Duncan and Comcare
[2004] AATA 666
•28 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 666
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/144
GENERAL ADMINISTRATIVE DIVISION ) Re KENNETH DUNCAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member,
Dr M E C Thorpe, MemberDate28 June 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed .
.............................................
Ms S M Bullock,
Presiding Member
WORKERS COMPENSATION – Transitional provisions – Failure to give notice – Failure to make a claim for compensation within specified period – Prejudice to the Commonwealth - Whether failures occasioned by mistake or reasonable cause - Post Traumatic Stress Disorder – Anxiety Disorder Not Otherwise Specified – 1930 Act
Safety Rehabilitation and Compensation Act 1988
Commonwealth Employees’ Compensation Act 1930
Re Wright v Commonwealth of Australia (1988) 14 ALD 567
Comcare v McGuire (1996) 68 FCR 329
REASONS FOR DECISION
28 June 2004 Ms S M Bullock, Senior Member,
Dr M E C Thorpe Member1.Mr Kenneth Duncan has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a reviewable decision made on 14 January 2003 (T21) which affirmed a determination made on 23 April 2002 (T17), that the injury from which Mr Duncan suffers, is not causally related to the nature of his service and does not render him incapacitated for work.
2.A Hearing was held in Sydney on 24 March 2003 and resumed on 16 June 2004. Mr Duncan was represented by Mr C Jackson of Counsel, and the Respondent, Comcare, was represented by Miss R Henderson of Counsel. Oral evidence was provided by Mr Duncan. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-21) and a number of exhibits, which are listed in Schedule 1 to this Decision.
issues
3.As Mr Duncan made a claim for compensation on 7 May 2001, in relation to an incident which occurred on 17 September 1969, the claim falls for initial consideration under the provisions of the Commonwealth Employees’ Compensation Act 1930. The issues in this matter are:-
(i) Whether or not the failure of Mr Duncan to comply with time limits under the Commonwealth Employees’ Compensation Act 1930 prevents him being paid compensation under the Safety, Rehabilitation and Compensation Act 1988; and if not, then,
(ii) Whether or not Mr Duncan has a psychiatric condition and if so, what is its diagnosis and is it causally related to his employment with the Citizens’ Military Force;
(iii) Whether or not Mr Duncan is entitled to compensation.
legislation
4.A determination in this matter requires the consideration of two pieces of legislation, namely:
·Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”).
·Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”).
5.Mr Duncan lodged his claim for compensation for post traumatic stress disorder on 7 May 2001, which he believes occurred during his service in the Citizens’ Military Force. Section 124 of the 1988 Act contains transitional provisions and in the relevant circumstances, an entitlement to compensation under the 1988 Act requires as a precondition, entitlement to compensation under the 1930 Act. Section 124 of the 1988 Act effectively precludes compensation being paid under the 1988 Act to an employee during the currency of the 1930 Act, where the claim does not comply with section 16 of the 1930 Act. Relevantly, subsection 124(10) of the 1988 Act states:
“
Where:
(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.”
6.Section 16 of the 1930 Act stated:
“
16(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth , and unless the claim for compensation has been made–
(a) within six months from the occurrence of the accident; or
(b) in the case of death – within six months after advice of the death has been
received by the claimant;
Provided always that–
(i) the want of or any defect or inaccuracy in the notice shall not prevent
consideration of the claim by the Commissioner if he finds that the
Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not
prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
16(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
16(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”
7.Section 10 of the 1930 Act is for compensation for diseases and as relevant stated:
“
Where:
(1)(a) an employee is suffering from any of the diseases mentioned in the first column of the Second Schedule to this Act and is thereby incapacitated from earning full wages at the work at which he was employed; or
(b) the death of an employee is caused by any of those diseases, and the disease was caused, within twelve months prior to the date of incapacity, by the employment in which the employee was engaged by the Commonwealth, the commonwealth shall, subject to this Act, be liable to pay to the employee or his dependants compensation in accordance with this Act as if the disease were a personal injury by accident within the meaning of the last preceding section.
(2) if the Commissioner is satisfied that the employee, at the time of entering the employment of the Commonwealth, wilfully and falsely represented himself as not having previously suffered from the disease, compensation shall not be payable.
(3) A claimant for compensation under this section shall, if so required, furnish the Commissioner with such information as to the names and addresses of other employers of the employee as the claimant possesses.
(4) If the disease is of such a nature as is contracted by a gradual process, the Commonwealth shall be entitled to be indemnified by any other employers (if those employers are also liable to pay compensation) who employed the employee during the period of twelve months immediately preceding the incapacity in the employment to which the disease is due, and all questions as to the right to, and amount of, any such indemnity shall in default of agreement be settled by arbitration or by action in any County Court.
(5) If the employee at the time of, or immediately before, the incapacity was employed in any process mentioned in the second column of the Second Schedule to this Act and produces a certificate from a duly qualified medical practitioner that the disease contracted is the disease or one of the diseases in the first column set opposite the description of the process, that disease shall in the absence of proof to the contrary, be deemed to have been caused by the employment in which the employee was engaged.”
8.If Mr Duncan is found by the Tribunal to comply with section 16 of the 1930 Act, then consideration must be given as to his meeting requirements under the 1988 Act. Section 4 of the 1988 Act deals with interpretation and of specific relevance to this matter as the definition of “disease” contained within subsection 4(1) of the Act which states:
“
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.”
9.Section 14 of the 1988 Act deals with compensation for injuries and section 16 of the 1988 Act deals with compensation for medical and other expenses.
background
10.Mr Duncan was born on 6 March 1946. Upon leaving High School at the age of 15, Mr Duncan worked at Woolworths for one year and then commenced an apprenticeship as a motor trimmer and achieved his trade in this area. Mr Duncan is married and has three sons.
11.Mr Duncan enlisted in the Citizens’ Military Force (Army Reserves) in 1964. He continued with the Army Reserves until he enlisted in the Army on 20 September 1970. Mr Duncan was discharged from the Army on 20 March 1974 at the rank of Sergeant and continued with the Army Reserves until 1998.
12.In 1974, after leaving the Army, Mr Duncan joined the Airport Fire Service where he remains employed on a full-time basis.
13.By Claim for Rehabilitation and Compensation dated 5 May 2001, Mr Duncan sought compensation for post traumatic stress disorder as a result of a shooting incident in 1969 (T9).
14.By Determination dated 23 April 2002, and upon reconsideration dated 14 January 2003, Mr Duncan’s claim for compensation was denied.
evidence of mr kenneth duncan
15.The incident that Mr Duncan considers as causing his mental health condition leading to his claim for compensation occurred on 17 September 1969. Mr Duncan recalls parading that day at Sydney Technical College on Harris Street Sydney from 5:30pm until 7:30pm. Mr Duncan then drove to Squadron Headquarters in Kogarah in order to complete administrative tasks. Mr Duncan stated that this drive would usually take about 40 minutes. Upon arriving at Squadron Headquarters, Mr Duncan proceeded to the Orderly Room which is one of a number of rooms situated around the permitter of the Drill Hall. At the time immediately before the incident, Mr Duncan remembers standing just inside the doorway of the Orderly Room, bending over a desk, cutting labels of staff names with a pen knife.
