Coulton v Comcare
[2001] FCA 1312
•14 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Coulton v Comcare [2001] FCA 1312
WORKERS COMPENSATION - Appeal from decision of the Administrative Appeals Tribunal - whether Administrative Appeals Tribunal had jurisdiction to entertain the claims for assessment of permanent impairment in the absence of a reviewable decision - whether the Administrative Appeals Tribunal was incorrect in not considering s 6A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) despite the absence of an evidential basis - whether the Administrative Appeals Tribunal dismissed the claim without the disclosure of sufficient reasons required by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) - whether the Administrative Appeals Tribunal decided each claim in isolation - whether the interposing of a witness denied the applicant procedural fairness.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 6ALees v Comcare (1999) 56 ALD 84 Cited
Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85 Cited
Australian Postal Commission v Hayes (1989) 23 FCR 320 Cited
Sims v O’Sullivan [1952] SASR 179 CitedBRUCE ROBIN COULTON v COMCARE
Q 146 OF 2000COOPER J
BRISBANE
14 SEPTEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q146 OF 2000
On Appeal from the Administrative Appeals Tribunal constituted by
DW Muller, Senior Member, Brigadier IR Brumfield, CBE DSO RL, Member
and Doctor KP Kennedy, OBE, Member
BETWEEN:
BRUCE COULTON
APPLICANTAND:
COMCARE
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
14 SEPTEMBER 2001
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application including reserved costs to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q146 OF 2000
On Appeal from the Administrative Appeals Tribunal constituted by
DW Muller, Senior Member, Brigadier IR Brumfield, CBE DSO RL, Member
and Doctor KP Kennedy, OBE, Member
BETWEEN:
BRUCE COULTON
APPLICANTAND:
COMCARE
RESPONDENT
JUDGE:
COOPER J
DATE:
14 SEPTEMBER 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
The applicant is Bruce Robin Coulton. He served as a member of the Regular Army between 1971 and 1974 and later between 1987 and 1989. He was discharged from the Army on 15 May 1989. The applicant has also served at various times as a member of the Army Reserve.
On 8 September 1988 the applicant injured his back playing baseball as part of organised Army sport.
On 21 June 1993 the applicant claimed rehabilitation and compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SR & C Act”). The condition in respect of which the claim was made was an anxiety state which he claimed was attributable to his military service with the Regular Army. His claim was accompanied by a letter dated 21 June 1993 from Sampson & Associates, Solicitors, which included the following :
“Our client contends that his anxiety state had its genesis in his service as a Military Policeman and Artillery gun number. As a Military Policeman he was required to attend motor vehicle accidents, was involved in riot control at the conclusion of National Service, and participated in military field exercises that were long and intensive. Regarding his Artillery service: our client contends that he was involved in funeral duties for those personnel killed on active service in South Vietnam.
He further contends that the back injuries suffered during his service aggravated his anxiety state.”
This claim was rejected by Alan Phillips, a delegate of Comcare, on 22 March 1995. The determination of Mr Phillips stated :
“In pursuance of the provisions of the SAFETY, REHABILITATION AND COMPENSATION ACT 1988 I hereby determine:
The Department of Defence is not liable to pay compensation in respect of the claim of BRUCE ROBIN COULTON for Anxiety state.”
The applicant, on 18 April 1995, sought reconsideration of the determination.
On 13 May 1997 Paul Ontong, Assistant Director, Reconsideration and Appeals with the Military Compensation and Rehabilitation Service, wrote to the applicant’s solicitors setting out the decision made on a reconsideration of the decision of 22 March 1995. The letter included the following :
“RECONSIDERATION NO ADF: 97/198
I refer to your letter of 18 April 1995 requesting reconsideration of the decision of 22 March 1995 in respect of Mr Coulton [sic] claim for compensation for anxiety state.
DECISION
It is my decision to Affirm the determination dated 22 March 1995 which found that the Department of Defence is not liable to pay Bruce Robin Coulton compensation in respect of anxiety state.”
On 12 August 1999, the applicant applied to the Administrative Appeals Tribunal (“the AAT”) for review of Mr Ontong’s decision and sought an extension of time within which to seek the review. The application for review was allocated the file number 99/1334 by the AAT.
The applicant filed a second application for rehabilitation and compensation under the SR & C Act on 23 November 1993. This claim was made in respect of a medical condition known as irritable bowel syndrome. It was claimed that he first noticed the condition and sought medical treatment for it in 1988. He claimed that the condition was attributable to his military service with the Regular Army. The claim was disallowed by Maureen Irvine, a delegate of Comcare, on 27 June 1994. The applicant sought reconsideration of Ms Irvine’s determination on 23 September 1994. The decision was reconsidered by I McIver, a delegate of Comcare who wrote to the applicant’s solicitors on 21 September 1995 advising them of the outcome of the reconsideration. The letter stated :
“I am writing to you concerning Mr Coulton’s claim for compensation in respect of irritable bowel syndrome for which he first sought treatment in December, 1988. On 27 June 1994, a Delegate of Comcare determined that liability for compensation was not accepted. On 20 September, 1994, Mr Coulton requested that the Delegate’s determination be reconsidered. As a Delegate empowered to reconsider determinations in accordance with Section 62(4), having not made, nor been involved in the making of the determination in question, I have reconsidered that determination.
DECISION
I have decided to revoke the Delegate’s determination of 27 June, 1994, that liability for compensation in respect of irritable bowel syndrome is not accepted.
REASONS
I have examined all the evidence available to me and am satisfied that there is doubt about whether the medical specialist to whom Mr Coulton was referred was provided with all or any of Mr Coulton’s Service and other medical records. I am not satisfied that natural justice has been seen to be done, in that he was not given a full opportunity for his case to be presented. I have therefore revoked the determination denying liability. This does not mean that liability has been admitted. I have passed Mr Coulton’s file to the Liability Team for his claim to [sic] investigated again, with all the medical evidence being presented to a specialist medical referee. I have taken this step so that, should Mr Coulton be dissatisfied with the subsequent determination, he may then seek a reconsideration of that determination without having to resort to an appeal to the AAT.”
On 7 May 1996 Gillian Tate, a delegate of Comcare, determined that liability was accepted in respect of irritable bowel syndrome as a result of the applicant’s Regular Army service and determined that the date of the injury was 1 December 1988, being “the date that you first sought treatment for this condition”. Ms Tate’s reasons noted a query raised by the applicant as to the calculation of the level of impairment and contained the following :
“I will ask that your claim is given priority in determining the extent of whole person impairment payable in respect of this condition. You have spoken to me concerning the level of impairment, in particular whether or not you must have all 5 symptoms outlined in the 55-75% impairment to qualify for that level of impairment. It is my opinion that the guide is quite specific, and as you will have seen, where not all symptoms are required in a category, the guide specifically states this, eg, in Table 8.1, to qualify for 25% whole person impairment, the guide states ‘... AND ONE of the following ...’. Similarly, to qualify for 40%, the guide states ‘ ...with TWO of the following ...’. However, when all symptoms are required, such as in the 50% category, the guide states ‘ ... with ALL of the following ...’.
As the 55-75% range states ‘objective signs of disease present and a combination of the following ...’, it would suggest that you require any combination of the five symptoms to fall within that range of impairment.
However, in an attempt to minimise any further delays, I will clarify this aspect with our Canberra office, and forward your claim to the Permanent Impairment delegate, who will then make a decision regarding your level of impairment.”
