardinal feature of generalised anxiety disorder is excessive worry over minor matters.
·Agreed that the Applicant commenced working for the QPS in 1994 and the AFP in June of 2008.
·When taken to the Defence Medical Board Examination Records of September 1997 and November 1998 and advised that the Applicant gave evidence that he answered the questions asked of him in the questionnaires honestly, said that he accepted that there was nothing in the documents that would indicate the Applicant was suffering from any psychological symptoms at that point.
·Was taken to a Law Enforcement Adjustment Rating Report dated 23 March 2006, 7 September 2007, and 28 September 2007, a PscyhEval Personality Questionnaire Interpretation document dated 29 March 2006, 17 September 2007 and 8 October 2007 and Psychological Assessments dated 9 April 2006 and 3 November 2007 that referred to the Applicant maybe having a rigid inflexibility in his thinking and that he may be unusually sensitive to criticism and that the Applicant presented himself as less anxious than most people.
·Was taken to DASS21 forms completed by the Applicant on 26 September 2007 and 7 August 2008 and advised that the Applicant gave evidence that he answered all the questions on the form honestly when he completed it and that he had said none of the questions applied to him other than “I find it hard to wind down”. Said that straight line zeros is often quite significant.
·When put to him that where a person has accepted and admitted to knowingly misleading their employer and have provided false responses you cannot give them the benefit of the doubt, said he absolutely agrees. What he is saying is that when he sees a DASS21 that shows that sort of straight line he thinks there is something not right, the person is playing down a lot and you see it a lot in first responders and in the military. That was the point he was trying to make, he was not seeking to exculpate anyone for their apparent dishonesty.
·When put to him that the material he was taken to is the only material that goes to the Applicant’s psychological state during the period that he was employed by the QPS and that there was no indication in any of the material that the Applicant was displaying excessive anxiety or worry, said he agreed there was nothing in the psychometric data to indicate that. However, said you have to question whether to rely on psychometric data to make a clinical evaluation, while there has been a pattern of unreliability identified, that it is not 100 percent indicative that there is nothing wrong with the Applicant.
·Agreed that just because he has seen something in relation to other police officers does not mean it applies to the Applicant’s case.
·Was taken to the Phycological Debrief dated 9 March 2010 and attached forms and questionnaire (as outlined in the Applicant’s cross examination above) in relation to the Applicant’s deployment to the Solomon Islands and advised that the Applicant gave evidence that he answered the questionnaires honestly and that he agreed with the psychologist report and that he did not report any of his difficulties he now says he experienced to the debriefing psychologist, after this period in the Solomon Islands.
·Was taken to the Stones Corner Medical Centre summons documents which show that the Applicant started to attend the practice on 7 November 2013, however the first time that psychological symptoms are reported is on 20 November 2018.
·When put to him that this material provides the full summary of medical documents or information that may cast some light on the symptoms that the Applicant was suffering from during the period of his employment with the AFP, that there was no indication in any of the material of the Applicant displaying excessive anxiety and worry, said “Not cotemporaneous with those documents, no.”
·When put to him that when looking on the balance of probabilities, having regard to what is known about the Applicant as a historian and the state of the medical files and all of the material that is before us, it indicates the absence of a psychological disorder during that period, said it indicates during that period, but a substantial percentage of these problems emerge many years afterwards.
·Said he agrees that there is no contemporaneous indications from what he thinks are some fairly suspicious psychometric assessments, not so much the way they are done but the responses to them, that indicate that either the Applicant was minimising his symptoms or he did not endorse or acknowledge them.
·Said what was clear was that when he saw the Applicant he gave him a credible description of symptoms of generalised anxiety disorder.
·Said he thinks it was significant that the Applicant denied symptoms of PTSD, he was resolute to say, he did not have those symptoms, he was drinking too much and outlined his symptoms of anxiety.
Oral Evidence provided by Dr Prabal Kar, Consultant Psychiatrist