16.Mr Duncan recalled an unspecified troop undertaking a weapons’ lesson. Mr Duncan was aware of this type of lesson and described that an instructor would usually stand at the front of a group with a weapon. The group would form a semi-circle around the instructor. Those that did not have a weapon of their own to handle, would stand next to someone that did. Mr Duncan stated that on this particular evening, the weapon that was the subject of instruction was an “Owen Machine Carbine”, (“the gun”) which he described as a submachine gun. The lesson involved magazine filling, loading and unloading and firing this particular weapon, Mr Duncan stated. Mr Duncan advised the Tribunal that the gun could be loaded by fixing a magazine on top of the weapon which enables to gun to give continued fire. In Mr Duncan’s experience, he recalls that three types of “rounds” were used: a live round which was never intended to go off; a drill round which is a round that has no propellant and, a blank which is a plastic round that makes a lot of noise and flashes like a live round when going off, but has no projectile.
17.Mr Duncan stated that he was bending over, cutting labels and was thus not paying any particular attention to what was happening in the weapons’ lesson. Mr Duncan stated that he then heard a loud bang, and recalls being knocked backwards onto the desk behind him and then on to the floor. Mr Duncan stated that he immediately felt a pain in his head and reacted to this pain in an abusive manner because it “hurt a lot”. Mr Duncan then recalled someone saying “he’s been shot, he’s been shot”. Mr Duncan stated that he looked out to the Drill Hall and noticed the training group all standing around and there being a “commotion”. He saw one of the soldiers, Sapper Chard, on the floor, trying to crawl. Mr Duncan noted that Sapper Chard was initially on his stomach. He was subsequently rolled over onto his back and then onto his side, when Mr Duncan undid Sapper Chard’s jacket. Mr Duncan stated that he went over to the soldier, a distance of approximately 20 yards, and noticed that there was a black powder burn on the soldier’s trousers, around the groin area that was about the size of a 50 cent coin. Mr Duncan stated that he and a Medic Corporal (“the Medic”) proceeded to undo the soldier’s trousers and drop them to about two inches below the belt line over the right hip. Mr Duncan recalled seeing “a little lump” and a “small trickle of blood”. Mr Duncan noted that he had never before seen a gunshot wound. The Medic called for a “litter” and upon its arrival, Mr Duncan, the Medic and one other person went to lift the soldier onto it. Mr Duncan stated that it was at this time that they noticed blood on the soldier’s back and flipped the soldier over. Mr Duncan was confident that he saw another large wound and there was blood “running” out. Mr Duncan demonstrated for the Tribunal the location of the large wound as being in the area of the left kidney at the bottom of the rib cage. Mr Duncan told the Tribunal that:
“
Quite a bit of his intestines were hanging out…And it was bleeding, the intestines…it was bluish, it was greenish, a fair bit of blood…And I tried to push it – push it back in…it was quite warm, it was gooey, soft. I don’t know whether I was doing right or wrong, but I’d - my instinct was just to push it back in, it shouldn’t have been out.” (Transcript of Mr Duncan’s evidence, pg 9)”
18.Mr Duncan stated that he was quite sure he was not this incident with another incident that took place in the early 1990’s in which a young girl was injured when lying on a moving walkway at Sydney Airport.
19.Mr Duncan recalled having a headache at this time which persisted and noted that he was angry at himself for not showing leadership, he stated. Eventually the soldier was put onto a stretcher and taken to St George Hospital, Mr Duncan recalled. Mr Duncan told the Tribunal that he had not been trained in First Aid by the Army, but that he held a St John’s First Aid Certificate that he had completed of his own volition. He also noted that he had never previously attended an injured soldier.
20.Mr Duncan stated that later on that evening, a clerk found “the projectile”. It was also noted that a wooden window frame was split. Mr Duncan theorised about the incident, in so far as that he thought the solider that had the weapon, must have failed to take the magazine off the gun and, dropping the rounds out, kept on cocking the gun. This would have resulted in a live round going off, he said.
21.Later that night, Mr Duncan stated, he went to the Sergeant’s Mess and recalled being unable to pour beer from the bottle into a glass, and that someone else did it for him as he was shaking so much. He stated that he and some others discussed what had happened and then later on, drove home. Mr Duncan told the Tribunal that it is his belief that if he had been standing up at the time of the incident, and not bending over his desk, he would be dead. He told the Tribunal that at a later stage during the same evening, he noted that there was no blood on his head, but recalls that his head “hurt a hell of a lot”.
22.It was Mr Duncan’s evidence that during the week after the incident, he did not sleep much and recalls discussing the incident with his brother and mother. He did not consider filling out any reports of his injury and admitted to the Tribunal that he was familiar with this process. Mr Duncan told the Tribunal that upon leaving the Army Reserve in 1970, he joined the Army full time for four years and then returned to the Army Reserve. In May of 1974, Mr Duncan told the Tribunal that he joined the then Department of Civil Aviation as an Airport Fireman. He noted that his current position is of Fire Commander and that he is in charge of a crew of fire fighters including two other officers and ten fire fighters and equipment located at the Airport.
23.Another disturbing incident that Mr Duncan recalls occurring during the early 1990’s whilst working at the Airport concerned the death of a young girl. Mr Duncan stated that he received a call from the Ansett Terminal that a little girl had been cut. Mr Duncan recalled that upon entering the building, he could hear screaming from the Manager’s Office. Mr Duncan remembered the young girl lying down on a couch, wearing a pink bunny suit, white frilly socks and leather shoes. Mr Duncan recalled that the bunny suit was ripped and blood stained. Mr Duncan attended to the little girl and stated that some of the girl’s intestines were dropping down onto his fire boot and that he tried pushing her stomach back in. He tried to put his hand across the hole in her stomach and remembered that his outspread hand was not large enough to cover the cut. Mr Duncan told the Tribunal that he kept his hand there as the little girl was carried to an ambulance and placed her on a stretcher and took her to Hospital. Mr Duncan stated that he returned to the Manager’s Office and cleaned up, later returning to the fire station to complete his report. Mr Duncan recalled phoning his manager who asked him if he was all right to which Mr Duncan replied “I don’t think so”. Mr Duncan recalled drinking from a small bottle of scotch and calling his sister-in-law to speak to his niece. Mr Duncan told the Tribunal that this incident brought the incident with the soldier back to his mind and he recalled having the same sensations. Mr Duncan noted that in the instance with the girl, his “professionalism took over”, but recalled that he was “inadequate” in terms of being in control during the incident with the soldier.