On 24 May 1996, the applicant sent material to the Defence Department in support of a further claim for a permanent impairment payment. That material included an Australian Army Patient Referral and Report dated 21 December 1988. As a consequence of receiving that report, Ms Tate, under s 62 of the S R & C Act, referred, on 30 May 1996, her determination of 7 May 1996 to I McIver, a delegate of Comcare, for reconsideration.
The decision on reconsideration was conveyed to the applicant by letter dated 30 May 1996, which, so far as is presently relevant, stated :
“I am writing to you concerning your claim for compensation in respect of irritable bowel syndrome as a result of a stressful event which occurred in October, 1988. On 7 May, 1996, a Delegate determined that liability was accepted in respect of irritable bowel syndrome, the date of injury being deemed to be 1 December, 1988, the date on which you first sought treatment. On 24 May, you sent to this Department a full set of copies of your medical documents in support of your further claim for a permanent impairment payment in respect of irritable bowel syndrome.
Examination of these documents has revealed that the delegate’s decision of 7 May, 1996, may have been incorrect. I have received a request under Section 62(1)(b) of the Act from the determining authority to reconsider that decision.
As a Delegate empowered to reconsider determinations in accordance with Section 62, having not made, nor been involved in the making of the determination in question, I have reconsidered that determination.
DECISION
I have decided to revoke the Delegate’s determination of 7 May, 1996, and have decided that the Commonwealth is not liable for your irritable bowel syndrome, in that it pre-dated the stressful event of 8 October, and thus was not caused by it.
REASONS
I have had regard to the ‘Patient Referral and Report’ dated 21 December, 1988, a copy of which is attached hereto.
The ‘Clinical notes’ include the following statement: ‘4/12 Hx abdo discomfort and loose bowel motions x4/day assoc w halitosis and gurgling of abdo’, which means that the doctor noted that for FOUR MONTHS you had been suffering from abdominal discomfort and loose bowel motions, etc.
The stressful incident at Darwin is, by a signed and witnessed ‘Record of Evidence’ provided in copy form by yourself, clearly identified as having occurred on 8 October, 1988.
It is therefore clear that you had been suffering from the symptoms of irritable bowel syndrome for at least a month before the incident. It is thus apparent that the incident of 8 October, 1988, could not have caused it; it was pre-existent. This therefore I believe invalidates Dr Dorrington’s opinion in attributing the cause of your condition to your employment on the basis of it having first arisen several days after the events in Darwin.
I thus have no option but to revoke the Delegate’s determination on 7 May, 1996.”
The applicant applied to the AAT on 5 June 1996 for review of the decision dated 30 May 1996 revoking the determination made on 7 May 1996. The application for review stated as the reason for review :
“It is more probable than not that my condition of irritable bowel syndrome occurred as a result of a stressful event on 8 October 1988 more particularly that the date of injury is deemed to be 12 December 1988 being the date on which I first sought medical treatment.”
This application was originally numbered 96/432. However the file number was later changed to 99/1333. The two applications, 99/1333 and 99/1334 came on for hearing before the AAT on 29 May 2000.
The applicant sought that the AAT determine the liability of the Defence Department to pay compensation for each medical condition on the basis that the condition was attributable to the applicant’s service in the Regular Army. He also sought that the AAT determine his entitlement to a further permanent impairment payment and in that regard to assess the degree of permanent impairment of the applicant caused by each of the medical conditions he complained of.
The respondent objected to the AAT making any determination in respect of permanent impairment because there was no reviewable decision before the AAT which dealt with that issue. In consequence the respondent submitted that the AAT had no jurisdiction to entertain any application concerning permanent impairment or payment therefor, and relied on the decision of a Full Court of this Court in Lees v Comcare (1999) 56 ALD 84 in support of its submission.
After argument from both parties and with the benefit of a short adjournment to consider the matter, the AAT made the following decision :
“MR MULLER: It’s our decision that we will hear the matter of liability only and that if we find in the applicant’s favour so far as liability on the two conditions is concerned, we will remit the matter for assessment. ...”
On 3 November 2000 the AAT affirmed the decisions under review.
On 17 November 2000 the applicant applied to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) by way of appeal from the decision in each matter by the AAT.
GROUNDS OF APPEAL
The applicant contends that :
(1)the AAT failed to give reasons as required by s 43(1) of the AAT Act as to :
(a)why it determined not to entertain the applicant’s claim to have the issue of permanent impairment assessed by the AAT in respect of each of the medical conditions for which a liability to pay compensation was claimed;
(b)why the applicant was not entitled to a finding of liability to pay compensation for his anxiety state by the operation of s 6A of the S R & C Act;
(2)the AAT failed to give adequate reasons as to why stressful events which occurred during the period of the applicant’s Army service did not make a material contribution to the development of his psychiatric disorder;
(3)the AAT failed to treat each application separately;
(4)the AAT denied procedural fairness to the applicant by allowing a witness to be interposed during the evidence of the applicant and over objection by his counsel, where the purpose of the evidence was to discredit the applicant.
GROUND 1
Section 43 of the AAT Act, so far as is presently relevant, provides :
“43(1)For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and :
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
(2)Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
(2A)Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to furnish to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, furnish to that party such a statement.”
The decision referred to in s 43(2) of the AAT Act is the decision affirming, varying or setting aside the decision under review: s 43(1)(a), (b) and (c).
There were but two reviewable decisions before the AAT. Each was a reconsideration decision. In each case, the issue in the decision under reconsideration was whether the Defence Department was liable to pay compensation on the basis that the applicant’s medical condition was attributable to his military service with the Regular Army. There was no decision under review which related to a further claim for a permanent impairment payment or to an assessment made as to the degree of permanent impairment consequent upon the medical conditions for which the applicant claimed gave rise to a primary liability to pay. This appears from the letter of Ms Tate to the applicant dated 7 May 1996 in respect of the claim for irritable bowel syndrome.
The question determined by the AAT on 29 May 2000 was whether the AAT had jurisdiction to entertain the claims for assessment of permanent impairment where there was no reviewable decision in respect of that matter before the AAT, and what was the consequence of a favourable decision for the applicant if either or both of the reviewable decisions was or were set aside. So much is clear from a reading of the arguments put by both sides to the AAT when the issue arose. The decision of the AAT as set out above is not a decision falling within s 43(1)(a) of the AAT Act for which reasons are required. In any event, in the context of the arguments put to the AAT on the issue, it is clear that the AAT accepted the arguments put by the respondent that it had no jurisdiction to entertain the additional claims in the absence of a reviewable decision concerning them and that the only course open, in the event of success by the applicant on each of the reviews, was remitter of the matters for assessment of any permanent impairment in the ordinary way.
There is no substance in Ground 1(a).
Section 6A of the SR & C Act provides :
“6A(1) This section applies to the following employees :
(a)members of the Defence Force;
(b)members of the Air Training Corps established under section 8 of the Air Force Act 1923;
(c)members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;
(d)members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;
(e)persons declared by the Minister under subsection 5 (6A).
(2)If, at any time, whether before, on , or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person’s employment, whether or not the person has remained an employee to whom this section applies.
(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.”
The applicant’s counsel submitted to the AAT that :
“... So, even if you make those findings about that incident, which are adverse to the applicant, then, it simply doesn’t follow - and can’t follow, in our submission, that that means the whole claim falls away. And I go back to the back incident. I again remind the Tribunal of the operation of 6 and 6A of the Act - something which I note has not been addressed. It doesn’t matter what findings you make adverse to the applicant about his credit for this section to operate. This section provides a form of strict liability extending the operation of section 6, which applies to ordinary Commonwealth employees, to people who are members of the defence force, and all that needs to be shown is that :
If at any time, whether before or after 1 December 1988, a member of the defence force -
And the applicant was -
has received, or receives medical treatment paid for by the Commonwealth -
Take the back. There is abundant evidence before you that he’s had a lot of treatment for his back since September 1988, all of which has been paid for by the Commonwealth.