At Hearing Dr Kar gave evidence by MS Teams under affirmation.[75] Dr Kar confirmed his name and qualifications and that he examined the Applicant on 18 December 2018 and prepared a report in relation to the Applicant dated 31 December 2018, together with supplementary reports dated 17 March 2020 and 29 May 2020 which read together accurately reflect the opinion truly held by him.[76]
[75] Transcript, page 73.
[76] Transcript, pages 73-74.
Dr Kar confirmed that he had been provided with the reports of Associate Professor Robertson dated 25 June 2020 and 30 March 2021 and that they do not cause him to change or amend the opinions he expressed in any of his reports in anyway.[77]
[77] Transcript, page 74.
On cross-examination, Dr Kar:[78]
[78]    Transcript, pages 74-97.
·Confirmed he had access to a copy of the Applicant’s statement prepared on
14 February 2020 when he prepared his report dated 29 May 2020.
·Said there was nothing in the file that indicated the Applicant was suffering from regular or constant worry.
·Said when he refers to the file, he means everything he has been given.
·Said, that if a person is able to control their worry and their worry is not apparent to anyone else that means it is not significant. If a person can supress his own worry, whatever he may be worrying about, even based on his past experiences, it is not significant if it does not have an overt impact on the persons function or on their distress, and it therefore does not amount to a psychiatric condition.
·Said that in his reports he has referred to the Applicant’s anger issue as he would not interpret the outbursts in 2015 or 2018 as expressions of suppressed worrying over years that suddenly exploded in anger. If someone is a worrying person with generalised anxiety disorder, he would expect them to have an anxious breakdown, if anything because they may have serious anxiety. However, the Applicant did not come across in his assessment of him and with his history as anxious. The word “anger” comes up multiple times in his file, even from him. When he saw the Applicant for the first time, he regretted that he had overreacted at that time because of the way he saw things. Worry was not the issue, anger was.
·He agrees that family support is important and while he would expect the Applicant would have missed his family while he was in Canberra, he would not expect it to result in a psychological/psychiatric outcome.
·When put to him that a lot of police officers unhealthily rely on alcohol to deal with the stress of their jobs, said that the reasons for using alcohol varies and that he would not say that anyone is dependent on alcohol just because of the stress of their job, it is a pattern of behaviour that is not uncommon in the wider population and is a matter of personal preference.
·Said he did not identify a psychiatric condition that led the Applicant to drink.
·When it was put to him that the following excerpt from the history taken by Associate Professor Robertson:
[The Applicant] reports his current symptoms remain in the realm of hyperarousal and irritability. He describes experiencing physical manifestations and anxiety, including gastrointestinal disturbance, headaches and dry mouth. He has developed nocturnal bruxism and has sustained significant dental injuries. He does not use an upper occlusal splint. He has had periods of panic, usually in limited symptom form. He experiences chronic middle insomnia. He does not have nightmares. Dysphoric rather than depressed. He describes mild impairment of cognitive function that it easily distracted, for example, he is unable to follow plots of movies and prefers short TV programs. He tends to ruminate over his workplace difficulties and tends to overthink things.
and the following excerpt from the Applicant’s statement about his time in Canberra did not paint a picture of a healthy man and asked if he accepted the proposition that in terms of his health the Applicant was outside the boundaries of normal human behaviour:
I then began to notice a change in me - I would only have a few hours of broken sleep as I would be constantly waking up. The separation from my partner triggered many negative emotions which I'd experienced when deployed overseas. I felt I had no support network and I could not talk to my partner about my experiences. Your traumatic experiences of working day‑to‑day in first response policing triggered memories and emotions from previous traumatic experiences during my service with GPS and AFP. I started to isolate myself from my colleagues and began to grind my teeth.
As a result of grinding my teeth I cracked two teeth and lost two fillings. I seemed to have lost the ability to enjoy activities, would worry constantly about work, and was hypervigilant as I was always looking for a threat because I would be constantly seeing offenders whenever I went out in public. I would frequently be reliving traumatic events when I drove near the places those events had occurred. I was becoming angry and irritable at work and I believed this was going to affect my work relationships.
Said that was a history and does not sound like a person who is well and that if the statement was accepted he would say yes that the Applicant’s health was outside the boundaries of normal human behaviour, if he was having all of the symptoms that he described.
·Said that he assessed the Applicant in December 2018 and also when he looked at the file when he prepared his first supplementary report and there was no evidence in the file that this was an anxious, fearful, avoidant or traumatised person. There was no objective evidence to support it. The Applicant is stating all of these things, but it is not consistent with the objective history that is there.
·Said it seems like the Applicant has drawn on his experiences and has reported a number of symptoms, but they do not match the clinical picture outlined in the information forwarded to him. The Applicant had not reported that he had gotten very upset when he got a negative review in 2015 from one of his supervisors. The documentary evidence showed that the Applicant got very angry immediately at the time and then again in 2018, because he believed that he was a good worker and had a good work performance, which is his subjective view.
·Said:
So if an officer is not well mentally, in some ways - maybe in all the ways that [the Applicant] has described here - then it would start to have - it comes back to the basic criteria for diagnosing a psychiatric condition, and under DSM (indistinct) DSM‑IV writes, "All psychiatric conditions for significant distress and significant impairment," of both. So if the person is not significantly distressed or significantly impaired, and [the Applicant] himself insists that he's always been a good worker, and whenever he was given a negative feedback is because, you know, it was bullying or it was unfair. So obviously in his own view there is no evidence that, you know, that he felt subjectively that he was impaired in his work, and objectively, apart from his behaviour that the supervisors found difficult, they found that, you know, he seemed to have some sort of an attitude issue, and that's been noted in 2015, again in 2018, but - and I take you to (indistinct) personality, but they have never said that he's a poor worker, you know. So there is no objective evidence of a man experiencing long‑term traumatisation that is having an impact on him. So it seems like he has brought up these issues, you know, in a situation where suddenly he finds himself getting, you know, adverse disciplinary and industrial outcomes after he got into, you know, the trouble, having his (indistinct) taken off him and being stood down. He suddenly realised he had overreacted. He when I saw him the first time. It seems after that - when that incident happened, the first thing he did the next day was go to his GP and tell the GP I've got PTSD from - and I'm a police officer, I've seen - you know, I need to be referred to a psychologist. So it seems like this - or even though he may have seen horrific things outside the normal range of human experiences, and he has been overseas and seen horrible things, he didn't actually have a psychiatric condition for me, but he brought it up only in - suddenly when he realised that he was facing industrial and disciplinary issues, and it seemed to have been, you know, something that he fell back on only after he got stood down.
·     When taken to an email of 22 October 2018 that refers to the Applicant mentioning that his time in ACT Policing had triggered pre-existing PTSD and it was put to him he needed to revise his evidence, said yes in the sense that he mentioned the triggering of his PTSD before he got stood down, but he still says it was a comment made by the Applicant after a negative comment on his PDA was raised.
·     Said there was no objective evidence in the Applicant’s history that he had significant distress or significant impairment, or any psychiatric condition, until the time when evidently, he brought it up himself and that potential negative comments in his PDA would affect him. So, it seems like he again was responding to the PDA situation as he had previously done once in 2015, when another supervisor’s negative comments on a PDA seemed to affect him quite severely.
PARTIES CONTENTIONS
Applicant’s Contentions[79]
[79]    Transcript, pages 99-108 and 119-124.
