DAVE BELL and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2009] AATA 966
•17 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 966
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5927
VETERANS' APPEALS DIVISION ) Re DAVE BELL Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date17 December 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Royal Australian Navy (“RAN”) from February 1995 to January 2000 – applicant suffered ankle injury in 1997 in course of RAN service and subsequently contracted generalised anxiety disorder and panic attacks as result of that injury – respondent accepted liability to pay compensation to applicant for ankle injury and generalised anxiety disorder and panic attacks – applicant subsequently claimed compensation for post traumatic stress disorder (“PTSD”) on basis that caused by incidents in course of RAN service in 1998 – Tribunal not satisfied that applicant suffers from PTSD – respondent not liable to pay compensation to applicant for PTSD – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1) , s 5 and s 14(1)
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
17 December 2009 Deputy President S D Hotop Introduction
1. Dave Bell (“the applicant”) served in the Royal Australian Navy (“RAN”) from 13 February 1995 to 24 January 2000. His rank on discharge was Able Seaman Cook 2.
2. The applicant has applied to the Tribunal for review of a “reviewable decision”, made on 19 November 2008 by a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), rejecting his claim for compensation under the SRC Act in respect of “post traumatic stress disorder” (“PTSD”). The applicant had claimed that he contracted PTSD as a result of various incidents which occurred in the course of his service on board HMAS Geraldton during 1998, including “threats to kill [him] from other sailors, intimidation, bastardisation, bullying and the throwing of [his] chef knives and equipment over the side of the ship by other sailors”.
The Evidence
3. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T16, pp1–211) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· bundle of supplementary documents (S1–S70, pp1–232) tendered by the respondent (Exhibit R1);
· statutory declaration of Elaine Hogan, dated 23 March 2009, tendered by the applicant (Exhibit A1);
· “Administration of Detailed Assessment of Posttraumatic Stress (DAPS)” report of Ms Dale Kent, dated 25 February 2009, and “Comment on DAPS Report” by Ms Elizabeth Sachse, dated 25 February 2009, tendered by the applicant (Exhibit A2);
· report of Dr Lawrence Terace, dated 9 July 2009, tendered by the respondent (Exhibit R2);
· bundles of documents produced under summons by Dr B J Price (Exhibit R3), Dr S Proud (Exhibit R4), Professor R Kosky (Exhibit R5), Dr L Risbey (Exhibit R6) and Ms E Sachse (Exhibit R7); and
· the oral evidence of the applicant.
Background Information
The applicant’s service psychological records
4. On 2 June 1998 Ms Marie Bettridge, Psychologist, HMAS Stirling, provided a report to the Commanding Officer, HMAS Geraldton, in response to a referral by the applicant’s Divisional Officer for assessment of his suitability for service on “minor war vessels” in the light of “concerns about his lack of acceptance by other crew members and a poor attitude to his branch and work”. In her report Ms Bettridge summarised the applicant’s reported “problems” as follows:
“ Problems: David states that he is unhappy on Geraldton. Finds that he is busy all the time and works long hours. Has all the responsibility as the only cook on board. Other sailors get to go to sleep but he is always working. Finds this irritating and finds the pressure of being fully responsible not to his liking. Doesn’t want to cook for a living anymore but wants his certification which he will get in 9 months time. Admits that he gets easily agitated and is impulsive – reacts without thinking and aggravates the situation. Claims his anger about others doing very little, and ‘not being able to just sleep’ even if he had the time makes him not get on well with others. Other stressors – too cramped, nothing to do, can’t get fit, pressure to do work on own, sea sick at first, works long hours. Gets worn down after a few days at sea and doesn’t put as much effort into his menu planning.” (S39, p 139)
Ms Bettridge assessed the applicant as “unsuitable for service on Minor War Vessels”. (S39, p141)
5. On 3 August 1998 Mr A Camac, Senior Psychologist, Maritime West, provided a report to the Commanding Officer, HMAS Stirling (where the applicant was then serving), in response to a referral following the applicant’s having been charged with a disciplinary offence, namely, absenting himself without leave from HMAS Geraldton. In his report Mr Camac summarised the circumstances leading to the applicant’s referral to him as follows:
“ Despite recent referral/report, XO requested a further assessment prior to sentencing for charges arising from illegal absence. After last visit, and despite Report against continued MWV service X was taken to sea in GERALDTON – reports a bad trip with combination of flu and seasickness – wanted to see Doctor in Broome (X reports lack of support from COXN; Ship reports X going off on own to make appointment); when returned with MO Recommendation for blood tests and not going to sea X reports lack of support and threat of still going but on ‘light duties’. (Ship reports delay in reporting info to Ship, still deliberating when X absented himself); X reports feeling so unwell just wanted sleep/rest (Ship alludes to local girl known to be a friend, etc – X says he had mentioned her to through (sic) off scent from mate he stayed with). When he couldn’t get blood results on Sunday to prove his state X got on bus (talked to M first, she met him and brought him to STIRLING next day). When he got to STIRLING placed on convalescent [leave] which appears to lend some weight to his side of tale. Certainly since returning from this he is reported upon quite favourably in terms of performance in the galley (and even away with CD exped).” (S39, p 137)
6. On 12 October 1998 the applicant, who was then serving on HMAS Cerberus in Victoria, was referred to a psychologist for assessment for a transfer to Western Australia on compassionate grounds (S39, p 136). H Martin, Psychologist, interviewed the applicant on 13 October 1998 and prepared a report on that date which states as follows:
“ 1. Referred by MO for an assessment for a compassionate posting to WA.
2. David presented in an agitated and anxious manner with hand wringing gestures and fiddling with his cap. Eye contact was intermittent and he gave the impression by this and his sidetracking and vague answers of being evasive. I also wondered if he was exaggerating his answers on several occasions. Some inconsistencies (re gfr/fiancée) noted in his story from what he told Stirling psychs and he blushed when I challenged him with these inconsistencies.
3. David posted into Cerberus 10 days ago and described the past week as ‘pure hell’. He claims he is engaged to a 28 yr old Steward, Cathie who works in the Stirling wardroom and they have been together for nine months. Wedding date is set for 23 Jan 1999.
4. He says he is not eating, has lost 10 kilos since he arrived, he can’t sleep and is lying awake until 3 or 4 am, he feels sick, has a ‘bad gut wrenching feeling’, feels helpless, frustrated, is not exercising, has no enthusiasm, doesn’t want to be at work and can’t focus or concentrate. He claims Cathie is upset with the separation as well. At the weekend he was close to flying back to Perth but was talked into trying to do the ‘right thing’ rather than going AWOL.
5. David says he was told when he was taken off Geraldton that there was a high probability that he would be posted to sea from the west. He thought he’d be ok and so didn’t take any action but a week before he posted to Cerberus he tried to change the posting. He has spoken to his div chief in the Cerberus main galley where he works, CPO Hamilton who has phoned postings but they have been told he will be at Cerberus until next July. David is unhappy with this and said he would pay his own way to get back West.
6. Apart from his fiancée he says he wants to be back in WA as his mother has separated from his step father and he is very close to her.
7. He and Cathie intend to put in for a discharge next July as both believe Navy life is not for either of them ‘too laidback … want to do our own thing’. Cathie has a posting to Anzac in Nov.
8. We discussed some coping strategies and I reinforced the need to eat, cut back on alcohol and caffeine (drinking 12-13 cups a day) and to go to the gym. I also talked about managing his anxiety by distracting himself rather than dwelling on his worries. He took the view that nothing would help unless he was posted West.
He is not functioning or coping well but I am concerned about the inconsistencies in his story. I don’t doubt that he is upset at being at Cerberus – but is this because it’s not what he wants? (and now attempt to manipulate the system?) and/or a (further?) indicator of emotional unsuitability for the Navy. Given his distress he would be better in the West and it looks like his decision to discharge will be an appropriate outcome for all concerned.
…” (S39, p 134)
7. On 19 October 1998 a Medical Officer at HMAS Cerberus referred the applicant to Dr J Cronin, Psychiatrist, because he was “currently experiencing depressive symptoms since posting here from HMAS STIRLING (WA)”. Dr Cronin reported on the same date that he recommended that anti-depressant medication be prescribed for the applicant and that he “fully support[ed] a compassionate posting for him back to WA ASAP”. (T14, p 92)
8. On 12 July 1999, following a conviction of assault in Frankston Magistrates’ Court on 7 July 1999, the applicant was referred to the Psychology Section , HMAS Cerberus for a report on his suitability for retention in the RAN (S39, pp 129–130). An “In-Service Psychology Assessment Record”, dated 16 July 1999, prepared by Mr J Parker, Psychologist, HMAS Cerberus, states as follows:
“ A recent episode of violence in a pub has resulted in a $2000 fine and very close to a custodial sentence being handed down. It appears the fight was to settle a debt to a third party and that x acted for money to beat up a patron of the hotel.
He has also had restraining orders against him in a past relationship dispute.
He has also gone AWOL from his ship in an apparently premeditated way.
He has a script for anti depressants from Dr Cronin but he has not taken them recently and gave up on them after a 30 day test.
He told me he has been depressed over relationship difficulties and did not talk to Dr Cronin about periods of agitation and needing to move about and do things, periods of financial recklessness, and violence, high speed speech and behaviours he later regrets. He related the various incidents of his file to periods of hyper activity or to periods of depression.
He abuses alcohol also.
He reports no history of mental illness in his family but does report his father as an alcoholic. He says his mother left the relationship when he was 13 years old and left him and his brother in dads care. His brother is a doctor of medicine at a Perth hospital.
He says his periods of hyper activity became worse when he was about 16 years old.
He describes himself as an incredibly active child who could not stay in one place and was always fidgeting and getting into trouble. He said he had not been diagnosed as having ADD HD (sic).
During interview he was polite and gave the impression of being much brighter than his measured 102. His speech and presentation suggested a more polished individual than a person who had just been considered for a custodial sentence for attacking another person. This presentation was also quite different to that described by the recruiting Psychologist.
I did not trust what this man was telling me. Not sure why I did not trust him but I got the impression of a polished salesman negotiating his way out of trouble. Clearly the behaviour is placing the Navy in an intolerable position and needs to be controlled. I would prefer to RNIN [Retention Not in the Interest of the Navy] him now but suspect he may have a condition which requires medication and control and that this could explain a lot of his problems to date. Last chance stuff and it needs to be clearly documented as that last chance”. (S39, p128)
9. On 29 July 1999 Dr Cronin reviewed the applicant at the request of a Medical Officer at HMAS Cerberus and he opined as follows:
“ …
I do not think that he has bipolar affective disorder but see it as anxiety occurring on the background of some personality difficulties. The differential diagnosis is of a cyclothymia.