And, as an unintended consequence of that treatment, the person suffered or suffers an injury, the injury to the employee is taken to have arisen out of, or in the course of the person’s employment.
Now, as I say, he suffered a back injury. He’s had a lot of treatment over the years, between ’88 and ’95, and continuing since then, in relation to the back. That treatment has all been paid for by the Commonwealth, and there is a finding by a respected independent psychiatrist, who, remember, was seeing the applicant at the request of the department in 1995, who comes to the opinion that anxiety about his back condition is one of the factors that has led to the development of his anxiety disorder. ...
.....
So in our submission, the Tribunal is left in a position where, even if you minded to make findings adverse to the applicant as to what actually happened in Darwin harbour, left in the position where, because of his back injury and the - there’s two aspects to this. Because of his back injury, and the continuation of that, he has developed a degree of stress and anxiety which has contributed, in Dr Jensen’s opinion, to an anxiety disorder.
And the operation of 6(a), which in my submission fits perfectly the facts of this case, an unintended consequence of the treatment for the back has been stress and anxiety, therefore it follows, as a matter of law in our submission, the applicant must succeed. ...”
The evidence relating to any contribution the applicant’s back condition made to his anxiety state was contained in the report of Dr Jensen, a consultant psychiatrist dated 27 February 1995 wherein he expressed the opinion :
“I believe his anxiety about his back injury has certainly contributed to his anxiety condition.”
Dr Jensen was questioned on this part of his report in the evidence he gave to the AAT. He said :
“Okay. And when you saw Mr Coulton you felt the anxiety about his back was contributing to his anxiety condition?---Well, not specifically. I would have made it anxiety secondary to a medical disorder. He seemed to be concerned about his back, about his health, about his case, about everything in his life, so it was a very general anxiety and that list that you have, and I have here, practically everything that happened to him in that list he reacts by saying, ‘Very shocked, felt helpless and shocked, thought I was going to be decapitated.’ This is an excessive reaction for a normal person and, again, fitted in with somebody who suffered an anxiety disorder.
Of course that depends on whether or not what he says about his reaction is accurate, doesn’t it?--- Of course, of course. I’m assuming here that he’s told me the truth.”
The statement from Dr Jensen’s report was also put to Dr Knox, another consultant psychiatrist. He said :
“Doctor, it’s a fact in this case that on 8 September 1988, Mr Coulton suffered a back injury in the course of his military service?---Sorry, is that for - is that the same - I’m just looking at - sorry, that’s September. That’s - that’s ahead of the October events. Okay, yes. Go ahead, please.
Yes. For which he’s received treatment including hospitalisation over the years. It’s a condition which fluctuates. At [sic] time he used to be able to walk apparently normally. At other times he needs a walking stick to get about and sometimes he can hardly walk at all. Dr Jensen, a psychiatrist who saw Mr Coulton in February of 1995, formed the opinion, and I’ll read it to you:
I believe his anxiety about his back injury has certainly contributed to his anxiety condition.
Do you agree with that?---Absolutely. I mean, I - not that I made much of that myself in how I looked at all this, but thinking about it now, it seems to me that probably if he were having ongoing back pain at that time and when he didn’t have his usual fitness to have tried to cope with that policeman - sorry, that - as a service policeman, to cope with that drunken serviceman, that he would have felt himself even more vulnerable in his work on account of his back injury which would heighten the psychological significance of his - of his fears, that if he were to fall in the water, if he were to have to grapple with this man with a bad back, that it would be - you know, he would be all the more likely to come to some bad result since he wasn’t as physically capable in himself and I think is [sic] confidence in himself would have been undermined by that, predisposing him to the - to his own reading of how traumatic that Darwin Harbour incident was.
Right. In February 1995, Dr Jensen diagnosed an anxiety disorder. Can you just explain to us firstly what an anxiety disorder is?---It’s - I think even though he hasn’t given it the full name, I think he’s referring to generalised anxiety disorder, which is one of the conditions in DSM4. Anxiety fundamentally is a condition of worry that a person finds themselves tense, nervous, frightened, worry - sometimes it can be worry about things in the external environment because the person is overloaded but often it’s seen, to use the old terminology, as a kind of neurotic response, that people are insecure, people don’t feel confident to kind of deal with a lot of everyday matters in relationships or work. Fundamentally anxiety - I mean, we all have anxiety of different sorts. Usually it’s not that pathological, but when someone gets a generalised anxiety disorder, they will be - they can’t put worry out of their mind, the worry is excessive, they will be tense, they will be irritable, they won’t sleep. In fact, you know, many of the symptoms are the same symptoms as appear with PTSD. So, you know, it’s possible sometimes in looking at PTSD to - and commonly people do misdiagnose it, but you certainly can make a strong case for diagnosing generalised anxiety disorder out of a sufferer of PTSD, and, in fact, if they’ve got both, well, then, normally you’ll say they’ve got PTSD and the anxiety disorder is subsumed within the wider diagnostic criteria of the PTSD.
Now, Doctor, I just want to run through a couple of scenarios with you. Mr - - -
MR MULLER: Well, just before you do, I think that the Doctor may be under a misapprehension about whether he was in the military police or not during the crocodile incident. As I understand it, he was not in the military police during his second stint in the Army.
MR PILKINTON: No, that’s correct. Yes.
MR MULLER: So the - - -?---Okay, yes. Well, I was misinformed about that or at least - I mean, I think I assumed from the fact that he was on guard duty or had some patrol duties that he was perhaps still a policeman at that time.
No, he - - -?---I did think that, but you’re telling me that - that’s - - -
He came back into the Army and he was not accepted into the military police second time around. He was put in the transport area and he had been on this - performing this tattoo duty travelling around Australia at the time of the Darwin incident, and I thought he said something to the effect that because of his age, he was shunted off into the transport area and his chances of promotion were pretty slim. I thought he said something along those lines.
MR BICKFORD: And there was also the conviction for stealing the sleepers - prevented him from going back into the police.
MR MULLER: He apparently stole some sleepers and did some - - -?---Yes, I had read about that in one of - - -
- - - did some other minor things and that prevented him from every [sic] being in the military police again?---Okay. But I - yes, but that event itself, I think, I mean, as - as I think I’m aware that often people in various other roles do get sentry duty. They do get other duties where they’re, you know, having to carry out some sort of policing type work, yes, but I - thank you for correcting me with that.”
Dr Reddan, another psychiatrist, also gave evidence as to the contribution of the back injury to the claimed anxiety state. She said :
“Did he mention his back to you as being a problem?---Yes, he did. He said that - he outlined quite a lot of history about the back condition and he said that he had treatment, etcetera and been on various medications and physiotherapy and I think had been to Belmont, etcetera. But he said that over time his back condition had improved and that he learnt to live with it and had accommodated it. He did certain things that would help or avoided things that exacerbated. And he didn’t consider that on its own, it was a markedly disabling condition, but it certainly had troubled him at various times.
Did he suggest that his back pain was causing him any anxiety?---Oh not specifically. It caused him trouble in the sense that at times he said it created sort of a negative feeling state. But he related his problems primarily to the incident in Darwin in October 1988.
When you saw him, did you consider that he was suffering from any psychiatric condition that would incapacitate him for work?---Oh, I think having - his personality difficulties would certainly cause him difficulty in maintaining employment because of his sort of poor self esteem, lack of self confidence, his rigidity and his previous history of patchy employment. I thought it would cause him difficulty, but under the right conditions and in the right sort of job, I thought that he probably would be able to work.