The Applicant drew the Tribunal’s attention to the Federal Court decision in Comcare v Mooi [1996] FCA 508; 69 FCR 439; 137 ALR 690 and the resulting proposition that it is not necessary to identify the employees’ condition with a label of a recognized medical condition, it is nevertheless essential for the employee to demonstrate that he or she is “in a condition that is outside the boundaries of normal mental function and behaviour”: Drummond, J at 69 FRC 444.
The Applicant contended that ultimately the debate about diagnosis of the Applicant’s condition does not matter in terms of compensability.
The Applicant contended that he put to Dr Kar various symptoms from the Applicant’s statement and history taken by Associate Professor Robertson and he essentially said that if the Applicant genuinely had those symptoms then yes, he is acting outside the boundaries of normal human behaviour, so the Mooi test is satisfied.
The Applicant submitted that the Tribunal should prefer the evidence of Associate Professor Robertson, a psychiatrist of long standing who had a careful look at the issue and if the Tribunal felt it needed to put a diagnostic tag on the Applicant’s condition that it look favourably on the diagnosis he offered.
The Applicant contended it was uncertain what material Dr Kar was looking at as he was provided with a lot of material, his evidence was that he could not find any objective evidence of worry. The Applicant submitted that he put to Dr Kar that just because you are worried or excessively worried does not mean you are necessarily going to share that with people, as we know it is a matter of common human experience that people do not always share everything that is on their mind.
The Applicant contended that the Tribunal should take care with the evidence provided by Dr Kar as he was garrulous in his evidence and that he would sometimes give evidence in relation to questions that were not even asked.
The Applicant contended that the existence of an ailment is readily satisfied and that in looking at section 5B of the SRC Act there was substantial employment and exposure.
The Applicant contended that it was his case, based on the opinion of Associate Professor Robertson that he already had some low-level mental ailment, whether you want to say that is PTSD or generalised anxiety disorder, or just the beginnings of such a thing, no one can ever say.
The Applicant contended that when he went to work in Canberra with ACT Policing in
mid-2018 things started to unravel. Stating to his supervisor that his time in ACT Policing had triggered pre-existing PTSD was his way of trying to make sense of what was happening to him. So, he grabbed the label of PTSD because everyone has heard of that, particularly in policing. The Applicant submitted that shortly before he had that discussion with his supervisor, he reached an epiphany, so within a month he put in the compensation claim.
The Applicant contended that the event that occurred on 8 November 2018 was of no significance or relevance, as if you look at the history, he was already sick by that time.
The Applicant submitted that he did not do the right thing by not being truthful on the Serco pre-employment screen, but he did get the job and as we know from human experience people do foolish things and people do tell lies. The Applicant asked that what the Tribunal look at is that he has tried to get on with it, he is not quite there yet, he still needs some ongoing support and treatment, but being away from policing work is going to do him some good.
The Applicant contended that his case was that there was an aggravation of an undiagnosed ailment that came about a few months after he started his posting at
ACT Policing in Canberra.
Respondent’s Contentions[80]
[80] Transcript, pages 108-119 and 123 and 125.
Prior to closing submissions, the Respondent’s Counsel provided a written outline of submissions, which were consistent with those delivered orally.[81]
[81] Respondent’s Outline of Submissions, dated 25 June 2021, pages 1-24.
The Respondent contended that its primary case is that the Applicant did not suffer an injury as that term is defined in section 5A of the SRC Act because there is no ailment. The Respondent relied on the opinion of Dr Kar and provided the following contentions:[82]
[82]    Respondent’s Outline of Submissions, dated 25 June 2021, pages 8-14.
25.According to Dr Kar, the Applicant has pre-existing personality vulnerabilities which have been aggravated by his harmful alcohol use, manifested in his behaviour, moods, anger, interpersonal difficulties at work, and thoughts of self-harm. The basis for Dr Kar’s opinion in this regard is:
(a)      there is no objective evidence of traumatisation;
(b)     the Applicant does not display excessive anxiety and avoidance; indeed,
        he reported to Dr Kar that he wanted to return to work;
(c)     anger appears to be a prominent feature; his partner, who was present for
        the entire interview, reported to Dr Kar that she was fearful of his anger;
(d)     the Applicant’s harmful and excessive alcohol intake aggravated
        abnormal personality traits and anger;
(e)     the Applicant’s normal work performance is reliable evidence of there
        being an absence of psychiatric disorder or psychiatric impairment.
26.Dr Kar maintained his opinion in his supplementary report of 17 March 2020
and added to the reasons why the Applicant’s issue related to his personality
vulnerabilities, as follows:
(a)     there is no objective evidence to support his claim that he first experienced
        psychiatric symptoms in 2010;
(b)     there was objective evidence of issues associated with his personality,
        with anger, behaviour and his attitude in 2015 and 2018. That is, the
       Applicant was sensitive to perceived negative feedback or perceived
       criticism by his supervisor in his PDA in 2015 and in 2018;
(c)    there is no objectively demonstrated abnormal fear or abnormal anxiety or
       abnormal and excessive distress or even minor distress and has never
       displayed fear avoidance;
(d)   reports of the Applicant’s work performance verify that he did a very good job. This is reliable and objective evidence of absence of any psychiatric condition or psychiatric impairment;
(e)   there is no objective evidence that [the Applicant] had developed a psychiatric condition at any time;
(f)    psychiatric conditions invariably cause significant distress or significant impairment or both, personality disorders do not always cause distress and impairment and it is possible for a person with personality disorder to have normal or even good work performance.
27.Dr Kar considered that the Applicant has attempted to use his claimed mental health condition to explain his behaviour and to deny some of the allegations.
28.Dr Kar conceptualised the Applicant’s personality vulnerabilities as being abnormal. He explained, ‘Behaviour that is abnormal and inconsistent with one’s culture, for [the Applicant] for culture of the QPS and the AFP, is sufficient to demonstrate his deviation from the norm of behaviours expected from other workers. It is this variation from the norm that shows abnormalities of personality.’ Tellingly for the purposes of assessing whether the Applicant suffers from a psychological ailment for the purposes of the SRC Act, in his supplementary report of 17 March 2020 Dr Kar opined that ‘his response or behaviour on that day [8 November 2018] was in keeping with his underlying personality which was aggravated by his use of alcohol.
29.He concluded in his supplementary report of 17 March 2020:
I have not diagnosed [the Applicant] with any specific personality disorder. I believe he has abnormalities or vulnerabilities of his personality. The abnormalities of his personality, primarily with anger, was aggravated by his excessive use of alcohol. Anger is a personality trait. Anger is aggravated by alcohol. Alcohol causes relationship breakdown, occupational difficulties and interpersonal difficulties, all of which have occurred for [the Applicant].
30.According to Dr Kar there is no evidence of any specific psychiatric condition that he developed at any time, whether it was work-related or not. Dr Kar described the Applicant’s personality abnormalities as ‘enduring’.
31.According to Dr Kar, the Applicant’s aggravation of anger is likely due to a combination of his underlying personality characteristics, aggravated by his harmful and excessive alcohol intake. In his supplementary report of
17 March 2020 Dr Kar summarised his opinion when he stated:
[The Applicant] has no psychiatric condition apart from his premorbid personality and his harmful alcohol use aggravating his premorbid personality abnormalities. I have not diagnosed him with any other condition apart from his enduring pre-existing condition which is his personality along with its abnormalities and tendency to anger which has been aggravated by his increased alcohol use.
There is no objective evidence in [the Applicant’s] file of any depressive disorder, anxiety disorder or PTSD. His personality was not contributed to, to any significant degree, by any incident or aspect of his employment with the AFP as personality is pre-existing and enduring. Personality forms by early adulthood.
32. Although he also considered the ‘critical factor’ to be the performance appraisal on 8 November 2018. Dr Kar explained:
The precipitating factor appears to have been the negative performance appraisal comment on a background of his personality vulnerabilities and anger aggravated by his chronic excessive alcohol use. His anger, mood and interpersonal issues, contributed to by his personality and aggravated by his alcohol use, is likely to have been unstable. He had responses to his immediate stressors. His underlying personality was destabilised by the intake of alcohol taken in varying quantities over time.