…” (T14, p 83)
10. On 13 August 1999 Dr Cronin reported that the applicant “continues to struggle with anxiety and depressive symptoms”, and he continued:
“ He says he is being subjected to many adverse comments and innuendo at work, and is having trouble coping with it, to the point he fears he will act irrationally with knives .…” (T14, p 79)
11. Dr Cronin prepared a report dated 1 September 1999, addressed “To Whom It May Concern”, which states as follows:
“ [Mr Bell] has seen me on four occasions since 19 October 1998. He has suffered from anxiety and depressive symptoms as a result of difficulties he has had in coping with being at sea, and in being posted to Cerberus away from his fiancée. He was apparently not able to be posted to Western Australia and his condition continued to deteriorate. He was treated with antidepressant and anti-anxiety medication but he has not shown any improvement until the last two weeks.
I last reviewed him on 26 August when he reported feeling better. Whilst the antidepressant medication may have had some impact, the fact that he was about to go on sick leave and was then probably going to recuperate in Western Australia prior to his discharge has helped his mood considerably.
In my opinion Mr [Bell] has personality features which make it difficult for him to cope with the flexibility required by the Navy and that any prolonged absences from his home in Western Australia are likely to be deleterious to his health. Therefore in my opinion he should be discharged as retention is not in the interests of the Navy.” (T14, p 74)
The applicant’s claim for compensation in respect of his right ankle
12. On 18 August 1999 the applicant claimed compensation under the SRC Act in respect of an injury to his right ankle sustained on 4 May 1997 in the course of his RAN service (S3).
13. On 12 October 1999 a delegate of the respondent made a determination accepting liability under the SRC Act to pay compensation to the applicant in respect of an injury, namely, “antero-lateral instability right ankle”, sustained on 4 May 1997 (S7).
The applicant’s claim for compensation in respect of stress and anxiety
14. On 11 October 1999 the applicant claimed compensation under the SRC Act in respect of “stress and anxiety attacks” experienced by him since his posting to HMAS Cerberus on 5 October 1998 (S5, S8).
15. On 27 October 1999 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant in respect of his claimed “stress and anxiety attacks” (S9).
Post-service psychological and psychiatric reports regarding the applicant
16. Mr Paul Ryan, Clinical Psychologist, provided a report, dated 3 October 2001, regarding the applicant to a rehabilitation consultant at CRS Australia as follows:
“ Thank you for referring David once again. He said that he had been forced to give up work due to the difficulties he was having with concentration and poor efficiency. He has significantly reduced his marijuana use but continues to use it when feeling angry, tense and agitated. These episodes can be of varying frequency he noting that he can have good weeks and then have four or five episodes within a week. He remained concerned about the intensity of his anger and the fact that small issues could create anger and that the anger then did not quickly subside but tended to linger for a day or so. He was aware also of feeling guilty about smoking marijuana and at times having alcohol to cheer up. He was concerned about this cycle saying that he wanted to reduce stress, anger and the residual effects of anger.
David reported a reduction in his pain as a consequence of having acupuncture. He said that he required an operation but this could only happen after having cortisone injections in his ankle. As you are aware David is needle phobic. He has gone to significant lengths in the past to avoid having needles. This includes taking trips out whilst in hospital, refusing to have blood taken for the purpose of diagnosis when very ill and removing a decayed tooth with pliers. He noted that when thinking of having cortisone injections he had images of the needle going through tissue and cartilage and thought about the pain associated with this. There was also irrational thinking he being anxious that the needle might slip or that it might stick in some way. He at this stage could see no way of having a needle beyond being under general anaesthetic, which thus far doctors have refused.
Overall David continues to face significant mood swings with associated anger, tension and agitation. This occurs in the context of the current stressors that he faces and as previously documented likely a well of anger from formative years. …” (S11)
17. Dr S Law, Consultant Psychiatrist, provided a report, dated 18 January 2002, regarding the applicant to the respondent as follows:
“ …
History of Presenting Problems
...
He reported that he had joined the Navy in 1995. He left the Navy 2 years ago, after 5 years of service as a chef. He suffered an ankle injury from slipping down a steep ladder in 1997 when he was on a Navy ship. He had an ankle reconstruction operation and is awaiting another operation on the same ankle because he was still having problems with the ankle. He stated that prior to his ankle injury and operation, he was a very active person who did lots of strenuous exercises including running. He was also very competitive. He has ‘this win thing, does not like to feel I’ve lost to him’. He had been unable to do any strenuous physical activities, which placed strain on his injured ankle since his naval accident.
He reported that he had been increasingly irritable, impatient, short tempered and ‘upset almost every day’. He stated he ‘got peed off when something small happened’. His ‘behaviours had been shocking’. He ‘got (sic) a short fuse’. He ‘can be violent and aggressive to people’. He had feelings of road rage when driving. Even at home, he had ‘lost the plot, grabbed the tap handle so hard that it came off’. He stated that he ‘used to be all right’, but is easily stressed out currently. He admitted to have (sic) a quick temper since young. He also complained of difficulties in his concentration, in sustaining attention and in remembering things. He is however good at his computer games and can spend hours on his Sony Play-station at night.
When asked about depression, he stated ‘I don’t think I get depressed, not aware of it. I had not been happy for a long time’. He also had sleep problems at night. He denied having suicidal thoughts. He had been previously treated with the antidepressants Fluvoxamine for 6 months and subsequently with Citalopram. He stated that ‘they didn’t work’. When he was in the Navy, the Navy doctors had prescribed Xanax, and Valium to him to help him calm down. He had also been given a sleeping tablet by his mother to help him calm down. He had also been using marijuana regularly over the years to calm down. He does not drink much as drink made him more easily upset and quarrelsome. He had been charged with assault after an argument and fight while in Melbourne.
He stated that he worries a lot and get stressed (sic). He is worried about appointments, whether he can work, about what will happen with his operation, about money, about his car breaking down. He is also worried and can get into a panic about not remembering things. He stated he had to write things down and put it on the pin board. He has a needle phobia, fear of injections. He also had obsessional traits. He is very fussy, liked things to be perfect, is upset if his room is not tidy or spotless. He checks the door lock, aluminium door and the shed twice.
Personal & Educational Background
He grew up in Scotland and came to WA when he was 12. The family lived in the Rockingham, Safety Bay area. His father was a heavy drinker. He was described as usually placid, but had violent (sic) and quick temper. He was violent to his mother. He stated ‘I was hit a lot when I was a child’. When his parents separated, his father initially looked him after (sic). He was ‘kicked out’ because of his behaviours.
He stated his mother told him he had behavioural and school problems since he was 5. He was taken to see several doctors. He ‘annoyed everyone at school from primary 3 – to the point he was separated from his class with a teacher coming to teach me’. He ‘wagged High School for a few months before I was found out’. He stated ‘I had no drive to learn’. He was good in maths and attained As and Bs, but had poor grades in other subjects. He left school half way through year 10 because he threw a chair at a teacher who kept picking on him.
He worked in a supermarket after leaving school. He then worked as a kitchen hand and took up an apprenticeship a (sic) chef for 2 years. He had also driven forklifts for about 2 years.
Mental state findings
He presented as a tall, fit looking young man with short brown hair and a tattoo on his left upper arm. He sat quietly and calmly throughout the hour-long interview session without any restlessness or overactivity. He had normal orientation and normal thought process. He had a good memory and recollection. He impressed as having good intellectual abilities. He did well on serial 7 subtraction, memory and concentration tests given to him. He had a positive responses (sic) on the ADHD screening questionnaire.
He had anxiety, anger and obsessive symptoms. He did not describe depressive symptoms. He did not have any psychotic or abnormal experiences.
Diagnoses
1.Adjustment Disorder with anxiety, irritability, anger reactions and obsessive-compulsive symptoms
2.Marijuana associated ambivalence, motivation, volition, concentration difficulties and emotional reactivity
3.Anger dyscontrol episodes
4.Possible ADHD.
He has adjustment difficulties following his naval ankle injury. The emotional and psychological symptoms had persisted over the past two or more years. His regular taking of marijuana had caused additional difficulties. He had rationalised the use of the marijuana as ‘helping him calm down’.
He has self-reported symptoms which suggests he had ADHD. There need to be collaborative objective evidence and information from his mother, school reports, naval medical reports, reports from other naval service personnel who had direct contact with him over the past 5 and more years, before the ADHD diagnosis can be confirmed.
…” (S12)
18. Dr Stephen Proud, Consultant Psychiatrist, provided a report, dated 21 April 2002, to Dr Price, the applicant’s treating general practitioner, in which he opined that the applicant:
· “suffers from Generalised Anxiety Disorder, Panic Attacks and Agoraphobia”;
· is also “paranoid” and “often has a feeling that people are looking at him”;
· “probably also qualifies for a diagnosis of ADHD since he was a young man”;
· uses marijuana “to cope with these problems” and “would attract a diagnosis of Marijuana Dependency”. (S13)
Subsequent claims for compensation by the applicant and related medical reports
19. On 2 October 2002 the applicant claimed compensation under the SRC Act in respect of a condition described by him as “adjustment disorder/anxiety” on the basis that he developed that condition as a result of the compensable right ankle injury which he sustained on 4 May 1997 in the course of his service on HMAS Perth (see paragraphs 12 and 13 above) (S14).
20. Professor Emeritus Robert Kosky, Consultant Psychiatrist, provided a report, dated 12 February 2003, to the applicant’s solicitors in connection with the abovementioned claim for compensation. In that report Professor Kosky set out the applicant’s history as follows:
“ History:
Mr [Bell] was born in Fife in Scotland and came to Australia at the age of seven with his family. He had attended three schools in Scotland and settled at Lynwood and then Safety Bay Primary Schools in Perth. He attended Safety Bay High School. He left school in the first term of Year 10. He lived an unsettled life until he joined the navy at age 19 in 1995. He joined as an apprentice chef. He said he liked the work and ‘before the accident I was getting on fine’.
On 4 May 1997 Mr [Bell] slipped while going down a ladder while on HMAS Perth and injured his right ankle. He has had problems with his ankle since. These have included pain and loss of mobility and stability in the joint. Currently he wears a brace most days.
Mr [Bell] said that from 1997, after his accident, until 1999 he could ‘still do parades’. In 1999 he was transferred to HMAS Cerberus and an operation was performed on his ankle by Dr McMahon a civilian doctor. Mr [Bell] said that two or three months after this operation he was walking when the ankle gave way and ‘dislodged a metal staple causing me great pain’.
Following his accident in May 1997 and before this operation Mr [Bell] suffered an anxiety attack and was seen by a psychiatrist. He said he was given Luvox and Temazepam and settled down fairly quickly but following the operation in 1999 he had further anxiety attacks and was treated with Efexor and Alprazolam. He said he again settled down to some extent.
In 2000 Mr [Bell] was transferred to HMAS Stirling. He said he was given ‘sit down duties’. He said, ‘I was upset that I couldn’t work as a chef. I was very moody. I couldn’t sit still at the computers and do the paperwork. I had had enough. I discharged myself.’
Since his discharge Mr [Bell] has been living at Port Kennedy with a partner. He has not been working.
Background:
Mr [Bell] said that he struggled at school because he had difficulty concentrating and was distractable. He said that he could manage the academic work but his restlessness was very difficult for him to deal with. It was the main reason he left school. He said he was much better with the discipline imposed by the naval environment. He found the routine and regulations helped him to focus on task.