24.Mr Duncan noted that he still keeps in touch with a number of his friends from his unit and noted that he has about half a dozen close friends that he sees “more often than not”. Mr Duncan also told the Tribunal that just before Christmas in 1999, a close friend of his that served with him in the Army passed away. Mr Duncan recalled that he “basically buckled at the knees” upon hearing this news and that he “went to pieces”. Mr Duncan recalled that at this friend’s funeral, he could not let go of the poppy that he went to place on his friend’s coffin and that someone had to pull him away. It was at the wake after the funeral that Mr Duncan stated that he was advised by a member of Blacktown RSL Sub Branch to see a RSL Pension Officer about receiving counselling. Mr Duncan advised the Tribunal that this was the first time that he discovered he was entitled to assistance, previous to this; Mr Duncan was of the opinion that such assistance was only available to those that had served at War.
25.In 1999, Mr Duncan stated that upon seeing a film called “Day of the Roses” about the Granville Train Disaster, he “just started crying” and went to see Dr G. J Keighery, General Practitioner, two days later and told him about this particular incident and noted some of the symptoms he had been suffering from for a “number of years”. Such symptoms included being “in and out of bed…eight or nine times a night”; and waking up “with a start”. Mr Duncan recalled that such behaviour was “spasmodic” as it had been going on for a long time but not every night. Mr Duncan told the Tribunal that these symptoms worsened in 1999. Mr Duncan also recalled receiving medication from Dr Keighery to assist him with sleeping, but that he was on this medication for a couple of weeks only and could not recall what the medication was called.
26.Mr Duncan stated that it was Dr Keighery who suggested he obtain some counselling available at his current place of work, but had not provided him with a referral and has never suggested that he see a psychiatrist. Early in his evidence, Mr Duncan stated that following the incident with the little girl at Sydney Airport, Mr Duncan was visited by a staff counsellor, Ms Van der Pohl, in response to an email he had sent her requesting help. Mr Duncan stated that he had done this because he noticed how he was acting towards his family. He noticed that he was short tempered; would “go off at the deep end over nothing”; was unable to sleep and “muddled in my head”. Mr Duncan told the Tribunal that it was brought to his attention by his wife in the late 1990’s. He stated that the staff counsellor told him that he had post traumatic stress disorder and recommended he see a counsellor at Corporate Health Services, Julie Preston. Later in evidence, Mr Duncan stated that Dr Keighery suggested he see a counsellor at work, but then on reflection thought that he himself had organised to see the work counsellor. This was some years after the incident with the little girl, Mr Duncan explained to the Tribunal. Mr Duncan recalled having a long “one-off” five hour counselling session with Ms Van der Pohl. It was possible that before that time his General Practitioner may have diagnosed depression but Mr Duncan was not sure. Mr Duncan subsequently attended counselling with Ms Preston once per week on four or five occasions, for about an hour each session. Mr Duncan stated that the counselling “could have possibly helped at times” on a short term basis, but he did not “really understand what that counselling is supposed to do”. For example, Mr Duncan told the Tribunal that he was told to put an elastic band on his wrist and flick it when he had the flashbacks, he stated that he used it about four or five times and then left the elastic band off. Dr Duncan stated that he has had no further counselling or treatment from a psychiatrist.
27.Mr Duncan told the Tribunal that he thinks about the 1969 incident from time to time and that sometimes he experiences images of:
“him crawling. Him on his back looking, mouth trying to say something.…Him on his side, his guts hanging out. And me trying to push it back in will come out of the blue.”
Mr Duncan stated that when he has these thoughts he feels uptight; short tempered; clammy; shaky and like he wants to cry, but does not. Mr Duncan stated that he experiences these images every three weeks or so, but that sometimes he experiences then more often but he could not “put on a regular pattern”. Mr Duncan stated that his flashbacks would occur when his mind was not active and that the image was “just like a photograph”. He believed he mentioned this to his doctor who he again thought made a notation. Mr Duncan stated that some war movies, such as “Black Hawk Down”, make him feel as though he is a part of it and recalled having to leave the movie theatre during a scene where a medic put his hand inside a leg to pull an artery back down. It was Mr Duncan’s evidence that sometimes he sees the eyes of the little girl who was injured at the Airport, other times he sees the soldier on his stomach and sometimes on his side with Mr Duncan at his back.
28.In relation to his consultation with Dr R Haik, Consultant Psychiatrist, Mr Duncan recalls seeing him fro about 40 to 45 minutes. Of this consultation, Mr Duncan stated that he felt as though he was not able to elaborate with Dr Haik and that it was just a question and answer-type session. Mr Duncan stated that he probably would have mentioned to Dr Haik that he had thought about the shooting incident in the past, but could not recall the exact amount of times.
29.Mr Duncan recalled seeing Dr K Koller, Consultant Psychiatrist, for the purpose of obtaining a report and stated that this was at the suggestion of an RSL officer. Mr Duncan recalled Dr Koller as being “laid back” and recalled doing “the majority of the talking”. He could not remember whether or not he told Dr Koller about the girl at Sydney Airport.
30.Mr Duncan stated that he must pass a physical clearance in his current position, undertaken approximately every 12 months, which he has done to date. At the most recent examination, Mr Duncan told the doctor about his having post traumatic stress disorder and the doctor stated that Mr Duncan would need to obtain work clearance from a psychiatrist. Mr Duncan has not yet obtained that clearance. He could not recall whether or not he had talked to his general practitioner about this.
31.In addition to the incident with the little girl, Mr Duncan has been involved in a number of other traumatic incidents including in 1988 at Norfolk Island, when attending a large fire, he was inside a building when it collapsed on Mr Duncan and other firemen. Mr Duncan has also been involved in the Explosion of an ethanol gas tanker most recently at Port Kembla. Mr Duncan told the Tribunal that these types of incidents are part of his job and his psychiatric condition does not impact on his ability to undertake his work.
evidence of mr john c lynch
32.The Tribunal had the benefit of a statement dated 27 September 1969 by Mr Lynch (Exhibit R3) and a letter written by Mr Lynch dated 27 November 2003 (Exhibit A5).
33.In evidence to the Tribunal, Mr Lynch stated that he was troop Sergeant in September 1969 and described the incident which occurred in a drill hall on 17 September 1969, when troops were undertaking gun training, supposedly using blank bullets. Mr Lynch described a loud explosion which was different to the usual sound of guns exploding. Mr Lynch stated that he looked at the cloud and saw Sapper Chard walking, crouching then stooping over and starting to fall. Mr Lynch ran immediately to investigate and put his arm and hands around Sapper Chard and realised that his hands were wet. Warrant Officer Wright came to Mr Lynch’s assistance. Mr Lynch described applying handkerchiefs to Sapper Chard’s back and front. At some point during these proceedings Mr Wright phoned for an ambulance. Mr Lynch described seeing a small wound on Sapper Chard near the groin area and another wound on his back near the hip. Mr Lynch was applying more pressure with his hands to the back than the front. Mr Lynch did not open up Sapper Chard’s clothes and kept talking to him, trying to calm him so as to prevent him from going into shock. There were other people around who were assisting and Mr Duncan was one of those people. Eventually Sapper Chard was lifted onto a stretcher. Mr Lynch stated that he did not see any intestines protruding from Sapper Chard. Mr Lynch stated that he was confident that he was the only person tending to Sapper Chard’s wounds and that his main aim was to stem the bleeding.