33. He concluded by opining that:
The factors that [the Applicant]has nominated do not contribute to any current psychiatric condition. He continues to have the impact on his personality and anger from his harmful and excessive use of alcohol. The incident of 08.11.2018 was a trigger for his underlying anger. The incident on 08.11.2018 did not cause him a psychiatric injury. He (over) reacted in keeping with his personality. Personality is enduring and pre-existing.
34. The question that arises from Dr Kar’s opinion is whether, for the purposes of the SRC Act, the Applicant has suffered something that can be described as a mental ailment. ‘Ailment’ is defined to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development’ (s 4 SRC Act).
35. The leading case authority on this question is Comcare v Mooi [1996] FCA 1587. In recording the findings of the Tribunal in Mooi, Drummond J said at [8]:
…It seems clear that the Tribunal found that the respondent was entitled to compensation on the basis that, although he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of the work-related stress he was subjected to, the condition that those stressors contributed to produce in him, which the Tribunal described as ‘psychological stress’ and ‘work-related stress’, had an effect on his capacity for work and was still sufficient to amount to an injury within s 14 ….
36.Drummond J held this approach to be erroneous. His statement of principle is found at [12] (emphasis added):
…so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct application of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1).
37.At [16], Drummond J confirmed that, ‘Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.’
38.According to Mooi, the question is whether the Applicant, having regard to his personal circumstances, has a condition outside the boundaries of normal mental functioning and behaviour.
39.Dr Kar does not believe that the Applicant does suffer from such a condition. While the Applicant’s behaviour was abnormal when measured against others, it was not outside the boundaries of the Applicant’s normal mental functioning and behaviour given that the personality vulnerabilities are an enduring part of his constitutional personality.
40. [Withdrawn]
41. [Withdrawn][83]
[83]    Concerns were raised by the Applicant after the Hearing in relation to references made by the Respondent to the decision of the High Court of Australia in Military Rehabilitation and Compensation Commission v May [2016] HCA 19. Subsequently the Respondent advised it did not rely on the May decision and withdrew its submissions at paragraphs 40 and 41.
42.Dr Kar’s opinion supports a finding that there has been no psychological ailment or injury for the purposes of the SRC Act.
43.In addition to the matters relied on by Dr Kar to demonstrate that the Applicant’s aggressive behaviour is part of his personality, the following material is directly relevant to that fact:
(a)   In the Applicant’s Evaluation and Development Report prepared for the purposes of his Defence service on 15 September 1998, it was stated that ‘his aggressive nature needs to be tempered and he will involve himself in less verbal confrontations as a result’ and he ‘relates very well with his subordinates, but still needs to work on his communication with senior personnel in the LOY environment’.
(b)   In the Applicant’s Evaluation and Development Report prepared for the purposes of his Defence service on 30 September 1999, it was stated, ‘a thoughtful Officer, he can tarnish his obvious ability to develop very workable plans by being overly aggressive in his discussions with NCO in particular’ and ‘a strong and aggressive leader he has managed to temper this with a thoughtful approach and gained the respect of all as a result’.
(c)   In the Applicant’s Evaluation and Development Report prepared for the purposes of his Defence service on 1 October 2002, it was stated, ‘can be abrasive. Had some ability pers issues to deal with this year. His ability to deal with these was limited until return of his PI Sgt’. The worst score the Applicant received (of ‘satisfactory’) was given for ‘human relations’.
(d)   The Law Enforcement Adjustment Rating Report dated 23 March 2006 anticipated that the Applicant ‘may be unusually sensitive to criticism’.
(e)   In the Applicant’s PDA which covered the period from March to August 2013 it was noted that ‘Kevin can offend people with his blunt and sometimes defensive approach. I think he needs to be more aware of this and take some steps to improve this aspect of his relating to others and communication style.’
(f)    After the Applicant was caught taking discarded Virgin uniforms and a trolley bag from a dumpster at the Logistics Warehouse and was confronted by AFP officers, the Applicant became ‘extremely agitated’.
(g)   In the Applicant’s PDA which covered the period from September 2013 to February 2014 it was noted that ‘Kevin has an unusual communication style and approach and needs to be aware of how this is perceived at times by others.’
(h)   When the Applicant was counselled about an incident that had occurred on 8 September 2018, the Applicant ‘became defensive really quickly presenting an aggressive demeanour.’ He yelled and lent forward and extended his hand and pointed in an aggressive manner. He was ‘very aggressive and intimidating in his demeanour, tone and volume.’
44. Dr Kar’s opinion is anchored to the available documentary evidence.
45.Dr Kar‘s reliance on that material in formulating his opinion results in his opinion being of greater value than any opinions that are formulated without the benefit of, or without reliance up on, that material (i.e., the opinion of A/Prof Robertson). That is because opinions formulated on the basis of the Applicant’s reported history alone are not reliable as the Applicant should not be taken to be a reliable historian.
46.The reason for that is perhaps best demonstrated by the health questionnaire the Applicant completed on 23 June 2020 for the purposes of his application for employment with Serco. Despite this Tribunal Application being on foot since May 2019, the Applicant stated in that questionnaire that:
(a)   In response to the question, ‘Have you had more than 2 weeks off work in the last 2 years for any illness or injury’, the Applicant answered ‘No’. He agreed in cross-examination that that was false and that he knew at the time of completing the form that his answer to that question was false;
(b)   in response to the question, ‘Have you ever had a work related illness or injury?’ the Applicant said that he had, and referred to a twisted right knee, a twisted left knee and a broken leg. No mention was made of a psychological illness or injury;
(c)   in response to the question, ‘Have you ever had a workers compensation claim?’ the Applicant said that he had, and referred to a claim in relation to a twisted left knee, a twisted right knee and his right ankle. No mention was made of a claim for a psychological illness or injury;
(d)   the Applicant said that he had not visited a health professional, for physical or mental health, in the past 12 months, despite him being examined by A/Prof Robertson on 5 September 2019. The Applicant said in cross-examination that he knowingly misrepresented the true state of affairs when he responded to this question;
(e)   in answer to the question, ‘Do you suffer, or have you ever suffered from…mental health illness or nervous disorder’, the Applicant answered ‘No’56. The Applicant admitted during cross-examination that he knowingly misrepresented the true state of affairs when he responded to this question;
(f)    in answer to the question, ‘Conflict or stress at work requiring treatment’, the Applicant answered ‘No’57. The Applicant admitted during cross-examination that he knowingly misrepresented the true state of affairs when he responded to this question; and,
(g)   in answer to the question ‘Has a relative or friend or a doctor of health worker been concerned about your drinking or suggested you cut down?’, the Applicant answered ‘No’58. The Applicant reluctantly agreed during cross-examination that his answer to this question was false. His reluctance to accept that his answer to this question was knowingly wrong when it patently is, is not demonstrative of a willingness to admit to past errors.
47.In these circumstances, the Tribunal ought only accept the Applicant’s evidence where it is corroborated by contemporaneous documentary evidence. That applies to the Applicant’s self-reporting, that is completely devoid of any documentary support, of symptoms dating back to 2010. The Applicant refers to visiting psychologists through the EAP program in 2010 and Mr Langley, counsellor, but there are simply no records to verify that fact. Indeed, Mr Langley wrote in his report of 26 November 2019 that the Applicant ‘expressed a desire that there would be no records kept of any meetings that we had, subsequently no records were ever kept.’
48.If the Tribunal prefers the opinion of Dr Kar, as it is invited to do for the reasons outlined above, it ought to conclude that there is no psychological ailment that is capable of amounting to an ‘injury’ for the purposes of the SRC Act.
49. For that reason alone, the reviewable decision ought be affirmed.
[Footnotes omitted]