He said that he thought the question of ADHD had been raised when he was at school but this was never investigated. He said the (sic) Dr Price had felt that ADHD may be an underlying problem for Mr [Bell].
Mr [Bell] was extremely stressed about the age of 14 when his parents separated. His mother currently works in the Australian Tax Office. He does not currently see his father, who is an electrician. At the time of the separation Mr [Bell] was unable to choose who he should live with and tended to move between both parents. While living with his father he got into several altercations with him and moved out and lived for a period with friends. They were a bad influence on him. He started to drink heavily with them and to get into trouble with minor delinquent acts and the law. He realised that he was heading for bad ways and for that reason joined the Navy in order to try to reassert some discipline into his life. He said that he immediately loved being in the Navy. He has been extremely disappointed that he has not been able to go with a naval career. He also liked cooking and saw himself as becoming a chef of the first order. He said that he is extremely disappointed that he cannot work as a chef because of his ankle injury.
Mr [Bell] considers he is in a stable relationship with his partner who is supportive of him.
Mr [Bell] believes that he will have to do a ‘sit down’ job in the future. He feels he cannot do this because of his restlessness and inability to concentrate on task.
At the time of my first interview with him Mr [Bell] was using alcohol moderately, one or two beers a day but was having between 40–60 ‘bongs’ a day (a cost of $50–$75 a day).
Mr [Bell] has not suffered any other physical illnesses and feels that he is reasonably healthy. He said that was (sic) ‘always very physical, cycling etcetera’ and the loss of his capacity to do a lot of physical activity has distressed him.
Symptoms
With respect to his anxiety symptoms Mr [Bell] said that his first anxiety attack occurred following the accident in 1998. He said that he became very depressed and anxious. He was quite agitated and he felt that he had completely lost his confidence.
Following the operation in 1999 and its subsequent complications, Mr [Bell] said that he became anxious again, had further attacks of anxiety and depression. He said that he felt his colleagues were commenting about him and that his responses were inappropriate and angry.
Mr [Bell] said that since 1999 he has become very irritable, impatient and short tempered. He said that he gets agitated, aggressive and feels that he may lose control of himself.
Mr [Bell] said that he has also been depressed from time to time but this is more a sense of hopelessness and the feeling of ‘getting nowhere’. He said that he has had problems in managing the pain. He has had help from psychologists and from analgesic medication but he continues to have pain in his ankle and that makes him feel rather hopeless.
Mr [Bell] also said that he felt very distressed that he had lost his naval career. He feels bitter about what had happened and feels at a loss to know what to do with him (sic) since he has been discharged.
Mr [Bell] has several other symptoms which are not currently prominent. He said that he has a major needle phobia and a fear of injections. He is a perfectionist and a worrier. He tends to check on things more that (sic) he thinks is necessary and he keeps lists to help him check.”
Professor Kosky then noted his findings on clinical examination of the applicant and expressed the following opinions:
“ Diagnosis:
The history and clinical examination suggests the high probability for the following diagnoses, which are concurrent.
1.Generalised Anxiety Disorder with Panic Attacks. Mr [Bell] has excessive anxiety and worries occurring every day and finds it difficult to control his anxiety and worry. These symptoms are associated with restlessness, difficulty concentrating, irritability and sleep disturbance. Anxiety and worry is not about having a panic attack. However, he does have panic attacks. These occur relatively frequent (sic), about once a week. He can be situationally dependent, such as during a clinical interview. The onset of panic attacks preceded the use of substances.
2.Attention Deficit Hyperactivity Disorder. In my view the clinical history and examination is consistent with a high probability of the presence of Attention Deficit Hyperactivity Disorder. The onset of this disorder appears to be in childhood and he reports characteristic symptoms during his school years and later. The clinical examination, even when his anxiety levels are relatively low, is consistent with his report of systems of distractibility and difficulty concentrating.
3.Substance use. Currently Mr [Bell] is using marijuana as a form of medication. I do not consider he is, at present, dependent on marijuana. He ceased use for several weeks when requested to do so. However, marijuana dependency cannot be ruled out.
The relationship of these diagnoses to the accident of 4 May 1997:
In my opinion the relationship is as follows:
1.The Generalised Anxiety Disorder with Panic Attack (sic) is directly related to the accident and follows it directly.
2.Attention Deficit Hyperactivity Disorder is not related to the accident. Neither is it a cause or an effect of the accident.
3.Substance use. Mr [Bell] appears to using (sic) marijuana as a form of medication for Anxiety Disorder and Attention Deficit Disorder (sic). With respect to the former condition, the substance use can be said to be an indirect effect of the accident.
…” (S16)
21. On 18 February 2003 a delegate of the respondent made a determination that the respondent was liable under the SRC Act to pay compensation to the applicant in respect of “generalised anxiety disorder and panic attacks”. (S18)
22. The applicant subsequently claimed compensation under the SRC Act for permanent impairment in respect of his abovementioned compensable injuries, namely, “antero-lateral instability right ankle” and “generalised anxiety disorder and panic attacks”. (S20, S21, S23, S26)
23. On 3 June 2004 the applicant was examined, at the request of the respondent, by Dr Paul Psaila-Savona, Consultant Occupational Physician, Health Services Australia, in respect of his “antero-lateral instability right ankle” injury, and by Dr Gosia Wojnarowska, Consultant Psychiatrist, Health Services Australia, in respect of his “generalised anxiety disorder and panic attacks” injury. In a report dated 8 June 2004 Dr Psaila-Savona assessed the degree of permanent impairment resulting from the applicant’s right ankle injury as 5% under Table 9.2 in the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”) and as 30% under Table 9.5 in the Guide (S27). In a report dated 18 August 2004 Dr Wojnarowska assessed the degree of permanent impairment resulting from the applicant’s overall psychiatric condition as 10% under Table 5.1 in the Guide but opined that “only 5%” was “related directly to the injury that he sustained in the Navy”. (S28)
24. On 19 October 2004 a delegate of the respondent made a determination that the respondent was liable to pay compensation to the applicant for permanent impairment and non-economic loss in accordance with ss 24 and 27 of the SRC Act and that the total amount of compensation payable to the applicant was $67,400.90 on the basis that he suffered a whole person permanent impairment of 34% under Tables 9.5, 5.1 and 14.1 in the Guide (S29, S31).
25. On 3 November 2005 Mr Paul Ryan, Clinical Psychologist, reported to Dr Price, the applicant’s treating general practitioner, as follows:
“ Thank you for referring David who I have had previous contact with in June and September 2001 when he was referred to me by the CRS for adjustment to disability therapy. On this occasion he reported that he was facing charges due to making threats against his father and a past work colleague, this occurring in the context of him ceasing heavy use of marihuana.
As you know, David served in the navy as a chef from 1995 to January 2000. He injured his right ankle in 1997 and had an operation on it in 1999. He had ongoing pain and, beyond analgesic medication, began using marihuana in 1999. When seen in 2001 he had difficulty with pain and associated anger and frustration which, in turn, was affecting his relationship. He worked briefly but was unable to sustain this.
On seeing David again he reported that he continued to wear a brace on his ankle and his pain remained problematic but reduced. He continues in his relationship of nine years which he values and he and his partner had built their own home in 2002. He had decided to give up marihuana due to its adverse effects, he finding it difficult to eat and sleep and being plagued with tension, agitation and ‘paranoid’ thinking. He reports that ceasing its use had been helpful, he now feeling far more energetic, comfortable and motivated. He was also keen to resume work and was looking at a number of options.
…” (S33)
26. On 23 October 2007 Dr Lance Risbey, Psychiatrist, Trauma and Stress Specialists Centre (“TASSC”), referred the applicant to Ms Elizabeth Sachse, Clinical Psychologist Registrar, TASSC. The referral letter is as follows:
“ Would you please see and treat this 33 year old ex-sailor for Individual Focused Psychological Strategies Sessions, for a series of 6 interviews. I anticipate he will require a further 6 interviews (12 in all) pending my review.
He has severe Generalized Anxiety Disorder, with features consistent with probable PTSD. Recently the issue of shame has emerged and I believe it deserves specific focus in your capable hands.
I will continue to trial medications to improve his sleep and reduce anxiety levels.
…” (S34)
27. On 1 November 2007 the respondent received a “Compensation Claim for Permanent Impairment” form completed by Dr Risbey and dated 30 October 2007. In that form Dr Risbey described the diagnosis of the applicant’s current condition as:
“ Generalised Anxiety Disorder
Probable chronic PTSD”
and, in addition to the information requested in the form, he expressed the following opinion:
“ In my opinion his permanent impairment will be in excess of 30% for GAD alone, with treatment.” (original emphasis) (S35)
28. On 7 November 2007 the respondent received a letter from the applicant as follows:
“ As you are already aware I have been receiving treatment from Dr Lance Risbey of the Trauma and Stress Specialists Centre. Dr Risbey has been treating me on a fortnightly basis for approximately nine months, with several SSRI medications.
Dr Risbey has completed and returned the paperwork to you in order to have my psychological percentage re-evaluated.
…
I therefore, after discussions with Dr Risbey, formally request that Dr Risbey do the final percentage evaluation for the MCRS tables appropriate to determine a correct outcome.” (S36)
29. Ms Elizabeth Sachse, Clinical Psychologist Registrar, TASSC, provided a report, dated 19 December 2007, regarding the applicant to Dr Risbey. That report states as follows:
“ Thank you for referring Dave to see me for focused psychological treatment. I have seen Dave for eight sessions commencing 31st October 2007 and ongoing.
Over this period of time I have observed Dave to be highly, physically, aroused; with excessive sweating, agitated leg and hand movements, and difficulty maintaining eye contact. I have observed that Dave speaks quite fast when more anxious, and has trouble staying focused on the topic being discussed. I have also observed that Dave ‘skips’ over potentially distressing events when recalling his life history.
I noted that Dave did not report non-specific, ruminating worry. Rather he described behaviours of avoidance. He is particularly avoidant of being in any place where there may be more than one or two people. He is also avoidant of being in exposed places, or in a position where he may be observed, without being able to observe others.
The focus of our initial sessions was on Dave’s childhood, which was quite harsh with a physically abusive father, and then later school bullying. Dave appeared to have managed to overcome his childhood problems one (sic) he left home and had a late growth spurt. He became a lot taller and started working out which resulted in him becoming physically strong and muscular. He described meeting his father again for the first time after physically ‘filling out’, particularly the feeling of being able to defend himself. He particularly noted that his father was surprised when he saw Dave, and his father treated Dave with respect from that point onward. However there still appears to be unresolved issues between Dave and his brother, Kenny.