The personality disorder, does that have any connection at all to Army service?---Not in my opinion, no. Personality is largely made up of a sort of complicated interaction between your in-built temperament or constitution and your early life experiences, and late on, some experiences can have some role in it, but it’s largely formed during childhood adolescence and early adult life.”
And under cross-examination, Dr Reddan said :
“MR PILKINTON: Doctor, would you accept that pain and anxiety about a back condition can contribute or could contribute to the development of an anxiety disorder?---Oh yes, it could.
And that, of course, is Dr Jensen’s opinion as you know?---Yes, it certainly could. I think it’s problematic to make a diagnosis of an anxiety disorder. The major disagreement I have with Dr Jensen’s opinion is that, a little like I suppose many of us, Dr Jensen didn’t get the history of the childhood which I think may have influenced his opinion. That’s not a criticism of Dr Jensen, of course. The other question I have about his report is that Dr Jensen does mention and says, I think, on one of the pages that he’s got alcohol dependence, and generally speaking, it’s really very difficult to make a diagnosis of an anxiety or mood disorder when someone is drinking a fair bit, and some people would say you can make that diagnosis, but some purists would say you can’t, that you really have got to have the person dried out for quite a lengthy period of time before you can really make such a comment because alcohol use really drives mood disorder and anxiety. So there’s two schools of thought on that issue.”
The AAT made the following findings in respect of the claim for anxiety state :
“14.In relation to the claim for ‘anxiety state’, the applicant was examined by Dr Jensen, psychiatrist, on 5 January and 1 February, 1995. Dr Jensen reported that in his opinion the applicant suffered from an ‘anxiety disorder’ which could in part be constitutional and partly due to his back condition. Dr Jensen did not believe that the applicant’s anxiety disorder was of sufficient severity to prevent him from working.
.....
21.The applicant was examined by a consultant psychiatrist, Dr Knox, on 15 September 1999. The report of Dr Knox, dated 15 September 1999, contains the following observations (among other things) :
‘Due to financial difficulties Mr Coulton rejoined the army in 1987. He worked successfully until the stress of the 1988 incident described in his statement. During the efforts to rescue the intoxicated, suicidal soldier Mr Coulton faced the risk of death himself, when he and the man were struggling in the water in the vicinity of a large crocodile, and earlier in the piece Mr Coulton had felt very concerned for the wellbeing of two other men who had gone to the soldier’s assistance in the vicinity of crocodiles. At that time crocodiles were very prevalent in the Darwin harbour.
Characteristic of Posttraumatic Stress Disorder, Mr Coulton’s behaviour swings from extreme avoidance to highly agitated arousal.
Mr Coulton’s physical and psychological health problems are chiefly the result of the very stressful experiences he underwent while serving in the Australian army. There had been other stresses in his life but these do not have the magnitude of the experiences encountered in the course of his army service; these events involving frequent experiences of injury and death, and serious risk to himself. The experience in October of 1988 clearly finally overloaded Mr Coulton’s capacity to cope. He then fell into a pattern of disturbed physical health on account of his irritable bowel syndrome and injured back. Psychiatric symptoms followed and became increasingly severe and disabling.’
22.Dr Knox also gave oral evidence to the Tribunal. When it was pointed out to him that the applicant’s account to him of the crocodile incident was probably not accurate, Dr Knox said that the applicant’s post traumatic stress disorder could have been brought on by his being depressed due to his back problems. Dr Knox offered the theory that the applicant had lost his sense of good self-image by being prevented by his back problems from continuing as a Military Policeman.
23.It is clear that the applicant and his legal advisers have now focussed on the crocodile incident in Darwin Harbour as the cause for his anxiety disorder, or post traumatic stress disorder, and his irritable bowel syndrome. There is also the late theory put forward by Dr Knox that the back injury could be a cause.
.....
30.The Tribunal rejects all of the diagnoses of the psychiatrists who have based their diagnoses on accepting that the applicant’s life was placed in peril during his valiant attempt to save a suicidal soldier by diving into crocodile infested waters. The Tribunal also rejects the conclusions drawn by Dr Knox to the effect that the applicant had post traumatic stress disorder as a result of his loss of self-esteem because he was unable to continue as a Military Policeman due to his back injury. The applicant was rejected as a candidate for the Military Police in his second term with the Army because of his civilian conviction for dishonesty.
31.The Tribunal accepts the diagnosis of Dr Reddan that the applicant suffers from a personality disorder which has nothing to do with his service in the Army.”
None of the evidence relied upon by the applicant from Dr Jensen or Dr Knox was to the effect that any medical treatment which the applicant received for his back paid for by the Commonwealth was causative of an additional injury (as defined). There is no evidence that because of the medical treatment the applicant received in respect of his back he suffered an anxiety disorder as an unintended consequence. No evidential basis was established to properly put an argument that s 6A of the SR & C Act relevantly applied to the applicant’s claim.
The evidential basis which counsel attempted to put to the Tribunal and to this Court was that the applicant’s back did not improve and it caused him anxiety. The evidence of the applicant which counsel for the applicant referred the Court to as satisfying s 6A of the SR & C Act, was the following evidence of the applicant to the AAT :
“By the time you saw Dr Jensen - can I just ask you, firstly, remember you saw him in February 1995?---Yes.
How was your back at that time?---My back?
Your back?---Specifically at that day I can’t recall; however, my back as of back then and including up until now is good one day, next month it’s not. It comes and goes.
Did your back condition worry you?---It’s always worried me since I’ve had it - greatly so.
All right. How does it interfere with you in terms of your physical ability to do things?---Well, greatly. It’s - it gives me great restrictions.
Right. But can you tell the Tribunal what they are?---Specifically?
Mm?---Socially or everything?
Well - - -?---Examples of what - - -
Before you injured your back - - -?---Yes.
- - - were you fit and healthy?---Very much so, yes, except for minor problems with my knees.
And were you able to participate in sporting activities and so on?---Yes.
Gardening?---Yes.
Labouring around your house, that sort of thing?---Yes. I excelled in athletics in the Army and everything. I was quite fit.
Okay. After you injured your back, which was in September 1988, did you find things were different?---Totally physically.
Well, what things couldn’t you do that you used to be able to do?---Well, immediately everything. I couldn’t even go to the toilet properly because of my - the problems with my nerves, whatever was causing the - you know, your back, however it’s connected. And physically I couldn’t lift anything. I couldn’t drive. I had problems trying to clutch and brake because of the movement of my feet. I couldn’t play sport. I was placed on something - 2 or 3 light duties, sedentary duties, as a result of my back.
And did those restrictions cause you to have any worry?---To a certain degree, yes. Both working-wise, it made it difficult because of the job I was doing in the Tattoo. I was - I couldn’t perform certain tasks that were expected of me because of the physical restrictions, and that caused - well, I will use the word ‘anxiety’ even though I don’t like the word of it. It caused me anxiety with my fellow workers because I wasn’t able to do certain tasks that were after hours, that you normally would be expected to do on a roster. So I was the odd man out which made things difficult.
All right. And when you saw Dr Jensen in February 1995 you told him about your back problem and how it affected you?---Yes. Amongst other things.”
Counsel further referred the Court to an Exhibit 4 before the AAT, which was a long list of medical consultations between 28 September 1984 and 17 November 1999, which contained the name of the medical practitioner and the date, but gave no details of the consultation itself. He also referred the Court to the statement in Dr Jensen’s report which is set out above.