34.Mr Lynch noted that just prior to the shooting of Sapper Chard, Mr Duncan was in his own room at the side of the drill hall as he had his troops undergoing training as well.
35.From the Court of Inquiry into this shooting incident, it was noted that four foreign rounds of ammunition were detected during the inspection of drill rounds and it was found that the round which occasioned injury to Sapper Chard had been a live round. The two rounds were identified as point 38 calibre revolver cases with full projectile inserted and there were two spent 9mm cases with fired 9mm projectiles inserted (T6, p109).
36.Mr Lynch noted at the time of the incident, he observed that Mr Duncan had a red mark on his forehead. Later that evening, after Sapper Chard had been taken to hospital, Mr Lynch and others including Mr Duncan went to the Mess. Mr Duncan tried to pour a glass of beer but found it very difficult, Mr Lynch recalled.
evidence of dr c a canaris, consultant psychiatrist
37.The Tribunal had the benefit of a report from Dr Canaris dated 7 June 2004 (Exhibit A4). Dr Canaris also provided evidence to the Tribunal at Hearing. Dr Canaris had examined Mr Duncan on 26 May 2004.
38.Dr Canaris took a history from Mr Duncan that since the shooting incident of Sapper Chard, Mr Duncan has been having great difficulty with sleep, irritability and hyperarousel. These symptoms, according to Dr Canaris’ understanding of Mr Duncan’s history, occurred before the incident with the little girl.
39.Dr Canaris related Mr Duncan’s reaction at the funeral of a friend, “Butch” in September 1999, when another friend came up to Mr Duncan and seemingly, having found out of something of Mr Duncan’s presence at the Sapper Chard incident, then noted that Mr Duncan had changed over the years. Mr Duncan told Dr Canaris that he has thought about the shooting incident everyday since it happened. He also described to Dr Canaris that he tried to push Sapper Chard’s intestines back into the body. Dr Canaris noted that the history was of symptoms also present continuously within recent years. Dr Canaris noted that Dr M Moore, Consultant Psychiatrist, had a different history of the symptoms and their duration. Dr Canaris was not aware that at the 1999 funeral, a friend had initially told Mr Duncan to have his hearing tested and then later talked about changes in Mr Duncan’s behaviour.
40.Dr Canaris noted that while there are differences in emphasis in the history taken by him compared to the history taken by Dr Moore and acknowledged that there was the possibility that Mr Duncan had mixed up the incidents between Sapper Chard and the little girl being disembowelled, what was important to consider in this matter is Mr Duncan’s perception. Even if Mr Duncan had mixed up the two traumatic incidents with Sapper Chard and the little girl, they were both nonetheless traumatic and stressful experiences for Mr Duncan. Dr Canaris believed Mr Duncan’s history. If Mr Duncan had not been involved in administrating first aid to Sapper Chard, it would decrease the level of trauma, Dr Canaris opined, but it would not take away from the fact that the shooting incident was traumatic.
41.Dr Canaris further opined that Mr Duncan was initially traumatised by the Sapper Chard incident and then this was aggravated by the fatal accident with the little girl. Mr Duncan does not have avoidance behaviour and Dr Canaris understood that the opinion of Dr Moore which was that Mr Duncan did not have post traumatic stress disorder, was based on Mr Duncan not having any phobic avoidance behaviour. Dr Moore did recognise however that Mr Duncan does have some symptoms of post traumatic stress disorder and Dr Canaris noted this. Dr Canaris opined that it could be argued that Mr Duncan’s career choice of clearly dangerous employment could be seen as counter phobic behaviour, which allowed him, through his work, to confront those things he most feared. He acknowledged however that Mr Duncan’s career choice was a puzzling aspect of his case.
42.Dr Canaris opined that in relation to reaching a diagnosis the diagnostic criteria contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (“DSM-IV”), is a useful tool in classifying psychiatric disorders but should not be applied like a “recipe book”. In Dr Canaris’ view, the diagnosis from DSM-IV which best fits Mr Duncan’s symptoms is that of anxiety disorder not otherwise specified which, Dr Canaris further opined, is a “Forme fruste” of post traumatic stress disorder. Dr Canaris agreed that a diagnosis of anxiety disorder not otherwise specified does not require the presence of a stressor.
43.Dr Canaris assessed Mr Duncan’s anxiety disorder not otherwise specified as providing a ten per cent permanent impairment from the Guide to the Assessment of Rates of Veterans’ Pensions (“the Guide”). The impairment of ten per cent requires minor disturbances of thinking which, in Dr Canaris’ view, could be seen in Mr Duncan continually recalling the events 30 years ago, his bursting into tears for no apparent reason, his irritability and his ongoing sense of anxiety. These symptoms could equally be applied to minor distortions of the activities of daily living. Mr Duncan’s condition is stable, however Dr Canaris recommended supportive treatment be provided by Mr Duncan’s general practitioner and a form of antidepressant in addition to informal counselling. Dr Canaris opined that because of the length of time Mr Duncan has suffered this psychiatric disease, medication may not produce much change. Dr Canaris opined that Mr Duncan would require more than the six sessions of counselling as recommended by Dr Moore, with the more beneficial level of counselling being 20 sessions.
44.Dr Canaris noted that when Mr Duncan spoke of the Sapper Chard incident and the little girl, his demeanour changed as compared to his presentation when talking about other traumatic incidents. In this regard, Mr Duncan took on a flat and distant appearance. In the Sapper Chard incident, Dr Canaris stated that it should not be forgotten that Mr Duncan was hit by a bullet and that he would have known that the shooting of 9mm rounds is life threatening.
45.Dr Canaris opined that Mr Duncan did not seek assistance, treatment or speak to his general practitioner about his symptoms because he felt shame at his reaction to the shooting incident, that is, of being angry and frustrated at the time, and of being more concerned about himself when he should have been concerned for someone who had actually been wounded. Furthermore, this accident occurred in Australia in a training hall whereas other soldiers were being injured in active service in Vietnam. Dr Canaris also noted that Mr Duncan did not speak about the shooting incident because he thought he might be seen to be bragging or to be a “woos”.
46.In relation to evidence that after the shooting incident, Mr Duncan became overly stringent in relation to training his men in the use of guns, Dr Canaris agreed that it was sensible to be stringent about such safety issues, but in his view, Mr Duncan’s reaction was excessive. When diagnosing a condition, it is important to look at the whole picture, including the history and the whole of the symptoms. In Mr Duncan’s case, he had persistent sleep problems, irritability reported by himself and others and hyperarousal in relation to loud noises, such as from aircraft and explosions. When Dr Canaris reported on Mr Duncan, he was not aware in relation to sleep problems that Mr Duncan was a shift worker and accordingly, Dr Canaris acknowledged that shift workers can have sleep disturbances.