During our most recent sessions we have focused Dave’s (sic) time on the Geraldton. This is the boat that he was transferred to after injuring his ankle; later found to be very serious ligament damage which is ongoing. Dave initially described his time on the Geraldton as distressing due to bastardization, which took the form of having his equipment damaged; being set up on Charges by two particular Petty Officer (sic); problems with the crew not doing there (sic) duties ie washing own dishes; stores going missing, and eventually his expensive and personally engraved knife set (valued at approximately $2500) going missing, presumed thrown over-board. Dave felt that he was being singled out because he was restrictive (sic) duties due to his ankle injury. He described becoming ‘worn down’ by the continual harassment, and eventually something ‘snapping’ in his head. He eventually became so physically and emotionally depleted that he went Absent Without Official Leave. He returned to Stirling Base to seek medical treatment. He made passing references to ‘things that could happen at sea’ and how ‘people can disappear and never be seen again’. He was initially reluctant to expand upon these remarks.
When asked what could happen at sea, Dave gave a number of detailed scenarios about how he could have been attacked and ‘flipped overboard’. These included – two or more crew with Boson (sic) knives grabbing him pushing him over the guard rail, if he grabbed anything to save himself they could cut through his wrists with their sharp Boson (sic) knives and throw his hands overboard with his body, hose down the deck and ‘no one would be the wiser’. Another scenario was one or more crew surprising him when on night watch by himself and throwing him overboard. He also stated that one his (sic) ovens had been tampered with he felt that any of the kitchen equipment could be made ‘live’, giving him a fatal electric shock. In the chaos that would follow the crew could then fix any wiring that had been tampered with, and the death would be considered an accident.
Dave reported that one of the crew he was friendly with warned him to ‘stay close’ when on the upper decks as there was ‘talk’ amongst some of the crew and ‘something could happen to Dave’. Dave took this to mean that there was a plan to injure or kill him. Dave also reported being taunted by a particular Petty Officer during live gun firing practice to ‘come down and have a shot’. Dave felt that if he was exposed he may easily be hit by a random round of gun fire. He reported always standing next to the Executive Officer during these exercises as ‘no one would shoot an Officer’. Dave also reported taking precautions such as never walking too close to the guard rails; never having a crew member in front and behind him while on upper decks; locking the baulk heads when on night duty so that he could hear if anyone tried to come on deck; and carrying his Chef knife with him at all times, including when he slept. He feared being thrown overboard. Dave stated that he constantly lived with an awareness that he could be made to ‘disappear’ at any time. He also described the crew acting in a threatening manner. Most of the crew would take their sun-glasses off and stare at him for long periods of time. On a number of occasions, fifteen or more men would remove their sun-glasses and just stare at him. Dave found this very threatening. He was also made aware that ‘others had disappeared at sea’ and he reported that another junior sailor was harassed so severely that he had to leave the boat. Dave stated he became irritable, aggressive, and on occasion he was violent. He described becoming so distressed he would punch the baulk heads or lockers, and on one occasion he physically threatened two crew to try and stop the harassment and perceived threat.
During our last session, 19th December 2007, I asked Dave directly if he ever feared for his life while serving on the Geraldton. He immediately stated that he feared for his life on several occasions. He described having to got (sic) to the locker to get the day supply of potatoes from a locker on upper decks. This locker had a heavy metal hatch with a safety pin to prevent it falling onto him. He described how he would have to lean into the locker to retrieve the potatoes. On one occasion the safety pin went missing and the crew started making comments such as ‘be careful Cheffo, that hatch could crack your skull or slice your fingers off’. When Dave tried to get the safety pin replaced it was found that all the pins on the boat had gone missing. The hatch was unstable and could have crashed shut with the rolling of the ocean or if someone pushed it.
The second incident Dave described was also on upper decks. He was descending a near vertical ladder which had a small amount of deck space at the bottom, and guard rails along the deck. If someone went over the guard rails, they would fall two decks and into the ocean. On this occasion, Dave was carrying a 20 kilo bag of potatoes from the upper deck locker. With his bad ankle he was careful to put his arm through the rung of the ladder to stabilize himself and move only when the ship rolled to push him back against the ladder. He had the bag of potatoes on his shoulder and was unable to reach his Chef knife. As he began descending he noticed that two crew members were approaching him from the left and right. Both had removed their sun-glasses and were staring at him. Both had their Boson (sic) knives in their hand but the knife blades were not exposed. Dave felt he was in an extremely vulnerable position. If he misjudged the roll of the ship he could be catapulted over the guard rail and into the ocean. As he descended he felt very exposed and believed that one man could slash his throat when he turned to descend into lower decks or the other man could knife him in the side. He felt he would either be killed or injured, and thrown over the guard rail without anyone else noticing. Dave described how he quickly descended, opened the door to lower deck which effectively blocked one man. Dave then moved the bag of potatoes to his side to protect himself from a knife attack to the side from the second man. He then descended below decks to safety.
On both of these occasions Dave stated he very much feared for his life. He believed that there was a plan to ‘make him disappear’. He did not receive any explicit threats, however the warnings from his friend and ambiguous remarks made by others led him to believe the threat was very real. He became physically and mentally exhausted, dehydrated, and developed a chest infection. He was supposed to be transferred to Stirling for treatment but the Officer in charge of this transfer refused to authorize it. In desperation, and fear of his life, Dave left the ship and caught a bus to Stirling where he was placed on Charges for going AWOL. He also received the medical treatment he needed.
Reviewing the above incidents, and others which I have not included in my report, it is understandable why Dave fears being in crowds or exposed places. He also described severe night sweats where he wakes in terror which turns to anger and rumination about the Petty Officers who harassed him on the Geraldton. The night sweats are so bad that Dave has to strip the bed, turn the mattress, shower and take medication to settle his anxiety. He cannot recall specific dreams about the events on the Geraldton.
Dave also reported that another crew member and friend, Leading Seaman …, went missing at sea two years ago. His body has never been recovered. Apparently this sailor was experiencing harassment similar to that which Dave described. Dave stated that when he heard of … disappearance Dave told his wife ‘that is what they were going to do to me’.
During my sessions with Dave I have not noted any generalized worry despite his obvious highly anxious state. Indeed Dave seems quite comfortable within the constraints of his life style. He does not report any concerns about his marriage, future career, relationships, the state of the world or any other issue.
…” (S37)
30. On 31 March 2008 the respondent received a permanent impairment questionnaire form completed by Dr Risbey and dated 10 March 2008. In that form Dr Risbey opined that, in addition to Generalised Anxiety Disorder (“GAD”) and Panic Attacks, the applicant suffers from PTSD, which he described as a “stand-alone condition arising from traumatic events 1998” (S38, p 97). He also opined that the latter condition was permanent, the date on which it became permanent being 24 January 2000 (S38, p106) and that, “in conjunction with GAD”, the degree of whole person permanent impairment was 30% under Table 5.1 in the Guide (S38, p107). He further opined that the applicant suffers from Substance Abuse/Dependency (in remission) but that that condition is not permanent (S38, p102).
31. On 12 June 2008 the applicant lodged with the respondent a claim for compensation under the SRC Act in respect of PTSD (T4) (see paragraph 2 above). The applicant’s claim form was accompanied by a form completed by Dr Risbey, dated 10 June 2008, in which he specified the relevant diagnosis as “Chronic Post-Traumatic Stress Disorder” and described the basis for that diagnosis as follows:
“ History of multiple traumatic events on board HMAS Geraldton (threats to his safety and his life by other crew members who allegedly indulged in severe bullying behaviour, including brandishing knives, ‘2 against one’; plus subsequent symptoms typical of PTSD (DSM IV)”.
He stated that the applicant first consulted him for this condition on 19 February 2007 (T5).
32. On 16 July 2008 a delegate of the respondent made a determination that the respondent was liable to pay further compensation to the applicant for permanent impairment and non-economic loss resulting from his compensable injury, namely, “generalised anxiety disorder and panic attacks”. The delegate stated that that determination was based on Dr Risbey’s “report” that the degree of permanent impairment resulting from the applicant’s generalised anxiety disorder alone was 30% (see paragraph 27 above). The delegate stated that the total amount of compensation payable to the applicant by reason of this determination was $70,270.18 (S43).
33. On 21 July 2008 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant for PTSD (T9). Following a request by the applicant for a reconsideration, a delegate of the respondent made a “reviewable decision” on 19 November 2008 affirming the determination of 21 July 2008 (T15).
The Present Issue
34. The present issue for the Tribunal’s determination is whether the respondent is liable under the SRC Act to pay compensation to the applicant pursuant to his abovementioned claim lodged on 12 June 2008.
The Relevant Legislation
35. Pursuant to s 14(1) of the SRC Act compensation is payable in accordance with that Act in respect of an “injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
36. Section 4(1) of the SRC Act (as in force at all material times) relevantly provided:
“ In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth …
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
37. Section 5 of the SRC Act relevantly provides:
“ (1) In this Act, unless the contrary intention appears:
…
employee means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
…
(2) Without limiting the generality of subsection (1):
…
(b) a member of the Defence Force; or
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted … by the person’s performance of duties as such a member of the Defence Force …
…”
The Applicant’s Evidence
38. The applicant confirmed that he had provided 2 statements to the respondent in support of his claim for compensation for PTSD – one dated 21 June 2008, the other dated 31 July 2008 – and he confirmed that the contents of those statements are true and correct.
39. The applicant’s statement, dated 21 June 2008, is as follows:
“ INCIDENTS ON BOARD HMAS GERALTON (sic) AND CERBERUS
Before joining the navy I worked full time from the age of 15 till joining the navy at age 20. I worked as a kitchenhand which led to an apprenticeship as a chef. I did this for two years then worked for the Sumich fruit and vegetable wholesalers as a forklift driver. I then went on a 3 month working holiday to Scotland where I worked as a forklift driver and a kitchen hand. Upon my return from Scotland I completed an advanced bar and cocktail course scoring 92.5%. I had no problems with any of these jobs or (sic) did I have any psychological problems if I had there would be no way I would be able to even turn up for the navy interviews, let alone pass them, pass recruit school, pass category school 19 weeks cook course training then continue on to HMAS Kuttabull in Sydney.
After Kuttabull I posted on board HMAS Perth based in Sydney, it was here I had an accident on a ladder damaging my right ankle. I was seeking medical advice about it constantly giving way I was taken off the ship and placed at HMAS Penguin where a specialist told me he would like to insert a camera into my ankle to see what was going on. Meanwhile, he fitted my ankle with a brace. Shortly after I received news of a posting to HMAS Geraldton 1997.
During my time on HMAS Geraldton it started off with no problems but the constant lifting on and off the boat with boxes of stores, with no assistance which I should have been receiving from all crew members as per ships standing orders all crew members are responsible to form a human chain to get them on board. I was doing all this myself as no one could be bothered helping me. I asked them, but was ignored. This caused my ankle to give way on many occasions causing swelling in the form of what’s called the ‘blue wave’ which is bleeding under the skin. My toes would also swell up causing them to join together. It was difficult to wear my safety boots.
After putting up with this for several months I asked the executive officer to evoke (sic) the ships standing orders regarding the stores, it was immediately after this that most of the crew members began making indirect threats on my life. Things in my galley would go missing and break down. My chef knives, personally engraved, went missing, value $2500. I was intimidated on a daily basis and bullied. When I informed the executive officer what had been going on, he questioned them and they all denied it and gave each other alibis. I became anxious, had bad night sweats and no sleep. I then became ill. A civilian doctor at Broome gave me seven days off work. This was ignored by my boss the coxswain. I then went awol catching the bus back to Perth. My mother picked me up then she took two days to convince me to go back to the HMAS Stirling where HMAS Geraldton was based.