Finally, I set out the submissions put to this Court in relation to this issue because they reflect the way the case was put to the AAT and identify the factual findings sought by the applicant from the AAT to sustain the s 6A argument :
“Your Honour, turning now to what my learned friend says about ground 2 of the appeal - and ground 2 of the appeal is what I’ll call the Section 6A argument, which I deal with in my submissions - my learned friend seeks to, if you like, dismiss that argument advanced by the appellant on the basis that there was no evidence before the Tribunal that either of the conditions, the irritable bowel or the anxiety state condition, were causally related to the medical treatment, or was an unintended consequence of the medical treatment. And this appears at paragraph 6 of his document.
I’d like to say in answer to that, your Honour, that there was indeed evidence that was led about it, and that specifically appears at the Appeal Book, pages 465 and 466. But my learned friend then goes on to say, in paragraph 10 of his outline, that there was no requirement for the Tribunal to gives [sic] reasons as to why it didn’t consider that argument because it was something that was not worthy of consideration. And, in relation to that, given that the appellant presented his case, as is clear from the opening, that there were a number of different routes to the same conclusion, one of them leading to the same conclusion, one of them being the reliance upon Section 6A - given that evidence was led about that aspect of the case, and - - -
HIS HONOUR: Is the totality of the evidence to be found at the Appeal Book, 465, 466?
MR PILKINTON: No. There was also exhibit 4, which is the long list of medical consultations. That appears at 249 of the Appeal Book, and the basis of that was that this was a document that set out the long list of medical appointments, consultations, and the like, that the applicant had in relation to his back. And then Dr Jensen in his report - and that’s what appears at the other pages that I quoted - specifically opines that anxiety about his developing and worsening back condition contributed to the development of his anxiety state. That’s how we say Section 6A operates in this case.
But what the Tribunal did is simply not mention - apart from the catchwords, there is not one mention of section 6A anywhere in the Tribunal’s reasons, and we simply don’t know whether it considered it at all, if so, why it rejected it, whether it overlooked it. Nobody knows, your Honour, because there is just simply no reference whatever anywhere in the decision to that argument advanced on - on behalf of the appellant. And it’s not correct to say, as my learned friend does, that, well, look, it wasn’t worthy of consideration anyway, therefore, there was no need for the Tribunal to deal with it.
If it was the Tribunal’s view that there was no evidence to support the contention that section 6A applied in the circumstances of the case, then, of course, it would have been very easy for it to have said so. But it doesn’t. And the failure to do so, the failure to mention it at all, in my submission, leads to the inference that the contention was simply overlooked by the Tribunal in coming to its decision.”
The AAT was asked to find that the applicant had anxiety about his back and that anxiety contributed to his anxiety disorder. It was then contended that such a finding by the operation of s 6A of the SR & C Act made the Defence Department liable to pay compensation for the anxiety disorder. The difficulty for the applicant is that the AAT refused to make the finding and thereby made it unnecessary to further discuss s 6A of the SR & C Act.
Dr Reddan did not accept the opinion held by Dr Jensen that the applicant could properly be diagnosed as suffering from an anxiety disorder and gives her reasons for disagreeing with him. A concession that pain and anxiety about a back condition could contribute to the development of an anxiety disorder does not assist the applicant where Dr Reddan disagrees the applicant has an anxiety disorder, but rather has a personality disorder which is unrelated to his service with the Army.
In accepting Dr Reddan’s evidence and the diagnosis which she opines, the AAT has rejected the contrary opinion of Dr Jensen as to anxiety of the applicant about his back being a contributing factor to an anxiety disorder, even if it may be said that the diagnosis of Dr Jensen of an anxiety disorder could stand without the inclusion of the claimed incident on 8 October 1988 in Darwin as one of the circumstances contributing to it. The AAT has accepted Dr Reddan’s opinion that the diagnosis by Dr Jensen of anxiety disorder is problematic.
The evidence of Dr Knox of anxiety as to the applicant’s back condition being a contributing factor to the applicant suffering from Post Traumatic Stress Disorder was rejected by the AAT because it in part relied upon a version of the incident in Darwin which the AAT entirely rejected.
The reasoning of the AAT as to why it has rejected the submission that anxiety of the applicant as to his back condition contributed to his suffering an anxiety disorder is revealed in clear language and is capable of being understood on a fair reading of the reasons as a whole. The acceptance of the evidence of Dr Reddan and her diagnosis of the applicant’s present mental state and the cause of it, carries with it the rejection of contrary medical opinion. The rejection of the applicant’s version of the events in Darwin and their effect upon him, where medical practitioners had relied upon the existence of such facts to support their medical opinion, entitled the AAT, as it did, to reject those medical opinions: Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85 at 87 - 88. These findings were open to the AAT and are sufficient to sustain its refusal to find that the applicant’s anxiety about his back was not a contributing cause to the medical condition of anxiety disorder from which he claimed to be suffering.
Once the AAT rejected the applicant’s anxiety about his back condition as a contributing cause, on the basis counsel for the applicant put the case in respect of s 6A of the SR & C Act, no further consideration of the s 6A argument was required.
There is no substance in Ground 1(b).
GROUND 2
The applicant submits that the AAT did not take into account, in its deliberations, the incidents which occurred in his military service which he advised Dr Jensen of and which lie behind the statement of Dr Jensen in his report :
“Many aspects of Army Service caused him acute anxiety and his anxiety disorder would appear to have emerged during Army service.”
The applicant also submits that no sufficient reason is disclosed in the reasons of the AAT as to why stressful events which occurred during the applicant’s Army service did not make a material contribution to the development of his psychiatric disorder.
In my view it is incorrect to say that the AAT did not take into account matters other than the 1988 Darwin crocodile incident, which the applicant claimed had contributed to his anxiety disorder. The AAT in par 2 of its reasons, sets out the case advanced by the applicant before it. It stated :
“2.The applicant, Bruce Robin Coulton, claims that while he was serving in the Australian Army, he was involved in the rescue of a fellow serviceman who had jumped into Darwin Harbour. The applicant claims that during the rescue his head and shoulders went under water within two metres of two crocodiles. He claims that he experienced extreme fear for his own life at the time of the rescue and that as a result, he now suffers from an anxiety state and irritable bowel syndrome. He also claims that a back injury and other distressing incidents contributed to his disabilities.”
This statement is a fair and reasonable summary of the case advanced, having regard to the evidence called and the submissions made, as appears from a perusal of the proceedings before the AAT. The AAT records in par 15 that :
“15Dr Jensen also reported that at the time of his examination, the applicant supplied him with several pages of events that had worried him while he was in the Army. Included in the list of events was the Darwin crocodile incident. ...”
It is not correct, as was submitted on behalf of the applicant, that the AAT simply dismissed his claim with the comment :
“It is difficult to see how any of the applicant’s Army service has had anything to do with his claimed illness”.
That statement was to be read in the context of par 32 of the reasons where it appears and in the context of the reasons as a whole.
The applicant’s history, so far as is relevant, is found by the AAT and set out in par 3 of the AAT’s reasons. It records that his military service with the Regular Army was between 1971 and 1974 when he left the Army citing excessive workload and long hours as his reason for resigning. It then records his work history and other relevant circumstances, including his bankruptcy and loss of his home as a consequence, his conviction on a stealing offence, and the period of two years unemployment before re-enlistment in the Army in December 1987. The history then records that the applicant was assigned to an entertainment unit which toured Australia as the Army Tattoo.
The personal history records two incidents which occurred while the applicant served with the Army Tattoo. The first was on 8 September 1988 when the applicant injured his back playing baseball as part of organised Army sport. The second occurred in Darwin. As to that incident the AAT found :
“(xix)The applicant travelled to Darwin with the Tattoo group where they were due to perform in early October 1988. The Tattoo group were quartered aboard the HMAS Jervis Bay in Darwin Harbour.