47.Dr Canaris did not agree with Dr Haik’s opinion that Mr Duncan’s symptoms are as a result of the ageing process or involutional change. Dr Haik’s opinion is not now widely accepted in current psychiatric thinking, Dr Canaris suggested. Dr Canaris further opined that Dr Haik was presenting a black and white opinion and not considering alternatives, particularly given the history; Mr Duncan’s self reporting of symptoms; the evidence from his family that Mr Duncan is a changed person, and comments by his work colleagues about his behaviour in general.
48.In relation to Dr Moore’s opinion that Mr Duncan had a partial post traumatic stress disorder, Dr Canaris acknowledged that she had obtained a different history from Mr Duncan and like Dr Haik had acknowledged the impact of the aging process on Mr Duncan’s symptomatology. Dr Canaris did not agree that older people will invariably become depressed or anxious. There were earlier manifestations of Mr Duncan’s symptoms which cannot be accounted for by age, Dr Canaris opined.
evidence of dr r haik, consultant psychiatrist
49.Dr Haik provided a report dated 30 June 2003 (Exhibit R1) and provided evidence at Hearing. Dr Haik noted Mr Duncan’s history of thinking two or three times per night about the incident concerning Sapper Chard everyday for 30 years and of the bullet impacting on his head. Dr Haik noted no persistent avoidance of matters associated with the shooting, nor any hyperarousal symptoms. Dr Haik noted that Mr Duncan reported being unable to sleep before 1am and will get up each morning by alarm at 5:30am. Dr Haik reported that Mr Duncan has a good relationship with his wife and family. Mr Duncan told Dr Haik that he thinks about other incidents from his work such as the burning building collapsing on him in Norfolk Island and of the debowelling of the little girl at the airport, “once in a blue moon” (Exhibit R1, p3).
50.Dr Haik noted that Mr Duncan has worked in employment as a fire officer and has been promoted, working in this setting for over 29 years. Dr Haik, on examination of Mr Duncan, found no clinical evidence of anxiety or depression. Dr Haik’s history noted that in 1998, Mr Duncan’s General Practitioner, Dr Keighery, recommended he see a work counsellor, Ms Van der Pohl and he was subsequently referred for further counselling to Corporate Health Services. Dr Haik noted that the incident concerning Sapper Chard was prominent, because Mr Duncan had assisted the injured man and he had, as reported by Dr Duncan, seen Sapper Chard’s protruding intestines, not having seen intestines before.
51.Dr Haik noted that Mr Duncan has not sought treatment for his condition but despite this being recommended by Dr K Koller, Consultant Psychiatrist.
52.Dr Haik noted that the shooting of Sapper Chard was a profound experience, but Mr Duncan only spoke to his immediate family about it. Mr Duncan’s explanation for not talking more widely about the incident or its affect was that other soldiers have experienced real hardship and Mr Duncan would be thought of as “bragging or lying” if he spoke about the incident. Dr Haik noted as extraordinary, that there is no mention of the shooting incident or its impact on Mr Duncan in his medical file and given that, Dr Haik concluded that Mr Duncan was not troubled by the experience, particularly as he has not been reticent in talking about other health matters. Also of relevance, is that the year following the shooting of Sapper Chard, Mr Duncan enlisted in the Army, implying that he was not sensitised to the danger of weapons and the damage they create, Dr Haik opined.
53.Dr Haik noted the discrepancy in the history that Mr Duncan had told him thinking about the shooting incident every night for 30 years, yet he told Dr Koller that his symptoms started since he saw a television program about the Granville train disaster in 1999 and that he had experienced continuous symptoms since then. Dr Haik noted that Dr Moore reported that Mr Duncan became symptomatic following the death of a close friend in 1999. This again suggested to Dr Haik that Mr Duncan had not been plagued by intrusive thoughts for the 30 year period which he had told others about. Dr Haik agreed with Dr Moore’s opinion that the death of a friend in 1999 caused Mr Duncan to face his own mortality.
54.Dr Haik could not see why Mr Duncan would not talk to doctors about his symptoms and did not understand his issue of shame or him experiencing survivor guilt, as Sapper Chard survived. Dr Haik concluded that the reason that Mr Duncan did not report the incident is because he had no symptoms warranting reporting it to anyone. Dr Haik did agree however that 30 years ago, there was a stigma in reporting mental illness.
55.In terms of diagnosis, Dr Haik opined that Mr Duncan does not exhibit the avoidance symptoms necessary for a diagnosis of post traumatic stress disorder to be made. In relation to poor sleep, that is likely to relate to Mr Duncan’s shift work, Dr Haik further opined. While Dr Haik had initially opined in his report that there was no applicable psychiatric diagnosis in relation to Mr Duncan, at Hearing, he concluded that a diagnosis of anxiety disorder not otherwise specified could be made, but that it was due to involutional changes. It is Dr Haik’s view that the effects of the 1969 shooting incident would have abated soon after the event. Dr Haik noted that Mr Duncan has a good relationship with his wife and family. Dr Haik does not consider that the shooting of Sapper Chard was a stressor. Dr Haik noted that as some individual’s age, their past capacity to function intellectually will begin to wane. The change is evident in a person becoming inflexible, irritable and there being a reduction of emotional control particularly in emotional people and this is what Mr Duncan experiences. Furthermore, the symptoms Mr Duncan experienced, waxed and waned. In so opining, Dr Haik agreed that age of itself does not lead to psychiatric disorder. Dr Haik also agreed that “Prozac” or “Zoloft”, antidepressant medication may assist Mr Duncan. He acknowledged that other psychiatrists may not treat anxiety with medication but with counselling.
56.Dr Haik did not subscribe to Dr Canaris’ opinion that Mr Duncan was exhibiting counter phobic behaviour by his undertaking stressful occupations. In this regard, Dr Haik noted that after 30 years of such counter phobic behaviour, one might expect that Mr Duncan had cured himself. Such a conclusion by Dr Canaris is “far-fetched”, Dr Haik opined, although he noted that St Vincent’s’ hospital in Sydney has short-term programs to assist patients with phobic behaviour.
evidence of dr m moore, consultant psychiatrist
57.Dr Moore provided two reports dated 2 April 2002 (T16) and 30 July 2003 (Exhibit R2) and provided evidence to the Tribunal by telephone.
58.Dr Moore took a history of Mr Duncan being knocked to the floor after a loud bang, like a gunshot. He then saw Sapper Chard lying on the floor. While Mr Duncan admitted some exaggeration to Dr Moore in the provision of his history about the incident, Mr Duncan told Dr Moore that Sapper Chard’s intestines were protruding posteriorly. Mr Duncan subsequently volunteered for Army service in Vietnam, Dr Moore noted. Dr Moore reported that one of Mr Duncan’s friends who was present during the incident on 17 September 1969, died in 1999 and Mr Duncan reported being distraught at this event and exhibited greater distress than would have been expected at the funeral. Dr Moore noted that Mr Duncan retired from the Army Reserve in 1974 after 35 years, stating he was finding it difficult to deal with full-time work and the Army Reserve. Mr Duncan reported to Dr Moore that five or six years before his friend died in 1999, he was irritable, felt abusive towards people at work and was having sleep difficulties over those past four or five years, but not associated with nightmares. He had reported to his general practitioner at the time, Dr Burn, about sleep problems. Dr Moore noted Mr Duncan’s report of being rigid about safety issues and Dr Moore further reported that some films upset Mr Duncan. Dr Moore also noted Mr Duncan’s activities as a drum major in a Scottish pipe band.