Also onboard petty officer … and … had me charged on catch 22 charges. For example: as a cook you must change your overalls daily as I did. Under the occupational health and safety act set out by the navy you only get issued with 8 sets of overalls so on day 9 coming into Dampier my special sea duty station was holding a large float to stop the boat hitting the wharf because I didn’t have my overalls on as they were all dirty. PO … had me charged. Petty Officer … did a similar catch 22 with leaving the power on in the galley. He wanted lunch by noon or I would be charged, so he then called mine warfare stations which meant I had to lie down on the upper decks bracing for mine impact practice. This finished at noon, I left the power on in the galley with roasts in the oven so the crew could eat on completion of this exercise, he then had me charged with leaving the power on in the galley. I was also threatened when retrieving my daily potatoes from the spud locker on the upper deck by two other sailors brandishing bosuns knives. This is only a few examples of dozens of unfair incidents he and his boys who worked under him created to bring me down emotionally and physically, I believe I had some sort of mental breakdown and I have never been the same since.
I still question why it took 2 years and five months to operate on my ankle. This operation, in 1999, made it worse than it was before hand.” (sic) (T7)
40. The applicant’s statement, dated 31 July 2008, which was lodged with the respondent in support of his request for a reconsideration of its adverse determination of 21 July 2008 (see paragraph 33 above), is as follows:
“ INCIDENTS ON BOARD HMAS GERALTON (sic)
In 1998 onboard the geralton (sic) patrol boat we were on our way to Broome, shortly before arriving in Broome I was on the upper deck retrieving my daily potatoes a 20kg bag while descending down the ladder towards the hatch I was confronted by two sailors brandishing bosuns knives. They were on either side of me both were leading seaman marine technicians one called … and one by the nickname … he never used to write his proper name on his overalls just … As soon as I saw them I could tell by the look in their eyes what they had planned, this instantly terrified me I urinated myself as mentioned in Elizabeth Saches (sic) report already provided to MCRS. I quickly descended the ladder opened the hatch and held it open with my foot that cut off one of them I then shifted the 20kg bag of potatoes from my shoulder to under my arm in case the other guy tried to stab me then stepped inside and dogged the hatch down really tight so it would take time for them to undog it and follow me.
Upon returning to the galley I informed my boss the petty officer coxswain who asked if I had any witnesses I said no and he shrugged his shoulders and walked off saying the’re leading seamen you’re an Able Seaman you don’t have a leg to stand on. As far as I know he never even spoke to them about it, I was left with a feeling of complete helplessness and very stressed out it was then I had some sort of nervous breakdown this I believe contributed to becoming (sic) very sick, upon arrival to Broome I was driven to the civilian hospital by Able Seaman … a communicator on board. A civilian doctor examined me and gave me 7 days off work as per my medical records will show. I then returned to the Geralton (sic) normal procedure would be to send me back to HMAS Stirling however the petty officer coxswain denied me this saying I will be staying on the ship and continue working totally against protocol. It was then that I was completely exhausted and fed up with the second hand treatment I was receiving so I left the ship and caught the bus to Perth where my mother picked me up, it took her 2 days to convince me to return to HMAS stirling, I finally returned only to find out they were charging me with AWOL. I presented myself at the sick bay at Stirling where a civilian doctor working there gave me another 5 days off after agreeing I was still very sick. When I presented myself in front of the xo of Stirling to receive my punishment he was even presented with a medical report from the civilian doctor in Broome saying I was very sick and he still gave me two weeks restriction of privileges meaning I had to stay onboard and work from 6am till 11pm for the two weeks no days off. When I returned to the Geralton (sic) when it arrived at Stirling the coxswain told me they did not want me back on board and I was posted at Stirling temporarily then sent off to HMAS Cerberus. Shortly after arriving at Cerberus they sent me to see Dr Cronin a psychiatrist who prescribed me Xanax and anti depressive medication. My mental state continued to decline however.” (sic) (T10, p 39)
41. The applicant was questioned by the Tribunal about the incident involving “two sailors brandishing bosuns knives” referred to in his abovementioned statements. The applicant said that each of the sailors was holding a knife by the handle with the blade closed, but he explained that “it takes about all of a half second to flick” the blade open with the thumb. His evidence continued:
“ All right?‑‑‑They started to move towards me and I could tell by the look in their eye and the way they were staring at me that they meant business. You know you can just tell from some situations, like if you’re in pubs or in the street you can tell when someone has got bad intentions for you. I just – well, I was next to the bulkhead so I flicked the door open and jammed it with my foot. I’d already come down, sorry – to get through this I’d come down from the spud locker and had the spuds on my shoulder like that, 20 kilo bag and was coming down the ladder. And then I – I used to shuffle down the ladder because I had an arm like, I shuffle down and just grab one of the rung as I went down, and then as I got down there, when he was coming I jammed the door open with this foot like that and that blocked him off, and then as he was coming there I shifted the bag there in case he tried to stab me, he’d only hit my arm. Do you know what I mean? So I had the bag like that and then I went inside and dropped the bag of spuds and I dogged the hatch really, really hard. When you dog – there's eight – two four six eight – seven or eight dogs they call them in the Tags. When you dog them right down you push them tight, it sort of bites into the bulkhead a bit and it’s tight. So when you get it you’ve got to really sort of hit to this bit and try and open it, and you can – you sort of hurt your hands a little bit when you’re banging open. So I knew that would have taken, you know, 10, 20 seconds to try and open that. Then I went down to the galley and I said to the coxswain, I said, ‘They’re up there looking at me and holding knives in their hand’. I said, ‘The blades aren’t open obviously, but they’re standing there staring at me and they’ve got their knives and they’re standing like that walking towards me’. I said, ‘I’m not going up there again unless someone comes with me’. He still didn’t do anything, he didn’t even speak to them about it, because I’m an able seaman and they’re leading seamen I’ve got no leg to stand on.
All right, so this – you were kind of out of harms way by this stage. But now, going back to when you say that they were approaching you, holding the knives, as best you can, describe your mental state as to what was happening then?– Well, I know I urinated myself and I was sweating really bad and if you can imagine someone coming towards you and you sort of know that they’ve got bad intentions for you and ‑ ‑ ‑
Yes, if I can stop you there? –Yes.
When you say you ‘know they had bad intentions’, how did you know that and why did you know that?‑‑‑You can just tell by some – if you’ve ever had an altercation with someone you can tell that if – you can tell that they’ve got – it’s hard to describe. You can just tell by the mood of the situation, you can just tell that they had – they were up to something and that they were going to do something. Whether they were going to do that or not that’s what I assumed, because they had the knives there, but I could just tell they were going to do something, and then when they started moving towards me that’s when I was pretty much terrified and I ‑ ‑ ‑
Was anything said?‑‑‑No, there wasn’t. They were just sort of staring like that and I just jammed open the door and had the spuds there and – no, they – I don’t recall anything being said, I don’t think so, but I do remember it pretty well and I’m pretty sure no one said anything. I just knew that they were up to no good and something bad was going to happen and that’s when I got really sort of – I was pretty scared about it. Well, put it this way, I had to go and change my boxers and overalls and all that and basically had to pose out my boots and things. Yes, it’s just one thing that – I had nightmares I was getting stabbed and thrown overboard and it’s not a situation I’d ever want to be in again, after all the problems I’ve had since it ‑ ‑ ‑
…
THE D.PRESIDENT: When I asked you about this before, Mr Bell, about the two men and I’ve written down what you’d said here, as I recall, you said, you knew they had bad intentions?‑‑‑Yes, I did, yes.
Can you explain what you meant by that?‑‑‑You know how some - like – just say you have a little car accident or a bump with someone and normally you get out and someone says to the other person, ‘Are you all right, I’m really sorry’ and you exchange insurance details, well, sometimes you can just tell if someone gets out and they’re a bit peed off with you. You can tell they’ve got bad intentions or that sort of situation is what I’m saying, it’s – you can just tell sometimes when – I don’t know if you’ve had it yourself, but you can tell sometimes when people have got bad intentions by the way they’re staring at you. You don’t stare someone in the eye constantly going like that and looking at them like that as if you’ve got no bad intentions to them. It’s – I just knew, I could just tell and I wouldn’t have bothered about it if it wasn’t. I wouldn’t – I just would have continued ‑ ‑ ‑
Sorry, what bad intentions do you – were you attributing to them?‑‑‑Well, when I saw them holding the Bosun’s knives so I just assumed the worst. I knew they had bad intentions and you’re holding a knife, that’s not – it doesn’t take a ‑ ‑ ‑
Well, no, again you’re being a bit vague about it. You assumed the worst, what do you mean by that?‑‑‑Well, I assumed they were going to probably stab me and chuck me over the side, I mean why would you, sort of – I knew they had bad intentions, they’re holding knives, so it doesn’t take – you know, it doesn’t take much to work out what their intentions were and that was what I assumed that that was what they were going to do, that’s why I did what I did.
Why do you think they would have done that?‑‑‑There’d been a lot of stuff, a lot of things going on that – I could talk about this all day. There’s – I had problems with my ankle and I had to – the whole ship – when you get pallets – heaps of pallets of stores rocked up at the side of the ship – the delivery, you’ve got to get them all in really quick because it’s hot, and you don’t want things like butter and milk and cream, meat especially, to spoil, so part of ship’s standing orders, you go up to the gangway and you ask the XO and he goes over the pipes and says, all ship’s hands to stores, and everyone makes a chain on the wharf and you pass them down and I – to me at the end and I stack them all in the freezers and the fridges. It’s too much for one person for all them people, you just can’t do it, and when I had problems – I used to do it myself, but then when I had – started getting problems with my ankle I – I had to invoke the ship’s standing orders and I asked the XO, I said, ‘Look, I’ve got problems with my ankle, I’ve got to – can you put over the pipes for the guys to help me do the stores?’ and people like … and … and a few other blokes, they go, ‘Yeah, no worries, not a problem’. But these people like … and … and all his boys that are in his rate that are sitting down the mess watching pornos all the time, doing eff-all, them sort of blokes get pissed off because they’ve got to go up and actually break a sweat and do something and they get pissed off and it all escalated from them getting pissed off, ‘Oh we’ve got to effing do this, oh I don’t want to do that’. They just want to sit on their arse and watch pornos down the mess and that’s what they do. They’re running 24-7, excuse me. That’s what they do, that’s what it’s like. I don’t know what it’s like now, but that’s what it was like and they didn’t want to get off their arses and help and I had no choice, I had a sore ankle, I needed the help and that’s when they started getting peed off and it all sort of escalated from there. It just kept getting worse and worse. Not just then, there were other things, you know, it just – it just kept getting worse. But that’s originally what started them off, because they didn’t want to help. They don’t want to break a sweat, because they just want to sit around and do nothing. Because these of guys, they’re techo’s, they don’t have to do anything until something breaks down, because they’ve got nothing to do, except for check their pressure dials and this, that and the next, walk around filling a few things in. But unless something breaks down they’ve got no work, see, and they just want to sit in the mess, like I said, and watch films.