In relation to the evidence of Associate Professor Robertson the Respondent contended that:[84]
[84]    Respondent’s Outline of Submissions, dated 25 June 2021, pages 16-17.
54. … the available contemporaneous evidence does not support A/Prof Robertson’s assessment that the Applicant was suffering from anxiety as a result of his QPS employment. Indeed, all of the psychological evaluations that were performed contemporaneously indicate that the Applicant was psychologically well. His opinion is therefore based entirely on the Applicant’s own self reporting. The documentary record is of greater value to the Tribunal and should be given greater weight than the Applicant’s own evidence. There is no contemporaneous material or any reporting to medical practitioners of psychological symptoms arising from the Applicant’s QPS employment (or in fact his AFP employment prior to the incident in November 2018). Stripped back, A/Prof Robertson has relied exclusively on the Applicant’s own subjective reporting, a method of evaluation that is not appropriate in a medico-legal context for the reasons outlined by Dr Kar and for the reasons outlined above.
55.A/Prof Robertson agreed in cross-examination that he wasn’t aware of various aspects of the Applicant’s history and hadn’t been provided with all of the relevant documents. It matters not that A/Prof Robertson did not think the Applicant was “taking him for a ride” when he examined him – the fact is, A/Prof Robertson’s opinion was not, and could not given what material was made available to him, based on all relevant information.
56.Moreover, nothing A/Prof Robertson said in his oral evidence assists the Applicant’s case. When the contemporaneous documents were put to A/Prof Robertson during cross-examination, he referred to some of the results of the DASS21 being concerning and the “potential explanation” being that he was functioning with a subclinical level of anxiety (like many first responders like police and Army personnel) and there was a gradual slow build up of stressors over the years and then following a significant event that was “out of character” the Generalised Anxiety Disorder emerged. However,
(a)   a “potential explanation” is not evidence that it is the explanation in the Applicant’s circumstances. This evidence raises nothing more than a ‘possibility’. When assessing the evidence and making findings in proceedings such as this the reasonable satisfaction standard must apply. Reasonable satisfaction should not result from indefinite evidence or indirect inferences. The balance of probabilities test does not authorise a decision maker to choose between guesses, on the ground that one guess seems more likely than another. Mere possibility or conjecture is not sufficient however bright the patina of hopeful interpretation and aspirational argument may be.
(b)   The Applicant’s actions during the meeting on 8 November 2018 were not, for the reasons outlined in paragraph 43 above, out of character. A/Prof Robertson’s characterisation does not accurately reflect the Applicant’s circumstances.
(c)   A/Prof Robertson’s theory (that is not addressed in his reports), is not consistent with the Applicant’s own version of history; on the Applicant’s own case, his condition wasn’t ‘sub-clinical’, according to the claim for compensation the Applicant first noticed his symptoms/injury on
26 September 2010 and was seeking treatment for it, from AFP psychologists and Mr Langley from 2010 onwards.
(d)   A/Prof Robertson’s heavy reliance on the experience of first responder’s generally is of such a general nature that it is completely unhelpful. His contention is essentially that all first responder’s, due solely to the fact that they are first responder’s, have underlying psychological issues even if they don’t know it and their individual circumstances are of little relevance.
[Footnotes omitted]
The Respondent contended that the weight of the evidence supports Dr Kar’s view and ought to lead the Tribunal to prefer his opinion. As such it would follow from such a finding that there is no ‘disease’ or ‘injury’ for the purposes of section 5A of the SRC Act and, consequently liability must be refused under section 14 of the SRC Act.[85]
[85] Respondent’s Outline of Submissions, dated 25 June 2021, pages 17-18, paragraph 57.
CONSIDERATION
There is no denying that the Applicant over his long policing career experienced a large number of events of which general members of the public would consider traumatic. The question in this matter for the Tribunal however, is whether or not as a result of his employment with the AFP the Applicant has sustained an injury for the purposes of section 5A of the SRC Act.
The Applicant’s case was not clearly articulated. The Tribunal understands the Applicant’s case to be that over the course of, and as a result of his employment with the AFP he aggravated an undiagnosed psychological ailment. The Applicant contended that a diagnosis does not have to be established, rather the ailment caused him to act outside the boundaries of normal human behaviour and as such, he has a disease for the purposes of section 5B of the SRC Act. The Applicant contended that the incident on 8 November 2018 was the tipping point rather than the cause of the ailment and as such reasonable administrative action considerations do not apply. Therefore, the Applicant contended that he suffered an injury for the purposes of section 5A of the SRC Act .
The Respondent on the other hand clearly set out its contention that the Applicant did not suffer a psychological ailment. The Respondent also set out alternative contentions should the Tribunal disagree with its primary contention of which the Tribunal notes, however, given the Tribunal’s findings set out below, are not necessary to reproduce or address here.
There is a large volume of material before the Tribunal which in addition to the T Documents and further reports and statements submitted by the parties, have been produced by way of summons. The evidence includes medical and performance records from the Department of Defence in relation to the Applicant’s Army Reserve service and from the Applicant’s employment with the AFP, medical records from his treating practitioners and employment details in relation to his employment with Serco Asia Pacific, Corporate Protection Australia Group and Securecorp Security.
These documents provide a picture of the Applicant’s work history and psychological testing and review that formed part of both initial and ongoing employment requirements. Dr Kar engaged with this material at length in his first supplementary report and the Applicant was cross examined in relation to a number of the medical (in particular psychological) reports and tests.
The Tribunal accepts that the Applicant experienced the events outlined in his statements however notes with caution that the history of the events are presented from the Applicant’s subjective view.
Having reviewed the Applicant’s statements closely and in conjunction with the balance of the evidence before the Tribunal, including that given by the Applicant himself at Hearing, the Tribunal considers that the Applicant’s credibility and as such the reliability of his evidence is questionable.
The Applicant gave evidence on cross-examination that the responses he gave on medical questionnaires and to medical professionals during his enlistment in the Army Reserve, in the lead up to him being accepted into the AFP and his deployment to, and during that deployment to the Solomon Islands were correct. No mention was made in those documents of the Applicant having suffered or him having been suffering from a psychological ailment or symptoms as a result of his service up to that point. If anything, those reports indicated that the Applicant presented as less anxious than others. This is markedly different to the picture the Applicant sought to paint in his statement of