59.Although Dr Moore noted that Mr Duncan was tearful at times, she opined that he was not clinically depressed. Dr Moore diagnosed some features of post traumatic stress disorder and it was a matter of semantics, in terms of diagnosis, she explained whether Mr Duncan had a partial post traumatic stress disorder or an anxiety disorder not otherwise specified. The diagnosis of anxiety disorder not otherwise specified was a “rag bag” of symptoms, Dr Moore opined, into which fitted symptoms which did not entirely correspond to a specific any specific anxiety disorder.
60.Dr Moore had a different history to that obtained by Dr Canaris and broadly agreed with Dr Haik that age was an influential factor in Mr Duncan’s symptomatology. The sleep disturbance reported to her by Mr Duncan in the last four or five years was not unusual in individuals in their fifties, Dr Moore opined. Dr Moore further opined in her report that employment in the Army Reserve was probably the principal course of his condition to the level of less than a ten per cent contribution (T16) and that the symptoms became prominent with the death of his friend in 1999. It was Dr Moore’s view, that Mr Duncan did not become symptomatic until the death of his friend in 1999. Dr Moore concluded that she did not believe that Mr Duncan has been incapacitated as a result of any condition caused or contributed to by his employment in the army and that he does not suffer directly from any psychiatric condition caused by his employment in the army or the incident of 7 September 1969. Dr Moore opined that other life events and facing his own mortality, have caused Mr Duncan to focus on the 1969 incident, rather than there being any pre-existing conditions which have either ceased or increased with time. Dr Moore concluded at Hearing that possibly the 1969 incident had some impact on Mr Duncan, but would not put it any higher than that. Dr Moore also noted as a concern, that when Mr Duncan was seeking counselling, he did not “make anything much” of his Army experiences.
61.In relation to the issue of Mr Duncan undertaking the dangerous work he has chosen as his career path, Dr Moore did not describe this as counter phobic behaviour. There difference of opinions between Dr Moore and Dr Canaris relate to both doctors having obtained different histories. Dr Moore stated that here was not however, major difference in terms of the diagnosis. There was a difference of opinion in terms of the severity and the duration of the symptoms. Dr Moore agreed that people can still work when suffering from psychiatric illness, but the type of work Mr Duncan undertook, did not support there being severe psychiatric illness. What Dr Moore considered to be the causation of Mr Duncan’s symptoms is different to that concluded by Dr Canaris.
evidence of dr k koller, consultant psychiatrist
62.The Tribunal had the benefit of a report by Dr Koller dated 5 June 2000 (T7), which he prepared for the Returned and Services League.
63.Dr Koller reported that Mr Duncan had experienced restless sleep over the past 12 months and angry interactions with his family in addition to crying. Dr Koller noted the shooting incident in the Army Reserve and opined that this incident caused post traumatic stress disorder with Mr Duncan being involved in witnessing the threatened death and serious injury of another soldier. Mr Duncan also experienced a threat to his physical integrity and possible death, Dr Koller concluded. There are symptoms of road rage, and the severity had been enhanced since the death of a friend in 1999. Dr Koller recommended further psychiatric consultations.
evidence from corporate health services
64.The Tribunal had available to it notes of counselling sessions undertaken by Mr Duncan with Corporate Health Services (Exhibit R6). The initial consultation occurred on 19 October 1999 and it is noted that the referral came from a staff counsellor for “traumatic stress”. At the time of his first consultation for counselling, it was reported that he had felt a build-up in his chest and that he was crying. It is noted that on 21 October 1999, Mr Duncan was referred after “recent work place of stress episode, reported long term effects of critical incident in 1994/95”. It was noted that the main traumatic incident involved a girl who had been cut and sliced through the abdomen and upper legs. The notes recorded that Mr Duncan had tried to stop the bleeding and while doing this the little girl was looking at him with terror and hatred in her eyes. It was also noted that “bits” of the girl’s intestines were falling on Mr Duncan’s boots. There were other incidents reported in the counselling sessions such as: in the Army, “shot himself in head” (Exhibit R6, extract from 23 October 1999); dealing with a fire on a convoy truck when a person died; at Sydney airport, a man being crushed in a building at work; cleaning up body parts from the Tarmac; injury of an elderly Chinese woman as well as other incidents at Sydney Airport. The counsellor recorded that the worst incident was with the little girl “Melanie”. The symptoms noted were of sleep disturbance but it was also noted that Mr Duncan worked shifts and there were pressures and changes at his work. The counselling notes further recorded a referral of Mr Duncan to a “PTSD program”.
65.On 28 November 1999, the counsellor noted that Mr Duncan had arranged for a family meeting and told them of the “Melanie” story. Mr Duncan reported feeling embarrassed but relieved at having done this. He could not go to work the next Monday because of his anxiety. The counsellor also recorded that that Mr Duncan had reported the Melanie story, talking about the intestines on the table, not having enough bandages and of trying to keep his hand on the little girl’s stomach while her eyes looked at him in terror. Mr Duncan was also reported by the counsellor to have felt a sense of isolation during that process. It was recorded that Mr Duncan has intrusive thoughts of the little girl looking at him with horror and hate. He then related other traumas to the counsellor but it is recorded that nothing was “as bad as Melanie”. On 8 November 1999, Mr Duncan reported flashes again of Melanie and of having sleep disturbance. He talked about other traumas of a German tourist, the incident of the soldier shooting, but told the counsellor that nothing compared to the Melanie experience. Mr Duncan noted that he had not talked for years about the experience with the little girl. On 10 November 1999, it is reported in the notes that Mr Duncan’s sleep was improving, he was feeling less agitated, he talked of his father’s death, he talked about other traumas including early trauma in the Army and the counsellor recorded “linked with Melanie”. On 21 December 1999, the report noted Mr Duncan was experiencing less intrusive thoughts, he was more comfortable talking to his colleagues and his crew, but still had flashbacks about the little girl Melanie; however he was genuinely feeling calmer.
clinical notes of dr g j keighery, general practitioner
66.The Tribunal had the benefit of Dr Keighery’s clinical notes (Exhibit R5). On 17 September 1999, Dr Keighery noted problems at work with staff shortages and noted the previous work stress of a three year old being disembowelled. Dr Keighery noted that Mr Duncan was very distressed, irritable at home and was referred to the staff counsellor, Ms Van der Pohl, concerning depression. On 30 September 1999, Dr Keighery noted that Mr Duncan was improving, he had mild anxiety, was less anxious in the car but still not sleeping, Dr Keighery questioned whether Mr Duncan possibly had post traumatic stress disorder. On 18 October 1999, Dr Keighery noted that Mr Duncan was improving but still not sleeping, and prescribed the antidepressant Zoloft. On 9 May 2000, Mr Duncan was referred to Dr Koller with post traumatic stress disorder.