Might they have been intending just to frighten you?‑‑‑Well, if they did that was a really good job, because that’s exactly what they did, yes, possibly. I mean they certainly frightened me, but I assumed more than that. I might have been wrong to assume that, but at the time that’s what I felt there and then at that point, that was what I felt and that’s what I assumed and that’s what happened and I did what I did. But I can’t speak for what they would and wouldn’t do. I just found it obvious that that was what was going on, so.
Well, you would have to agree that the background you’ve just given, to actually kill you would have been a bit of an overreaction, wouldn’t it, to say the least?‑‑‑It’s happened before. Leading Seamen … disappeared over the side. I knew him from recruit school. He disappeared over the side on HMS (sic) Darwin, they’ve never even found his body. There’s a standard thing in the navy, if someone gets peed off with someone, there’s a joke that they all say, ‘Wait till he’s up on the uppers and there’s no one around and chuck him over the side’. The boat’s still going, lots of sharks, in the middle of nowhere. The noise of the engine you can’t hear anyone shouting or screaming anyway, so it’s – so it was a common joke that people used to say. They’d say, ‘Oh chuck him over the side’, and things like that. So that’s what I assumed was going to happen, I might have been wrong, but.
You said it was a joke?‑‑‑Yes, but once – it was a joke that that’s what they’d say, but once I knew that we’d had differences and that, the way that it happened and the way they were standing there, I thought, well, this is actually going to come true. This is what they – this is what they want. So, yes, that’s why I did what I did. I might have assumed it wrong, but I don’t think so. I don’t think I did at all.”
Additional Evidence
Statement of the applicant dated 2 January 2008
42. Included amongst the documents produced under summons to the Tribunal by Ms Elizabeth Sachse (Exhibit R7) was the following statement signed by the applicant and dated 2 January 2008:
“ HMAS GERALDTON INCIDENTS OF MENTAL & VERBAL ABUSE
1.Due to my current ankle status, I had been placed on restricted duties ie no sport, no heavy lifting etc.
2.Due to the amount of heavy lifting involving stores by myself I had increased ankle swelling and throbbing sensations.
3.The entire ships crew of approximately 26, except senior sailors and officers have a responsibility to work together as a team to get the stores below decks asap (before anything spoils).
4.I used to perform most of the stores work alone or with the regular help of another two sailors named … and … who were mates. Things also turned a bit strange on a practice shoot. I was allowed to fire off 50 rounds on the 50 calibre machine gun. Normally I would never go near this gun. We were shooting at a flare on a parachute slowly descending and I made the gun operator, a bosuns mate look stupid by accurate shooting to the point where the XO asked who was shooting as the anti flash head cover was hiding my identity. When told it was the chefo (me) he burst out laughing at the gun operator. This did not go down well with PO … in charge of all bosuns mates as he is their trainer.
5.Once placed on restricted duties, I required the help of the rest of the crew to help with stores. This reluctantly happened on several occasions. There were incidents where I used to felt (sic) threatened for my life usually on the journeys to the potato locker on the upper decks. Mainly a fear of being thrown, or stabbed then thrown overboard.
6.Then things started disappearing around the galley area, my primary work station. My personally engraved chef knives also disappeared, presumed thrown overboard as a thorough search of the ship was unable to locate them. Value approx $2500. I personally believe PO …, Marine Technician was responsible due to the smiling glow upon his face when I announced my knives were missing. There were other smaller not as nasty incidents involving seafood, tampering with my bunk and bedding, and throwing potatoes and other stores overboard to try and make it look like I hadn’t ordered it.
7.Certain kitchen appliances happened to break down at convenient times so the ship would have to pull into the nearest port, usually Broome. The crew members were then given leave with certain expenses claiming they did not know how to fix the appliances, forcing civilian contractors to fix the problem, while the crew members partied on.
8.I was never directly threatened but words similar to that effect were mentioned to me by … and …, both bosuns mates. There were many occasions where I feared for my life going on to the upper decks, especially the spud locker.
9.… also advised me to stick close to him on the upper decks in case some of the boys try anything. Petty Officer … and Petty Officer … were influencing their own boys to say and do certain things to intimidate and underlying threats towards me.
10.Nasty comments, snide remarks were made every day, this eventually wore me down, I lost a lot of weight and a civilian doctor at Broome hospital gave me seven days off work. The Geraldton were supposed to fly me straight back to Fleet Base West, instead the naval police coxswain managed to somehow convince the CO not to do this.
11.I then gathered all of my civilian belongings and left the ship by first calling a taxi to pick me up.
12.I then caught the bus for $232 nearly 3 days 2250 kms back to Perth where my mother then picked me up. It was my mother that convinced me two days later to return to the Navy, I was reluctant.
13.They then charged me with being AWOL. I received 2 weeks kept on board HMAS Stirling and fined around $1000.
14.They also charged me with not properly attending my special sea duty posting and leaving the oven on in the galley expecting me to be in two places at the same time.
15.Something changed in my head I believe on the Geraldton, possibly some kind of breakdown. I changed from being a happy outgoing person to an angry sometimes violent abusive personality that just isn’t me.
16.I then received a posting to HMAS Cerberus in Melbourne where this whole saga seemed to follow me around due to the naval grapevine, this led to further mistreatment.
17.Constant niggling harassment from a lieutenant … who just happened to be best mates with the civilian psychologist, going to lunch and down the gym together. Both these men approved my Retention Not in The Interest Of The Royal Australian Navy.
18.I was then discharged with torn ankle ligaments and mental instability problems ever since I will never work or live a normal life ever again.
19.The happy cheery guy I was when I boarded the Geraldton left that ship a mess and I have never been able to get him back, it’s been so long I don’t even remember who I was when I was happy. The primary offenders names are PO … and PO …, they are the ones who broke me.
20.On several occasions I was charged with leaving the power on in the galley and they expected me to be at my special sea duty position at the same time I am supposed to be cooking lunch or dinner.
21.Before joining the navy I worked full time for nearly 5 years without any problems with other people I even worked in Scotland aged 19 years, again no problems. I join the RAN and I leave with a destroyed right ankle and mentally broken from abuse and threats.
22.I will now have to take four different medications for the rest of my life. I believe that without these medications this leaves me with anger and self control problems that even landed me in the district court in Rockingham in 2005. I do not see myself ever being able to work within the community due to my severe anxiety problems, and the restrictions of driving and operating machinery due to medications I need. Severe ankle problems also limits working capacity.” (sic)
Administration of Detailed Assessment of Posttraumatic Stress (DAPS) report of Ms Dale Kent
43. The abovementioned report, dated 25 February 2009, was tendered in evidence by the applicant (Exhibit A2). That report states as follows:
“ As requested by Mr Bell’s treating Psychologist and Psychiatrist, Ms Elizabeth Sachse (Clinical Psychologist Registrar) and Dr Lance Risbey (Consultant Psychiatrist), I administered that DAPS on Mr Bell on 19th February 2009.
Once explained to Mr Bell that the test required reading, he requested that I read the questions to him out-loud. This request was supported by Ms Sachse and Dr Risbey as they believe it to be a symptom of his ‘traumatic stress’ that he finds comprehending things that he reads difficult. His poor concentration means that he is unable to transfer his concentration skills from reading the question, to answering the question.
The test was completed within 30 minutes.
Mr Bell presented as anxious throughout the assessment. He appeared ‘fidgety’ and hyperaroused. He did not however show any signs of distress or panic. When asked upon completion of the assessment how he was feeling, Mr Bell said he was fine, however proceeded to ‘chat’ for a period of about 15 minutes; of which he was speaking quickly, however coherently, and somewhat intensely, suggesting high levels of anxiety.
Mr Bell is a 34 year old male who reported to have experienced a multiple number of traumatic events where he was hurt, or afraid he would be seriously hurt or killed. Mr Bell admitted to experiencing six different scenarios (within the ‘normal’ level of exposure to trauma), the one that affects him the most now is as follows:
· Someone shooting or stabbing you, or trying to shoot or stab you, when you were seriously hurt or were afraid you would be hurt or killed?
…
Results:
Of these multiple exposures to traumatic experiences; Mr Bell has listed his ‘fear of being stabbed by two Ls marine technicians onboard HMAS GERALTON (sic)’ as that which ‘bothers’ him the most at present. The number of Relative Trauma Exposure (RTE) experienced by Mr Bell is within the ‘normal’ range of exposure the relative traumas (T-score 60). This ‘normal’ RTE score suggests that there are no signs of complex trauma as a result of ‘demographic, environmental, or lifestyle variables’, and therefore single experience may be made accountable for the following symptoms and impairment scores.
During the trauma nominated as being the most bothering, whilst fearing for his life, Mr Bell had feelings of extreme Fear, Helplessness, Horror, Disgust, Upset, and thought he Might Die; and he felt ‘quite a bit’ guilt (sic). Throughout the traumatic event Mr Bell experienced a ‘normal’ level (although on the high side) of Peritraumatic Dissociation (PDIS). This measures the level to which one dissociated during the traumatic event. Mr Bell felt ‘Very Much’ as though time was changing speed and he was ‘quite a bit’ unaware of what was going on around him. He stated that at no point did he ‘space out’, his ‘mind go blank’, or did his body change in ‘shape or size’. He did however admit to things feeling a little ‘unreal or strange’.
I did not find the psychomotor impairment suggestive of the specific major mood disorder of melancholia, but he did display the motoric agitation of a major anxiety disorder.
Eye contact and rapport were established early in the interview and sustained. Mr Bell’s eyes, facial musculature and gestures were all expressive without overt signs of clinical depression in the present.
Affective responses (by which I mean the overt outward emotional expression at interview) were reactive but very anxious to the interview, and mood (by which I mean the patient’s pervasive emotional tone of speech at interview) was anxious and dysphoric. At interview, he was sweating profusely.
Speech was normal in rate, form and syntax. The content of speech was appropriate to the interview, without true depressive ideation, true obsessional intrusions, suicidal ideation, or evidence of psychotic experience. Mr Bell described an array of anxiety symptoms including reported posttraumatic phenomena.
The sensorium was clear, and a coherent account of the circumstances was provided at interview to suggest intact general cognition.
OPINION
Summary and Assessment
In answer to your specific questions:
QUESTIONS
51.1Please take a full history from Mr Bell, and report to us on his psychiatric conditions.
In addition, please consider and answer these questions as a matter of practical judgment in view of your expertise;
51.1.1 your diagnosis of Mr Bell’s present condition including:
- a description of any psychological/psychiatric symptoms and disabilities displayed by him;
- the nature and extent of that condition.
- your opinion as to the likely onset of the condition; and your opinion as to whether a diagnosis of PTSD is appropriate;
Mr Bell’s psychological symptoms are consistent with the presence of a recognised psychiatric condition.