14 February 2020.
The Applicant was cross-examined in relation to the responses he provided in a Subjective History – Online Questionnaire that he was required to complete as part of his application for his role at Serco. The Applicant agreed that he completed the questionnaire in

June 2020, being during these Tribunal proceedings and after reports had been received from Dr Kar and Associate Professor Robertson. The Applicant’s responses to questions in relation to his mental health, time off work, work related injuries all indicated that he was at that time and within the two years prior not suffering a psychological ailment or injury.
The Applicant under cross-examination said those answers were incorrect, however was reluctant to accept in most cases that those answers were knowingly incorrect and were a lie, he preferred to say that the responses were a mistake, error, or due to a different interpretation of the question. The fact that the Applicant clearly provided false responses to an important pre-employment health questionnaire, in relation to a position of which bared at least some similarities to some of the duties he undertook and situations he found himself in as a police officer is of concern.
The Applicant’s contentions in relation to the credibility matters raised from cross-examination and his responses to the Serco Questionnaire were scant and did little to put the Tribunal’s concerns at ease. The Applicant’s explanation went to the argument that everyone lies and makes bad decisions from time to time.
The Respondent contended that in such circumstances the Tribunal ought, only accept the Applicant’s evidence where it is corroborated by contemporaneous documentary evidence. The Respondent contended: [86]
That applies to the Applicant’s self-reporting, that is completely devoid of any documentary support, of symptoms dating back to 2010. The Applicant refers to visiting psychologists through the EAP program in 2010 and Mr Langley, counsellor, but there are simply no records to verify that fact. Indeed, Mr Langley wrote in his report of 26 November 2019 that the Applicant ‘expressed a desire that there would be no records kept of any meetings that we had, subsequently no records were ever kept.’
[86] Respondent’s Outline of Submissions, dated 25 June 2021, page 14, paragraph 47.
The Tribunal agrees. It is therefore appropriate to place greater weight on the objective evidence before the Tribunal in determining this matter than on the evidence of the Applicant in circumstances that his evidence is not corroborated by such objective evidence.
The medical evidence before the Tribunal is conflicting:
·Dr Nguyen diagnosed that as a result of his service in the QPS and AFP, the Applicant suffered from work related PTSD, other trauma and stress-related disorder and reactive anxiety/depressive episodes which at times have been complicated by his alcohol use.
·Dr Kar did not provide a diagnosis. Dr Kar opined that the Applicant did not have PTSD from his work in the QPS or AFP, but rather had pre-existing personality vulnerabilities which had been aggravated by his harmful alcohol which manifested in his behaviour, moods, anger, interpersonal difficulties at work and thoughts of self-harm. Dr Kar’s evidence was that based on his examination of the Applicant and the objective supporting material that he had not seen evidence of an anxiety disorder or any other psychiatric condition caused by the Applicant’s work.
·Associate Professor Robertson agreed that there was no evidence of current PTSD, however diagnosed that the Applicant suffered from a generalised anxiety disorder, previous alcohol use disorder and underlying narcissistic personality traits. Associate Professor Robertson’s evidence was that the Applicant’s generalised anxiety disorder was the result of the Applicant’s cumulative exposure to traumatic stress during his employment with the QPS and AFP.
The Applicant departed from his previous claim that he had an established history of PTSD and contended that should the Tribunal consider it necessary to put a label on his ailment that the Tribunal should prefer the diagnosis of Associate Professor Robertson.
The Respondent contended that the Tribunal should prefer the evidence of Dr Kar over that of Associate Professor Robertson on the basis that Associate Professor Robertson did not have access to all of the relevant material and offered general explanations to issues raised as a result of cross-examination of the Applicant or his failure to disclosure certain information during the assessment.
In considering the totality of Associate Professor Robertson’s evidence the Tribunal found the focus on the generality of psychological ailments suffered by police officers and first responders and their general response to the associated symptoms and the reporting thereof was unhelpful. Associate Professor Robertson agreed under cross-examination that there appeared to be a propensity for dishonesty from the Applicant in relation to the evidence presented to him and that in such instances objective evidence was important. Associate Professor Robertson however, did not point to any objective evidence, nor was he provided with that evidence when being briefed by the Applicant, he relied primarily on the self-reporting of the Applicant and was convinced that the Applicant when he was examined presented with symptoms of generalised anxiety disorder.
The Applicant drew the Tribunal’s attention to the manner in which Dr Kar gave evidence at Hearing and contended that the Tribunal should prefer the evidence of Associate Professor Robertson. The Applicant in closing submissions relied upon a concession he perceived was made by Dr Kar on cross-examination when excerpts from Associate Professor Robertson’s report and the Applicant’s statement were put to him in relation to the Applicant’s time in Canberra and he agreed that if the Applicant genuinely had those symptoms, then he was acting outside the boundaries of normal human behaviour.
The Tribunal rejects this contention for a number of reasons. The Tribunal does not consider that Dr Kar made any concession which assisted the Applicant’s case.
While the Tribunal acknowledges that Dr Kar’s answers to questions during the Hearing and to some extent in his reports were less than succinct, the Tribunal considers that