(xx)While in Darwin, the applicant was not required to work and perform with the Tattoo, because of his bad back. He was given sentry duties on the ship.
(xxi)On the morning of 8 October, the applicant was on gangway duty, when a Private Woods, also a member of the Tattoo unit, returned to the ship drunk and distressed. The applicant heard Woods make suicidal comments, when Woods left the ship and headed along the wharf. The applicant arranged for two other soldiers to follow Woods, Private Wells and Private Dalgleish. Woods jumped into the water, then Wells and Dalgleish followed him in and swam after him but could not catch him. With the assistance of the water police who were nearby, Woods was eventually transported by the police launch back to the wharf and was lifted from the launch by Wells, Dalgleish and a policeman. The applicant, along with some other men, pulled Woods up onto the wharf.”
The AAT finds the circumstances of the making of the claim on 21 June 1993 for rehabilitation and compensation for anxiety state in Par 5, which stated :
“5.On 21 June 1993, the applicant made a claim for rehabilitation and compensation for ‘anxiety state’. His solicitor expanded on the details of the claim by including a letter which contained the following :
‘Our client contends that his anxiety state had its genesis in his service as Military Policeman and Artillery gun number. As a Military Policeman he was required to attend motor vehicle accidents, was involved in riot control at the conclusion of National Service, and participated in military field exercises that were long and intensive. Regarding his Artillery service: our client contends that he was involved in funeral duties for those personnel killed on active service in South Vietnam.
He further contends that he back injuries suffered during his service aggravated his anxiety state.’”
This paragraph is important in the reasoning of the AAT. It records that the aspects of his military service which were then advanced as causing his anxiety state are all limited to his first period of service and did not include the incident in Darwin. The only aspect of his second period of service with the Army which was claimed as contributing to his anxiety state related to his back injury.
The AAT then finds the circumstances relating to the claim for rehabilitation and compensation for “irritable bowel syndrome” made on 23 November 1993 in pars 6, 7 and 8 of its reasons. It stated :
“6.On 23 November 1993, the applicant made a claim for rehabilitation and compensation for ‘irritable bowel syndrome’. In answer to the question which asked, ‘What aspects of your employment do you think contributed to your illness or disease?’, the applicant replied, ‘heavy lifting’. He claimed that the injury occurred in 1988 while he was working at his usual work place. He could not point to any specific times, dates or incidents.
7.The applicant claims that around 12 December 1988 he started experiencing chronic diarrhoea, and later began ‘feeling lousy’.
8.In April 1994, the applicant’s solicitor wrote to the Department of Defence and enclosed a report from the gastroenterologist, Dr Robinson. Dr Robinson had found nothing of significance on examination but his opinion was :
‘These symptoms seem to be fairly typical of an irritable bowel syndrome and I am sure that is occurring on the basis of his stress and anxiety at least some [of] which is related to problems associated with his back and his subsequent discharge from regular work.’”
These paragraphs are important to the reasoning of the AAT. They record that the claim could not be attributed at the time it was made to any particular incident or aspect of the applicant’s service. It was opined by Dr Robinson that the condition was occurring on the basis of the applicant’s stress and anxiety which at its highest was in part related to problems associated with the back injury and “his subsequent discharge from regular work”. There was nothing in the claim as brought that the applicant’s first period of Army service, which ended in 1974, nor the incident in Darwin, had any relevant connection with a condition which it was claimed first manifested itself around 12 December 1988.
The AAT finds that the incident in Darwin was first mentioned in connection with a claim for rehabilitation and compensation by the applicant in a letter written on 31 October 1995 to the Compensation Section of the Defence Department. The letter is set out in par 11 of the AAT reasons, which stated :
“11.The claim for irritable bowel syndrome was re-opened in September 1995. On 31 October 1995, the applicant wrote to the Compensation Section and made the following claim :
‘Additional information for Claim No 94/CQR/40. Below is listed possible events that may have caused my irritable bowel syndrome.
1.Back injury September, 1988 (accepted by Defence Comp).
2. Stressful event - involved in rescuing a soldier, a Pte Woods from 1 Tpt Sqn Whilst on Army Tattoo Regiment in Darwin NT at 6 am in October, 1988 whilst performing sentry duty on HMAS Jervis Bay I had to rescue a suicidal soldier from crocodile infested waters in Darwin Harbour. This rescue of Pte Woods was very violent and dangerous both by placing myself at risk by drowning and being attacked by large salt water crocodiles what were only meters away from me.
3. Up to and including these events I did not have any problems with my bowels at all. However, after these events my bowel problems occurred and have progressively gotten worse.
4. Between December, 1988 until discharge from Army Service in May 1989 I was extensively given medical tests for fault finding the problem with my bowels.
I ask Department of Defence Compensation and Rehabilitation Section to consider the information provided above in my application for irritable bowel syndrome to be accepted as Defence caused.’
He wrote a longer letter on 8 November 1995, which made the same claim.”
It also finds in par 12 that the Defence Department accepted liability in respect of irritable bowel syndrome on the basis of a report from Dr Dorrington who thought from the information he was given that the irritable bowel syndrome had occurred in December 1988 and that the crocodile incident in Darwin occurred a few days earlier on 1 December 1988.
The AAT sets out in par 15 the version of the Darwin incident, which the applicant provided to Dr Jensen, which included a reference to salt water crocodiles only two to three metres away from where attempts were being made to pull Pte Woods from the water. It then finds that a different version of the incident was given to Dr Reddan, which it sets out in par 18, when she examined the applicant on 5 December 1996.
The AAT finds that the applicant was examined by Dr Knox on 15 September 1999 and in par 21 sets out part of his report which the AAT treated as relevant. The report said :
“Due to financial difficulties Mr Coulton rejoined the army in 1987. He worked successfully until the stress of the 1988 incident described in his statement. During the efforts to rescue the intoxicated, suicidal soldier Mr Coulton faced the risk of death himself, when he and the man were struggling in the water in the vicinity of a large crocodile, and earlier in the piece Mr Coulton had felt very concerned for the wellbeing of two other men who had gone to the soldier’s assistance in the vicinity of crocodiles. At that time crocodiles were very prevalent in Darwin harbour.
Characteristic of Posttraumatic Stress Disorder, Mr Coulton’s behaviour swings from extreme avoidance to highly agitated arousal.
Mr Coulton’s physical and psychological health problems are chiefly the result of the very stressful experiences he underwent while serving in the Australian army. There had been other stresses in his life but these do not have the magnitude of the experiences encountered in the course of his army service; these events involving frequent experiences of injury and death, and serious risk to himself. The experience in October of 1988 clearly finally overloaded Mr Coulton’s capacity to cope. He then fell into a pattern of disturbed physical health on account of his irritable bowel syndrome and injured back. Psychiatric symptoms followed and became increasingly severe and disabling.”
It was at this stage of its reasons, having recorded the relevant circumstances in the making and the developing of the claims by the applicant and his legal advisers, that the AAT made the statement in par 23 to which objection is taken by the applicant. The AAT said :
“23.It is clear that the applicant and his legal advisers have now focussed on the crocodile incident in Darwin Harbour as the cause for his anxiety disorder, or post traumatic stress disorder, and his irritable bowel syndrome. There is also the late theory put forward by Dr Knox that the back injury could be a cause.”