The nature of that condition, assuming the veracity of his claims is of either –
1. Posttraumatic Stress Disorder or –
2. Generalised Anxiety Disorder and Panic Disorder.
The diagnostic criteria for these conditions are described in Annexure B1 and B2.
Mr Bell’s claim is that the onset of this condition occurred in the context of his naval service whilst on the HMAS Geraldton in 1998.
The diagnosis of Posttraumatic Stress Disorder is only appropriate if the evidence supports his claims of an extreme stressor in the form and fashion that he described it to have occurred.
Otherwise, the appropriate diagnosis is of Generalised Anxiety Disorder and Panic Disorder.
51.2If, in your opinion, Mr Bell does suffer from a psychological/psychiatric condition/s, your opinion as to the causal relationship between the condition/s and:
- the incidents of alleged bullying and harassment during Mr Bell’s service on HMAS Geraldton;
- Mr Bell’s childhood trauma and any pre-existing psychological/psychiatric condition/s;
- Mr Bell’s drug use;
- Mr Bell’s ankle condition, which was injured during his service;
- and any other relevant factor/matter;
In my opinion, Mr Bell does suffer from a psychiatric condition.
A causal relationship between the condition and the incidents of alleged bullying and harassment during Mr Bell’s service on HMAS Geraldton may only be assumed on the basis that his descriptions are correct.
Otherwise, his psychiatric condition is of a Generalised Anxiety Disorder with Panic Disorder caused by constitutional matters including childhood trauma and pre-existing factors.
The previous history of drug use is also an index of his psychological vulnerability as part of his general constitutional vulnerability.
The ankle condition reportedly led him to use marijuana, but this may only be accepted as true if the facts support his claim.
Otherwise, the ankle condition certainly contributed to some of his psychological symptoms.
51.3If you consider that the alleged incidents of bullying and harassment on HMAS Geraldton during Mr Bell’s service contributed to his condition/s, your opinion as to:
- the level of contribution attributable to those events;
- whether the events ‘materially’ contributed to Mr Bell’s condition/s; and
- the level of contribution attributable to any other relevant events (please specify the level of contribution for each relevant event);
The contribution from alleged incidents of bullying and harassment on HMAS Geraldton may only be argued to have contributed materially to a Posttraumatic Stress Disorder if the evidence supports that such perceptions exist as fact.
Otherwise, any psychiatric condition is principally a product of constitutional matters including childhood trauma.
I regret that it is difficult to attribute causation of any psychiatric disorder by a specific factor with precision in the absence of a Posttraumatic Stress Disorder, because that is the nature of most psychiatric disorders.
51.4if you conclude that alleged events on HMAS Geraldton ‘materially’ contributed to Mr Bell’s condition/s:
51.4.1your opinion as to whether the condition/s require medical or psychiatric treatment in the future, and if yes, please specify:
- the nature of the treatment/medication required or recommended;
- the likely frequency such treatment/medication and their effectiveness;
And
-the length of time he will require such treatment/medication;
51.4.2your opinion as to whether the condition/s have had and are likely to have an impact on Mr Bell’s future ability to work; and
51.5 any other matters you consider relevant.
If you require any other information or have any queries, please contact the writer.
The alleged events of (sic) HMAS Geraldton may only be argued to have materially contributed to a Posttraumatic Stress Disorder if the evidence supports that such events occurred.
However, regardless of the precise diagnosis chosen, Mr Bell does meet criteria for a recognised psychiatric condition which manifests itself principally as anxiety symptoms and which requires further treatment –
1. At least monthly visits to a Consultant Psychiatrist for the next 5 years.
2.The prescription of psychotropic medications for a minimum of 5 years.
It can be expected that improvement will continue unless a further major life event intervenes, leading to an aggravation of symptoms.
Mr Bell is presently unfit for work on the basis of his symptoms.
On the basis of expected progress, he is likely to remain unfit for work totally for the next 2 years.
It is likely, however, that sufficient recovery will occur to enable return to full-time employment within 5 years, even if he does have residual symptoms.
Please also see my Conclusion – which follows –
CONCLUSION
1.The psychiatric history and examination shows that Mr Bell claims a Posttraumatic Stress Disorder as caused by threats and intimidation, bastardisation and bullying whilst posted to HMAS Geraldton in 1998, consistent with the diagnosis conferred by Dr Lance Risbey, Mr Bell’s treating Consultant Psychiatrist.
2.However, the existence of a Posttraumatic Stress Disorder (PTSD) must assume that there is sufficient evidence to support that the events claimed did occur. In the absence of such evidence, then I would not be able to produce a diagnosis of a Posttraumatic Stress Disorder and rather, would find a diagnosis of Generalised Anxiety Disorder and Panic Disorder without the precipitating events that have said (sic) to have caused the onset of PTSD.
3.In other words, in the absence of evidence to support Mr Bell’s assertions, I would not be able to find a diagnosis of a Posttraumatic Stress Disorder as a product of those assertions.
4.I note with particularity, the written evidence supporting the relevance of other factors including Mr Bell’s ankle condition and personality issues, as well as difficulties in interpersonal relationships culminating in his forensic history and discharge from the service, as exemplified by his conviction of a violent assault in the Frankston Magistrates Court in about 2005.
5.However, Mr Bell denied a pre-existing history of Attention Deficit Hyperactivity Disorder (ADHD) or any other psychiatric history.
6.I am not in any doubt that Mr Bell suffers from some form of anxiety disorder, regardless of whether it is called a Posttraumatic Stress Disorder, Generalised Anxiety Disorder or Panic Disorder, nor am I in any doubt of his need for treatment. Certainly, the objective signs at interview, including his profuse sweating, were clearly visible and outside the bounds of normal mental function. It would be difficult, if not impossible, to fake or consciously exaggerate this. Certainly, the manifestations of that anxiety can be understood if one considers the report form Dr Loke, Consultant Psychiatrist, dated the 22nd September 2001 in which he noted that Mr Bell was –
‘A victim of violence from his alcoholic father. He also witnessed his father’s violence towards his mother’.
– All of this is complicated by a history of marijuana dependence, which is consistent with the report by Dr Risbey dated the 23rd October, 2007 in which he describes Mr Bell suffering from –
‘Severe generalised anxiety disorder, with features consistent with probable PTSD’.
7.In other words, in my opinion, Mr Bell does suffer from a chronic recognised psychiatric condition, regardless of what labels or diagnostic terms are used to describe it.
However, I can only find a diagnosis of Posttraumatic Stress Disorder if I assume the veracity of Mr Bell’s claims to support his assertion that he was a victim of bullying on board HMAS Geraldton. Customarily, in a medicolegal assessment, this would require contemporaneous medical and psychological records from the time of alleged bullying recording such remarks and complaints, and corroborating the version of events provided in support of the claimant’s claim.
8.The other problem in this case is that the contemporaneous records available produce a history of longstanding difficulties culminating in significant anger dyscontrol and violence, as well as a history of marijuana abuse, all of which calls into question Mr Bell’s credibility, and also signifies the presence of pre-existing vulnerability which can explain the onset of a variety of psychiatric illnesses or ailments.
9.Thus, clinically, whilst I find Mr Bell to suffer from a recognisable psychiatric condition, and whilst it appears, on the face of the symptoms, and on the basis of his claims, to present as a Posttraumatic Stress Disorder materially contributed to by his perception of events occurring during the course of his employment, the veracity of his claims requires that the events actually occurred.
10.Therefore, if there is no objective evidence to show that the events alleged by Mr Bell actually occurred, then in such circumstances I would not be able to find sufficient evidence, on the balance of probabilities, that Mr Bell suffers from a Posttraumatic Stress Disorder, and/or that it arose out of his employment or was materially contributed by (sic) his naval service. In such circumstances, I would be compelled to find that the present psychiatric condition represents a Generalised Anxiety Disorder with concomitant Panic Disorder which is arguably not a product of his naval service and simply a product of constitutional matters including childhood trauma, previous significant substance abuse and other matters that have culminated in, and are also evidenced by, his forensic history.
11.Conversely, should there be sufficient evidence to establish that Mr Bell suffered an extreme stressor in the context of his naval service consistent with his claims, then that would lead me to find a diagnosis of Posttraumatic Stress Disorder as a product of his naval service.
However, it is correct that, in the absence of sufficient evidence to establish Mr Bell suffered an extreme stressor, the diagnosis of Posttraumatic Stress Disorder is not available.
…” (original emphasis)
Summonsed documents
47. The Tribunal has also had regard to the documents produced under summons by Dr Price (Exhibit R3), Dr Proud (Exhibit R4), Professor Kosky (Exhibit R5), Dr Risbey (Exhibit R6) and Ms Sachse (Exhibit R7) which were tendered in evidence by the respondent.
Analysis
Is the applicant presently suffering from, or has he at any material time suffered from, PTSD?
48. The applicant’s case is that he suffers from PTSD and that he contracted that condition as a result of various incidents which he claimed to have experienced in the course of his service on board HMAS Geraldton in 1998, as described in his abovementioned written statements (see paragraphs 39, 40 and 42 above) – especially the incident involving 2 sailors holding bosun’s knives, described more fully in his oral evidence (see paragraph 41 above).
49. The Tribunal notes that the applicant served on board HMAS Geraldton from November 1997 to July 1998 (S68).
50. Since his discharge from the RAN in January 2000 the applicant has been examined by numerous psychiatrists, including Dr Law (January 2002), Dr Proud (April 2002), Professor Kosky (October 2002–June 2005), Dr Risbey (February 2007 to date) and Dr Terace (July 2009). The applicant also received “focused psychological therapy” over 18 sessions in the period October 2007–May 2008 from Ms Elizabeth Sachse, Clinical Psychologist Registrar, TASSC, following a referral by Dr Risbey (who also practises at TASSC) on 23 October 2007 (Exhibit R7).
51. The abovementioned psychiatrists have diagnosed the applicant’s condition as follows:
·Dr Law – 1. “ adjustment disorder with anxiety, irritability, anger reactions and obsessive-compulsive symptoms”;
2.“ marijuana associated ambivalence, motivation, volition, concentration difficulties and emotional reactivity”;
3.“ anger dyscontrol episodes”;
4.“ possible ADHD”;
·Dr Proud – 1. “ generalised anxiety disorder, panic attacks and agoraphobia”;
2. “ paranoid”;
3. “ probably … ADHD”;
4. “ marijuana dependency”;
·Professor Kosky – 1. “ generalised anxiety disorder with panic attacks”;
2. “ attention deficit hyperactivity disorder”;
3. “ substance use (marijuana)”;
·Dr Risbey – 1. “ post-traumatic stress disorder”;
2. “ generalised anxiety disorder”;
3. “ panic attacks”;
4.“ substance abuse/dependency (in remission)”;
·Dr Terace – 1. “ generalised anxiety disorder and panic disorder”;
2.“ posttraumatic stress disorder” (subject to the proviso that there must be objective evidence that the applicant experienced a sufficiently extreme stressor that would support that diagnosis).