Dr Kar had access to the totality of the evidence before the Tribunal and had engaged with that evidence in a comprehensive manner. The Tribunal notes that Dr Kar placed importance on the objective evidence available to support the self-reporting of the Applicant, whereas although Associate Professor Robertson acknowledged such action was reasonable, failed to apply the objective evidence when considering his diagnosis and opinion in relation to the Applicant.
Dr Kar placed such importance on objective evidence in the Applicant’s case noting that the Applicant’s reporting of symptoms was made well after many of the times at which he now says such symptoms were experienced and instead were reported at a time where he perceived that his work was being questioned, in circumstances where he considered himself to be a good worker.
In considering the evidence before it as a whole, and based on the reasons set out in the proceeding paragraphs, the Tribunal prefers and accepts the opinion and evidence of Dr Kar.
The Tribunal notes that the evidence Dr Kar gave, was that the history provided did not sound like a person who was well and that if the statement was accepted, he agreed that the Applicant’s health was outside the boundaries of normal human behaviour, if he was having all of the symptoms being described.
Dr Kar gave further evidence that when he assessed the Applicant in December 2018 and also looked at the file when he prepared his first supplementary report, there was no evidence in the file that the Applicant was an anxious, fearful, avoidant or traumatised person. Dr Kar commented that the Applicant was saying those things however, it was not consistent with the objective history. The crux of Dr Kar’s evidence was that, when looking at everything it appears that the Applicant brought up the issues in a situation where he suddenly found himself about to get a negative comment on his PDA. Dr Kar’s evidence was that the Applicant’s behavioural and anger responses were demonstrative of the Applicant’s underlying personality vulnerabilities rather than a psychological disorder especially in the circumstance where the Applicant’s work performance was good and there was no objective evidence of worry or anxiety.
The Tribunal notes that in considering the principle derived from the decision of