It was open on the material before the AAT which it identified in its reasons, to come to the view which it did and to express it. The incident in Darwin in October 1988 was first advanced on 31 October 1995 as a stressful event giving rise to the outset of irritable bowel syndrome. The same incident was first advanced as a significant contributing cause to an anxiety disorder on 1 February 1995, when it was referred to Dr Jensen by the applicant and later repeated in a different and more dangerous form to Dr Reddan on 5 December 1996, and Dr Knox on 15 September 1999. By the time that the claims came before the AAT for determination, it was the temporal connection between the incident in Darwin and the onset of diarrhoea which underpinned the claim that it was service in the Army which was causative of the irritable bowel syndrome condition. Further, the Darwin incident was one of a number of matters Dr Jensen relied upon to state :
“On all this history and his present symptoms the diagnosis of Generalised Anxiety Disorder (DSM IV) would be applicable.”
The incident was pivotal to the opinion expressed by Dr Knox of Post Traumatic Stress Disorder being what “clearly and finally overloaded Mr Coulton’s capacity to cope”.
When the AAT rejected any version of the applicant’s role in the incident on 8 October 1988 in Darwin, which placed his life in peril during his attempt to save a suicidal soldier by diving into crocodile infested waters, it left the opinions of Drs Jensen and Knox without a factual basis for an assumption, underlying their opinions. As I have said above, the AAT was on that basis entitled to reject the psychiatric evidence which relied on the assumption that the incident had occurred as reported by the applicant.
The AAT was left with the evidence of Dr Reddan, which it accepted.
It is at this stage in the AAT’s reasons that par 32 appears. It stated :
“32.It is difficult to see how any of the applicant’s Army service has had anything to do with his claimed illnesses. His first stint ended in 1974. He spent the next thirteen or so years in civilian occupations with three periods in the Army Reserve. His second stint lasted for not much more than twelve months during which he was involved in the Army Tattoo for most of it. Apart from hurting his back while playing baseball and the rescue of the drunken soldier, nothing much of note happened. He spent the following two years in the Army Reserve.”
The statement relates to both of the illnesses claimed. The import of the statement is that the aspects of his service which caused him anxiety occurred prior to his leaving the Regular Army in 1974. They occurred more than nineteen years before a claim was made that they were causative of a condition which had manifested itself more than fourteen years after his first period of service. The statement also makes the point that in the intervening thirteen years, he was engaged in civilian occupations in the circumstances recorded in par 3 of the AAT’s reasons. It also makes the point that the experiences were not such as to deter him from three periods in the Army Reserve during those thirteen odd years. The AAT then looked at the second period of service in the Regular Army and observed that it was not significantly longer than twelve months, that for the most part it involved duties with an entertainment unit and but for the back injury and the incident in Darwin, no other relevant circumstance occurred. Finally, it makes the observation that his experiences during his second period of service did not deter him from spending the following two years in the Army Reserve.
The AAT in par 32, because of the passage of time since 1974, the events of the intervening years, the applicant’s continued service with the Army Reserve, and the absence of any other relevant circumstances beyond the back injury and the Darwin incident, is not prepared to find the necessary link between the claimed illnesses and his two periods of service in the Regular Army.
The AAT was entitled to adopt the position which it did in par 32 of its reasons in relation to the claim for an anxiety disorder because Dr Reddan’s evidence, which the AAT accepted, was that the applicant was not suffering from anxiety disorder and the applicant’s personality disorder had nothing to do with his service in the Army.
The AAT provided sufficient reasons for the purposes of s 43 of the AAT Act as to why it found that the applicant’s service in the Regular Army did not make a material contribution to the development of his psychiatric disorder.
There is no substance in Ground 2.
GROUND 3
The two claims were heard together by the AAT. As set out above, under Ground 2 the AAT set out in its reasons the development of each of the claims from the time it was made until it was determined by the AAT. The reasons of the AAT reveal with sufficient clarity that ultimately both claims treated the applicant’s version about his involvement in the incident in Darwin on 8 October 1988 as a, if not the, significant incident in the applicant’s service in the Army, and, the incident necessary to make the causative connection between the service in the Army and the claimed medical condition. The summary of the AAT contained in par 2 of its reasons, which is set out above, fairly states the case as put to the AAT.
Once the version put forward by the applicant was rejected, the incident of 8 October 1988 as the cause of anxiety, engendered by his military duties, sufficient to cause the onset of irritable bowel syndrome, was not available. There was nothing else to sustain the claim in respect of irritable bowel syndrome, other than his general anxiety based on his previous military service and his back injury. There was no medical evidence that anxiety caused by service which ended in 1974 could be causative of the outset of irritable bowel syndrome in December 1988. As I have indicated above, the AAT rejected, as it was entitled to do, that the applicant suffered from a general anxiety disorder or post traumatic stress disorder or that anything in his military service, including his back injury, contributed to the mental condition from which he did suffer, namely personality disorder. When the claim for a general anxiety disorder or for post traumatic stress disorder was rejected, the only anxiety left as a possible cause of the irritable bowel syndrome was the anxiety associated with the personality disorder which was not service related.
In the way the claims were ultimately pressed, they became closely interrelated and the outcome of the general anxiety disorder or post traumatic stress disorder claim would impact significantly on the outcome of the claim for irritable bowel syndrome, both being based on high levels of anxiety sourced in service in the Army. However, the AAT did deal with each claim separately and its reasoning for rejecting each claim is apparent from its reasons.
There is no substance in Ground 3.
GROUND 4
This ground is based solely upon the witness Wells being interposed during the cross-examination of the applicant.
There is no suggestion that the applicant was unaware of the version of events Wells had given, or that Wells’ evidence was not put to the applicant during cross-examination and before Wells was called. It is not a question of ambush; it is put as a question of timing which disadvantaged the applicant procedurally because the AAT, after hearing Wells’ evidence, did not thereafter believe the applicant.
The circumstances in which the evidence of Wells was interposed and the objection taken, appear from the following passages in the transcript :
“MR BICKFORD: I hope [sic] will be available at that time. We’re endeavouring to reschedule Dr Knox who’s on this afternoon at 3.30 by phone. The reason for that is that we’ve got a witness here under subpoena arriving at 2.30 and he tells us it’s the only day he can - he has taken a day off to come here, and it’s the only day he can give his evidence.
MR MULLER: Who is that?
MR BICKFORD: Mr Wells.
MR MULLER: Whose witness is he?
MR BICKFORD: He’s my witness.
MR MULLER: He’s your witness. All right. He’s coming at 2.30 today, is he?
MR BICKFORD: Yes.
MR PILKINTON: Can I just indicate, though, Senior Member, if the applicant is still being cross-examined I will object to this witness being interposed in the middle of cross-examination.
MR MULLER: Who, Mr Wells?
MR PILKINTON: Yes.
MR MULLER: Well, we’ll cross that one when we come to it. All right, yes?
... ... ... ... ... ... ...MR MULLER: How long will you be with your cross-examination, Mr Bickford?
MR BICKFORD: I think it will probably be at least another hour.
MR MULLER: Another hour?
MR BICKFORD: There’s a number of topics I’ve yet to cover.
MR MULLER: Yes, all right.
MR BICKFORD: Mr Wells is here at the moment.
MR MULLER: Righto.
MR BICKFORD: And we were wanting to proceed with - - -
MR MULLER: You want to interpose him now?
MR BICKFORD: Yes.
MR MULLER: All right. And you object to that, Mr Pilkinton?
MR PILKINTON: I certainly do, Senior Member.
MR MULLER: Why?