The Tribunal notes that it appears that the applicant did not provide a detailed history of the alleged incidents on board HMAS Geraldton (as described in his abovementioned written statement and oral evidence) to any medical practitioners or psychologists who examined or treated him until December 2007 when he provided such a history to Ms Elizabeth Sachse (as set out in her report of 19 December 2007 – see paragraph 29 above).
52. As appears from the abovementioned summary of psychiatric diagnoses, the only psychiatrist who, on the evidence before the Tribunal, has diagnosed the applicant as suffering from PTSD is Dr Risbey. That diagnosis, the Tribunal notes, has been supported by Ms Sachse, Clinical Psychologist Registrar at TASSC (where Dr Risbey also practises). The validity of that diagnosis, however, depends on the truth and accuracy of the applicant’s relevant history as provided to Dr Risbey and Ms Sachse by the applicant – a proposition implicitly acknowledged by Dr Terace in his report of 9 July 2009 (see paragraph 46 above).
53. The applicant has a serious psychiatric history since at least 1999 (as detailed above), including a diagnosis of marijuana (cannabis) dependency first made by Dr Proud in April 2002 – see paragraph 18 above). As regards his use of cannabis, the applicant said, in his oral evidence, that he stopped using cannabis on 17 February 2007. Similarly Dr Terace, in his report of 9 July 2009 (para 10.3), noted, in his summary of the applicant’s social history, that “(h)e last consumed cannabis 17/2/07” (see paragraph 46 above). The Tribunal notes, however, that Ms Sachse, in her clinical notes of 19 December 2007, recorded that the applicant reported that he was “still smoking pot to decrease anxiety plus medications”, although she stated, in her clinical notes of 30 April 2008, that the applicant was “not smoking pot (4 months)” (part of Exhibit R7). The Tribunal notes, furthermore, that Dr Risbey, in his clinical notes of 23 July 2008, recorded that the applicant “stopped smoking pot 17/2/08” (part of Exhibit R6).
54. Having regard to the applicant’s psychiatric history, and his apparent regular and substantial use of cannabis from 1997 until at least 17 February 2008, the Tribunal does not regard him as a reliable historian, nor does it regard his evidence as reliable. Like Dr Terace, the Tribunal is not prepared to accept the applicant’s account of the traumatic events which he claims to have experienced on board HMAS Geraldton in 1998 – including, in particular, the incident involving 2 sailors approaching him holding bosun’s knives – in the absence of credible independent or objective evidence which corroborates or supports his account of those events.
55. The only evidence before the Tribunal which provides some corroboration or support of the applicant’s evidence that he was subjected to bullying and threatening behaviour by crew members on board HMAS Geraldton in 1998 is the statutory declaration of his mother, Elaine Hogan, dated 23 March 2009 (Exhibit A1 – see paragraph 44 above). The contents of that statutory declaration, however, are largely based on statements made to Ms Hogan by the applicant regarding that “bullying and threatening behaviour” and cannot, therefore, be regarded as objective or independent. Furthermore – and, in the Tribunal’s opinion, most significantly – Ms Hogan’s statutory declaration makes no specific reference to the abovementioned alleged incident involving the 2 sailors approaching the applicant holding bosun’s knives.
56. In the Tribunal’s opinion, that alleged incident is the only incident, amongst the various incidents on board HMAS Geraldton in 1998 referred to by the applicant in his evidence, which, if it occurred, might arguably constitute a traumatic event of the kind required for a proper diagnosis of PTSD in accordance with the diagnostic criteria in respect of PTSD set out in “DSM-IV” (as cited by Dr Risbey – see S38, p 97; T5, p 28). The Tribunal, however, is not satisfied, having regard to the considerations referred to in paragraphs 53-55 above, that that incident – namely, the incident involving the 2 sailors approaching the applicant holding bosun’s knives, as described by the applicant in his evidence – did in fact occur. The Tribunal is, accordingly, not satisfied that a diagnosis of PTSD in the applicant’s case based on that alleged incident – as made by Dr Risbey and supported by Ms Sachse – is valid.
57. The Tribunal would add that, even if the alleged incident involving the 2 sailors approaching the applicant holding bosun’s knives, as described by the applicant in his evidence and as recorded by Ms Sachse in her clinical notes and in her report of 19 December 2007, did in fact occur, the Tribunal has serious reservations as to whether that incident would constitute a traumatic event of the kind required for a proper diagnosis of PTSD in accordance with the relevant diagnostic criteria set out in “DSM-IV” (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed)). Those diagnostic criteria are set out in Annexure B1 to Dr Terace’s report of 9 July 2009 (Exhibit R2). Criterion A of those diagnostic criteria is as follows:
“A. The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person’s response involved intense fear, helplessness, or horror. …”
58. In Stoddart v Repatriation Commission (2003) 74 ALD 366 the Federal Court of Australia (Mansfield J) considered the meaning of the phrase “experiencing a severe stressor” in, inter alia, a Statement of Principles (“SoP”) concerning PTSD for the purposes of the Veterans’ Entitlements Act 1986 (Cth). In the relevant SoP the definition of PTSD was expressed to be “derived from DSM - IV” and the definition of the phrase “experiencing a severe stressor” was in terms very similar to criterion A of the diagnostic criteria in respect of PTSD set out in DSM - IV. Mansfield J said:
“ [40] There is no doubt that there is a subjective element required to ‘experience’ a severe stressor. …
…
[42] The definition of ‘experiencing a severe stressor’ relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity. …
…
[50] … The adjectival clause ‘that involved actual or threat of death or serious injury …’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. …
...”
His Honour then referred to the “common meaning of ‘threat’”, and continued:
“ [52] … It is defined in The Macquarie Concise Dictionary, 2nd ed, p 1050, as:
… an indication of probable evil to come; something that gives indication of causing evil or harm.
The other meaning given relates to the communication of an intention to inflict harm. In my view, it is in the quoted sense that the word ‘threat’ appears in the definition of ‘experiencing a severe stressor’ in each of the SoPs. The adoption of that meaning accommodates the type of circumstance referred to in the preceding paragraph, that is a state of affairs which could reasonably be understood by a normal person in the position of the applicant as exposing that person (or others) to a detriment. The SoPs require the detriment to be death or serious injury or to physical integrity. …
…
[55] In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
Mansfield J’s reasoning was subsequently approved by the Full Court of the Federal Court of Australia: see Woodward v Repatriation Commission (2003) 131 FCR 473 pat 498 – 499; Repatriation Commission v Stoddart (2003) 134 FCR 392.
59. Although Mansfield J in Stoddart was considering the interpretation of words and phrases in a legislative instrument, the Tribunal is nevertheless of the opinion that his reasoning provides useful guidance as to the proper understanding and application of criterion A of the diagnostic criteria in respect of PTSD set out in DSM - IV.
60. As regards the incident involving the 2 sailors approaching the applicant holding bosun’s knives, as described by the applicant, the Tribunal notes:
· the incident occurred during daylight;
· no words were spoken;
· no physical contact was made;
· there was no attempt made by either of the 2 sailors to inflict physical harm on the applicant;
· the incident was preceded by circumstances in which the applicant had requested the Executive Officer to provide him with assistance from other crew members in moving the stores, resulting in those crew members (including the 2 sailors in question) bearing ill will and resentment towards him which was demonstrated by bullying and intimidating behaviour on the part of those crew members and various incidents including incidents in which his “personally engraved” chef knives “disappeared”, various items in the stores “went missing”, and various kitchen appliances (including an oven) were sabotaged, and the safety pin in the hatch of the potato locker (from which he was required to obtain potatoes each day) was removed;
· the applicant was aware of a “standard joke” in the Navy that a crew member with whom other crew members were “peed off” could be thrown overboard from the upper deck when no-one else was around, and he was aware that a particular sailor (whom he knew from recruit school) had “disappeared over the side” on HMAS Darwin and his body had never been found.
61. Having regard to the abovementioned considerations, the Tribunal seriously doubts that, even if the applicant’s description of the incident involving the 2 sailors approaching him holding bosun’s knives is true and correct and the applicant did at that time subjectively perceive that he was threatened with death or serious injury, that incident, “judged objectively from the point of view of a reasonable person in the position of and with the knowledge of” the applicant, was capable of conveying the threat of death or serious injury: Stoddart (ALD) at [55]; (FCR) at 399–400. Accordingly, the Tribunal has serious reservations as to whether that incident (as described by the applicant) involved his having been “exposed to a traumatic event in which … [he] experienced … or was confronted with an event … that involved actual or threatened death or serious injury or a threat to [his] physical integrity”, as required by criterion A(1) of the diagnostic criteria in respect of PTSD set out in DSM - IV.
Conclusion
62. Having regard to the abovementioned considerations – including, in particular, the consideration referred to in paragraph 56 above – the Tribunal is not satisfied, on the balance of probabilities, that the applicant is presently suffering from, or has at any material time suffered from, PTSD. The question whether he is entitled to compensation under the SRC Act in respect of that condition does not, therefore, arise.
Is the applicant presently suffering from, or has he at any material time suffered from, a mental ailment other than PTSD?
63. The Tribunal is satisfied, having regard to the psychiatric evidence summarised in paragraph 51 above, that the applicant presently suffers from, and has at all material times suffered from, generalised anxiety disorder and panic attacks. The Tribunal is, furthermore, satisfied that the applicant has at all material times also suffered from substance (cannabis) abuse but that that condition is presently in remission.
The applicant’s generalised anxiety disorder and panic attacks condition
64. The Tribunal notes that:
· on 18 February 2003 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of “generalised anxiety disorder and panic attacks” as a sequela to his compensable right ankle injury (see paragraph 21 above);
· the respondent subsequently paid lump sum compensation to the applicant for permanent impairment resulting from each of his compensable injuries, namely, “antero-lateral instability right ankle” and “generalised anxiety disorder and panic attacks” (see paragraphs 24 and 32 above).
65. Because the Tribunal does not regard the applicant’s evidence regarding the various incidents to which he claims to have been subjected in the course of his RAN service on HMAS Geraldton as reliable (see paragraph 54 above), the Tribunal is not satisfied that the applicant’s generalised anxiety disorder and panic attacks condition was contributed to in a material degree by, or was aggravated by, that service. The Tribunal notes and accepts, however, that that condition resulted from the applicant’s compensable right ankle injury sustained on 4 May 1997 (as determined by the respondent on 18 February 2003), and is compensable under the SRC Act on that basis.
The applicant’s substance (cannabis) abuse (in remission) condition
66. The applicant has not claimed compensation under the SRC Act in respect of his substance (cannabis) abuse condition on the basis that it is causally related to his RAN service. Accordingly, the Tribunal makes no finding in relation to that matter.
Conclusion
67. Having regard to the foregoing analysis, the Tribunal concludes that the respondent is not liable under the SRC Act to pay compensation to the applicant pursuant to his claim for compensation lodged on 12 June 2008 (T4).
Decision
68. For the above reasons the Tribunal affirms the decision under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 20 November 2009
Date of Decision 17 December 2009
Representative of the Applicant Self-represented
Counsel for the Respondent Mr S McLeod
Solicitor for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Breach of Contract
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Mental Injury
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Standing
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