67.A notation dated 30 June 2003, refers to Mr Duncan seeing Dr Haik regarding post traumatic stress disorder and that he was upset with the interview with Dr Haik. A further date of July 2003 noted Mr Duncan was uptight and was taking Zoloft at night, there were no further notations as at 2 February 2004, concerning any mental health issues.
consideration and findings
68.The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
69.At the outset, it must be decided whether or not the lateness of Mr Duncan’s claim for compensation prevents this claim from being determined. As noted earlier in this decision, because Mr Duncan’s claim was made on 7 May 2001, in relation to an incident which occurred on 17 September 1969, it falls for consideration initially under the 1930 Act. The Tribunal was assisted in determining this issue by considering Comcare v McGuire [1996] 683 FCA 1.
70.Section 16 of the 1930 Act does not allow a claim for compensation for a disease unless notice of the accident has been served upon the Commissioner as soon as possible and before the employee voluntarily leaves employment of the Commissioner. The claim itself must have been made within six months of the incident. There are exemptions however, firstly in relation to a notice of the disease such that if there is a want or deficiency of provision of the notice, it may still be considered if it does not cause prejudice to the Commonwealth to do so, or that the failure to provide the notice was not occasioned by a mistake, absence from Australia or another reasonable cause. Secondly, in relation to the failure to make a claim within a six months period, consideration may be given to it in circumstances of the making of a mistake, absence from Australia or reasonable cause. A considerable amount of time has passed since the Sapper Chard incident, the subject of this claim. There is some inconvenience to the Commonwealth in trying to find records of matters which have occurred so long ago. However, there are documents indicating the occurrence of the shooting of Sapper Chard and some evidence indicating Mr Duncan’s presence on that occasion. While it is difficult for all concerned in relation to considering an incident that occurred on 17 September 1969, we are of the view that this does not produce an insurmountable problem for the Commonwealth and accordingly does not prejudice the Commonwealth. There was a failure by Mr Duncan to lodge a notice and also to lodge a claim within six months of the incident. It is reasonable to conclude that this lateness was reasonable in that Mr Duncan did not believe he had a psychiatric disease or an appreciation of the possible impact of the shooting of Sapper Chard on him, until many years later. It can often be the case with psychiatric conditions that is not until much later that the impact of a particular event or experience is realised. As far as we are aware from the documentary evidence, it was not until Dr Koller diagnosed post traumatic stress disorder on 5 June 2000, that a firm diagnosis was made possibly linking a diagnosable condition of post traumatic stress disorder with the incident which occurred in the shooting of Sapper Chard in 1969. It is true that Mr Duncan did not lodge a claim for over a year after Dr Koller’s diagnosis, however, we are prepared to accept that there is a reasonable explanation in the notification and claim for psychiatric condition based on the lack of knowledge of the possible impact of that incident on Mr Duncan, in addition to the possible impact of the condition itself. In such circumstances, we consider that Mr Duncan’s claim for compensation should be allowed for consideration complying with section 16 of the 1930 Act, thus allowing a determination of the claim to be made under the 1988 Act.
71.The Tribunal turns to consider the symptoms suffered by Mr Duncan and whether this represents a psychiatric condition and what is its causation. It is opined by Dr Koller, that Mr Duncan has post traumatic stress disorder, consequent upon his experience when Sapper Chard was shot. Dr Canaris diagnosed Mr Duncan as having an anxiety disorder not otherwise specified related to the shooting incident and Dr Haik was prepared to accept that diagnosis, although not the causation. Dr Moore has diagnosed a partial post traumatic stress disorder, but at Hearing, acknowledged that the difference between her diagnosis and the diagnosis by Dr Canaris was a matter of semantics. Dr Moore was prepared to accept that anxiety disorder not otherwise specified could be the diagnosis, recognising that such a diagnosis was a “rag bag” of symptoms which would not easily fit within other specific DSM-IV diagnostic criteria.
72.From DSM-IV, a diagnosis of anxiety disorder not otherwise specified includes disorders with pronounced anxiety or phobic avoidance that does not meet the criteria for any specific anxiety disorder such as adjustment disorder with anxiety or adjustment disorder with mixed anxiety and depressed mood. A specific anxiety disorder, such as generalised anxiety disorder, deals with symptoms of excessive worry and anxiety arising out of a number of events. Post traumatic stress disorder is another specific anxiety disorder, which has at its central requirement exposure to a traumatic event. It is interesting to note, although not relevant to the determination in this matter, that the Statement of Principals concerning Generalised Anxiety Disorder in relation to claim for disability pension under the Veterans’ Entitlements Act 1986 does have as one of the causative factors, experiencing a severe psychosocial stressor prior to the onset of generalised anxiety disorder. There is no requirement for there to be a stressor present when diagnosing anxiety disorder not otherwise specified. We consider that Mr Duncan does not suffer from post traumatic stress disorder as he does not have the requisite avoidance symptoms.
73.Some of the experts involved in the provision of psychiatric opinions have referred to DSM-IV as being a tool useful in the classification and diagnosis of psychiatric conditions, and for research purposes, but which has some drawbacks in that it should not be applied as a recipe book. It was urged upon the Tribunal that there must be a recognition that some disorders simply do not fit completely or at all within the diagnostic criteria. In this regard, we note the “Cautionary Statement” that the commencement of DSM-IV where it is noted that the specific diagnostic criteria are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. There is also a statement at the commencement of the manual in relation to the use of “not otherwise specified categories” which notes that because of the diversity of clinical presentations, it is impossible for the diagnostic nomenclature to cover every possible situation, for that reason, each diagnostic chart has at least one, “not otherwise specified” classification. The statement notes that there are four situations in which a “not otherwise specified” diagnosis may be appropriate. Of specific relevance in Mr Duncan’s case is the first situation which notes that a presentation may conform to the general guidelines for a mental disorder in the diagnostic chart, but the symptomatic picture does not meet the criteria for any of the specific disorders. This would occur when the symptoms are below the diagnostic threshold for one of the specific disorders or when there is an atypical or mixed presentation.
74.We find, on all of the evidence available to us that Mr Duncan suffers from a condition of anxiety disorder not otherwise specified and that for the purposes of section 10 of the 1930 Act, this condition is a disease. We have not accepted Dr Koller’s opinion of there being a post traumatic stress disorder, given the weight of other medical opinion and because on our understanding of the evidence, there are no avoidance symptoms present which are required for a diagnosis of post traumatic stress disorder to be made.