Drummond J in Mooi the question becomes whether the Applicant, having regard to his personal circumstances, has a condition outside the boundaries of normal mental functioning and behaviour.
When looking at the Applicant’s personal circumstances and usual boundaries of his normal mental functioning and behaviour the Tribunal notes that the evidence before it in relation to the Applicant’s Army Reserve Service, QPS and AFP Service show the Applicant’s pattern of work behaviour. Overall the Applicant’s quality of work was good, however issues with his aggressive interpersonal skills, attitudes and behaviours were consistently raised. It was clear from the Applicant’s statement dated 14 February 2020, that when he perceived that his supervisor or colleagues had an issue with him or he was unhappy with the management style he referred to his mood, drinking habits and sleep as having been affected and so he found a new position. This evidence together with that outlined in the Respondent’s contentions produced above cement the opinion of Dr Kar and contention of the Respondent that while the Applicant’s behaviour may be abnormal when measured against others, it was not outside the boundaries of his normal mental functioning and behaviour given that his personality vulnerabilities are an enduring part of his constitutional personality.
On the balance of probabilities, based on the evidence before it, the Tribunal is not satisfied that the Applicant suffered a psychological ailment or any ailment or injury as a result of his employment with AFP. As such the Tribunal finds that the Applicant does not have an injury for the purposes of section 5A of the SRC Act.
DECISION
Based on the evidence before the Tribunal, and for the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 105
(one-hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

....................[SGD]...........................
Associate
Dated: 14 January 2022

Date of Hearing:
24 and 25 June 2021

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Solicitor for the Respondent:

Mr John Mrsic

Ms Laura Flanagan

Carroll & O’Dea Lawyers

Ms Kate Slack

Ms Matylda Gostylla

Sparke Helmore Lawyers

Exhibit 1, T Documents, T17, page 206, Response to information provided by the AFP dated

21 January 2019.

Exhibit 1, T Documents, T17, page 207, Response to information provided by the AFP dated

21 January 2019.

[2022] AATA 37

14 January 2022

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