MR PILKINTON: Because, with respect, it would work an unfairness and potential injustice on the applicant. It’s quite inappropriate to interrupt cross-examination, call a witness in the respondent’s case in circumstances where, presumably, Mr Wells might say something different from what the applicant has said whereby - - -
MR MULLER: Well, what does it matter whether he says it differently now or some - - -
MR PILKINTON: Well, yes it does, because once we hear his evidence, that gives my friend an opportunity to ask further questions based upon what Mr Wells might say of the applicant that he wouldn’t otherwise or might not otherwise ask.
MR MULLER: And would there be some terrible injustice caused by that?
MR PILKINTON: Quite possibly, Senior Member. It needs to be borne in mind also that Mr Coulton has been in the witness box for a day and a half now. Mrs Coulton who we want to call in the applicant’s case has been sitting outside for all of this time, and the proper course of proceedings, whether it be in this Tribunal or anywhere else, is that - save with some exceptions - the applicant finishes his case before the respondent starts. But certainly, it’s just simply, with respect, inappropriate and should not be allowed to interrupt cross-examine [sic] in order to call a witness on behalf of the respondent.
MR MULLER: Well, what is the alternative?
MR PILKINTON: Mr Wells can wait his turn. That’s the proper course.
MR MULLER: All right. No, I propose to let Mr Wells give his evidence, but I just want to ask you one thing before he does. After this rescue of Private Woods, when he was eventually brought up on to the wharf and handcuffed, did you talk to Private Wells and the other man, whatever his name was - the other - who was the other solider?
MR BICKFORD: Dalgleish. Dalgleish.
MR MULLER: Dalgleish. Did you talk to them?---Yes, conversations would have transpired in the normal course of that day or shortly afterwards.
What sort of things did you discuss with them?---I honestly can’t remember. It’s so long ago.
Well, did you - - -?---They were present when I made my handwritten statement, myself and the other person.
Okay?---And I had to ask their names because I didn’t know their names at that time.
Did you have any discussion with them about the crocodiles that you saw?---I may have. I cannot recall specifically. I can - well, I can only assume I would have mentioned it but it would have - it was such an involved thing, normal conversation would have arosen [sic] from that at that time.
Well, wouldn’t you have said something to the effect, ‘Gee, you blokes are lucky. There were two crocodiles only 2 metres away; wow, how dangerous is that? God, you guys are brave diving into crocodile infested waters’. Wouldn’t you have said something along those lines?---Well, that could be one of a hundred possibilities that could have been said.
Well, did you or didn’t you?---I specifically - I don’t recall ever saying that.
And if you didn’t, why didn’t you?---Oh I can’t offer any explanation for that.
You can’t remember anything along those lines?---Other than any normal conversation I’d have had at the time. Specifically I can’t remember.
All right?---I - I honestly can’t. It would only be purely guesswork.
All right. Well, you can sit in the back of the hearing room?---Yes.
And Mr Wells can come in.
THE WITNESS WITHDREW”.
Provided the procedure adopted by the AAT did not deny to the applicant procedural fairness, it is not for this Court to impose its opinion as to the desirability of the course adopted: Australian Postal Commission v Hayes (1989) 23 FCR 320 at 326.
The imposition of a witness is a matter of discretion for the person responsible for the conduct of the trial or hearing and will not be interfered with unless one party has been caused prejudice in the conduct of its claim or defence: Sims v O’Sullivan [1952] SASR 179 at 183.
Counsel for the applicant submitted that Wells was only called and interposed to destroy the credit of the applicant and that after hearing the evidence of Wells, the AAT rejected the applicant’s case and did not listen to the further evidence of the applicant or witnesses called on his behalf.
It is not correct to characterise the calling of Wells as solely to discredit the evidence of the applicant. Wells was a material witness as to what occurred in the incident involving Pte Woods in Darwin Harbour on 8 October 1988. He was one of the principal participants in the events which occurred. Irrespective of when Wells was called, the applicant would have had to deal with the evidence Wells gave and with the fact that the applicant had given different and inconsistent versions of the events at different times.
In my opinion, there was no prejudice to the applicant in the conduct of his case by interposing Wells as a witness. The applicant had been in the witness box for one and a half days. He had given his version of the incident in Darwin and had been cross-examined on it. It had been put to him that his version of the incident was a fabrication which he denied. Wells was cross-examined by Counsel on behalf of the applicant. The evidence of Wells, including his cross-examination, took thirty-two minutes. When it was finished the applicant resumed his evidence. At the conclusion of his cross-examination, the applicant was re-examined by his Counsel and again asserted that he was not fabricating his involvement in the incident of 8 October 1988.
The applicant contends that a comment made by the presiding member of the AAT demonstrates that the early reception of the audience of Wells was prejudicial to the applicant because the AAT thereafter closed its mind to the applicant’s case. At 3.51 pm on the same day as Wells gave evidence and after the applicant had resumed his evidence under cross-examination, the following occurred :
“MR MULLER: Some of this medical evidence that’s coming forward, some of it concerns me a bit I must say. For example, one of the witnesses lined up, I think, is Dr Knox; is that right?
MR BICKFORD: Yes.
MR MULLER: Now, I have got Dr Knox’s statement here dated 15 September 1999 and on the second page, second-last paragraph, it reads :
Due to financial difficulties, Mr Coulton rejoined the Army in 1987. He worked successfully until the stress of the 1988 incident described in his statement. During the efforts to rescue the intoxicated suicidal soldier ... (reads) ... which I see has been attributed to stress.
And so it goes on. Now, look, quite frankly that’s absolutely nonsense that paragraph. I just wonder what is the value of Dr Knox’s whole evidence, if it’s based on that?
MR BICKFORD: Well, that’s what we would be putting, Senior Member.
MR MULLER: You know, I haven’t read through all the doctors’ evidence but if it’s based on Mr Coulton facing death through jumping in with the crocodiles and being worried about other people being eaten by crocodiles, you know, look, fair dinkum, it’s ridiculous. We will adjourn now and we will resume at 10.15 in the morning.”
At the time the statement was made, all the evidence as to what occurred in Darwin on 8 October 1988 concerning the recovery of Pte Woods from Darwin Harbour was before the AAT. The evidence was documentary and oral; the oral evidence being the evidence of both the applicant and Wells.
The statement indicates that the AAT would not accept the applicant’s version of events and that any medical evidence to be called based on acceptance of that version of events was of questionable value. In context, the AAT was inviting the applicant by his legal representatives to review the value of calling further medical evidence if it was based on the assumption that the applicant’s version of events as to his involvement in the Darwin “crocodile” incident was correct and accepted by the AAT.
It was open to the AAT to have said nothing, having come to the view on that issue, but it chose not to, presumably in the hope of reducing the evidence called. The further evidence was in fact led on the applicant’s behalf and the AAT entertained full submissions on all issues. In its reasons it outlines why it rejected the version of events put by the applicant.
The applicant was not prejudiced in the conduct of his case by the interposition of Wells as a witness. There was no procedural prejudice to him. His position was prejudiced by the weight and cogency of all of the evidence which the AAT accepted and by the inconsistent versions given by the applicant, including the later inclusion of crocodiles as part of the incident and of his being in the water and at risk of attack from them. Once all the evidence was in, his version of events had to be weighed against the available contrary evidence whenever the AAT turned its mind to the issue. It found the evidence of the applicant wanting.
There is no substance to Ground 4.
CONCLUSION
The application is dismissed. Costs should follow disposition of the case in the ordinary way.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate:
Dated: 14 September 2001
Counsel for the Applicant: Mr S Pilkinton Solicitor for the Applicant: Richards Lawyers Counsel for the Respondent: Mr J Wallace Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 May 2001 Date of Judgment: 14 September 2001
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