75.Having found that Mr Duncan has a psychiatric disease of anxiety disorder not otherwise specified, the issue that then falls for determination is the causation of this condition. We have already found that the shooting of Sapper Chard occurred. We also find that Mr Duncan was present on that occasion. On consideration of all of the evidence, particularly that of Mr Lynch and the report of the inquiry into the incident, we find that Sapper Chard was wounded from a bullet which entered his groin area. There was slight bleeding at the entry wound and bleeding at Sapper Chard’s back. We do not find, on consideration of all the evidence, that there was an extrusion of intestines or that Mr Duncan was involved in pushing the intestines back into Sapper Chard’s body. We find that the primary first aid care was provided by Mr Lynch in applying bandages to Sapper Chard’s front and back. We also find that Mr Chard’s clothes were not undone or taken off by Mr Lynch or Mr Duncan. There was undoubtedly confusion during the emergency situation which arose when Sapper Chard was shot and we do not doubt Mr Duncan’s perception of what occurred during that crisis. We also accept that Mr Duncan had a red mark on his forehead, but we are not able to be reasonably satisfied on the balance of probabilities that he was in fact hit by the bullet which wounded Sapper Chard.
76.We accept the argument in general put by Dr Canaris, that one must look to the perceptions that Mr Duncan had in relation to this event and his perception of danger to himself and to Sapper Chard. However, in Mr Duncan’s case, we believe that Mr Duncan’s recollection of the Sapper Chard incident have become confused with another incident and that is the fatal wounding of the little girl variously referred to as “Melanie”. In the incident with the little girl, which we believe occurred in 1994/1995 (Exhibit R6), Mr Duncan was called in his capacity as a fire officer at Sydney Airport, to attend to the little girl who had been injured while lying down on a moving walkway.
77.Mr Duncan told a counsellor that he found the little girl was terrified and had hatred in her eyes when looking at Mr Duncan. Furthermore, the evidence he provided to the counsellor was that there were parts of the little girl’s intestines protruding and falling onto his boot. It is the recollection of this incident in about 1998/1999 that caused Mr Duncan to see a staff counsellor, Ms Van der Pohl, who then referred him to Corporate Health Services for a number of counselling sessions commencing on 19 October 1999 for traumatic stress. It is this incident which we consider is the genesis of Mr Duncan’s anxiety disorder not otherwise specified and not that arising out of the incident with Sapper Chard.
78.We note that in the course of counselling, Mr Duncan did mention other incidents at work at the airport, such as the body parts being strewn around the tarmac as a result of a person coming into contact with a moving propeller and also of the general trauma of the incident in the Army. The incident which Mr Duncan focuses on during counselling is that of the incident with the little girl. While we note the submissions by Counsel that this emphasis on the little girl occurs because that was the focus of the counselling, we note that counsellors although dealing with specific issues, as the counsellor was shown to do in his or her dealings with Mr Duncan in this case, also consider the whole of the symptom complex in addition to other possible triggers or events for Mr Duncan’s distress. This approach as indicated by the counsellor’s notes, was the approach urged upon the Tribunal by Dr Canaris when he criticised Dr Haik’s black and white opinion. We also note that the history taken by Dr Koller indicates symptoms occurring in the previous 12 months prior to Mr Duncan’s 2000 consultation with Dr Koller. The history taken by Dr Moore was of symptoms occurring in the previous five or six years prior to her examination in March 2002. Neither Dr Koller nor Dr Moore recorded any history of the incident with the little girl. The omission of this significant aspect of Mr Duncan’s history, in our view, diminishes the ability of Dr Koller and Dr Moore to provide a comprehensive opinion. The evidence to Dr Haik and Dr Canaris, much later than the history provided to Dr Koller and to Dr Moore, indicates that Mr Duncan has been experiencing symptoms since the 1969 incident (Exhibit R1, pp1, 3; Exhibit A4, p4).
79.Mr Duncan explained to the Tribunal that he had not spoken about the 1969 shooting incident or sought help for symptoms including sleep disturbance, hyper-arousal or irritability for thirty years because he was ashamed to do so. When we consider the evidence of the work counsellor and subsequently, the counsellor(s) from Corporate Health Services and Dr Keighery, the reason for presentation was the tragic accident with the little girl in 1994/1995. While Mr Duncan mentioned the 1969 shooting incident, this was as part of a history along with other traumatic incidents he had experienced. The Counselling notes available to the Tribunal clearly show the 1994/1995 incident as the precipitation of Mr Duncan’s distress and did not report ongoing difficulty from 1969. In these circumstances, we do not consider that, given the more contemporaneous material of the counselling notes, Mr Duncan was ashamed to report symptoms from 1969. We believe that Mr Duncan has confused the 1969 and 1994/1995 incidents, and his memory of them has merged. We simply cannot be reasonably satisfied on the balance of probabilities, that the symptoms complained of by Mr Duncan in 2003 to Dr Haik and 2004 to Dr Canaris, relate to the incident in the Army in 1969, when the evidence is considered in relation to the incident with the little girl in 1994/1995. This is not to suggest that the incident in 1969 was not a significant event, but the objective and contemporaneous history available to the Tribunal makes it more probable than not, that the event with the little girl which occurred during the course of Mr Duncan’s employment at the airport is the causative event in the development of his anxiety disorder not otherwise specified. Dr Canaris opined that Mr Duncan’s behaviour in seeking enlistment in full-time service in the Army and intention to serve in Vietnam was indicative of counter phobic behaviour, although he acknowledged that Mr Duncan’s career choices were “puzzling”. Dr Canaris’ opinion on this point is not shared by Dr Moore and Dr Haik. We prefer the opinions of Dr Moore and Dr Haik, particularly given the history in this matter and the evidence contained in the Counselling notes.
80.We note that the consideration of this matter falls under the provisions of beneficial legislation. However, this does not allow the Tribunal to make up evidence or assume situations when there is not sufficient evidence to allow such conclusions to be made on the balance of probabilities. We also find that there is no partial contribution to Mr Duncan’s anxiety disorder not otherwise specified by the shooting incident and even if there was, section 10 of the 190 Act does not allow for a partial contribution as discussed in Re Wright v Commonwealth of Australia (1988) 14 ALD 567. From all of the material before us, we are reasonably satisfied that the Sapper Chard incident did not, under the provisions of section 10 of the 1930 Act, cause Mr Duncan’s anxiety disorder not otherwise specified and hence he was not incapacitated for work by that condition. Accordingly, as Mr Duncan is not entitled to compensation under the 1930 Act, he is not entitled to compensation under the 1988 Act.
81.Accordingly, in all of the circumstances and for the reasons expressed above, the decision under review is affirmed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member, Dr M E C Thorpe, Member
Signed: Linda Blue..........................................................
AssociateDates of Hearing 24 March 2004 and 16 June 2004
Date of Decision June 2004
Counsel for the Applicant Mr C Jackson
Solicitor for the Applicant Mr B Winship, Fairbairn Lawyers
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Ms L Figurka, Sparke Helmore
schedule 1
list of exhibits
NUMBER
DESCRIPTION
DATE
A1
Handwritten notes by Dr G. J Keighery, General Practitioner’s, medical records. Includes Medical Certificates dated 24 September 1999 and 30 September 1999.
September 1999 to February 2001 and then June 2003.
A2
Application for Leave completed by Mr Duncan.
25 September 1999
A3
Application for Leave completed by Mr Duncan.
6 October 1999
A4
Report by Dr Canaris, Consultant Psychiatrist.
Dated 7 June 2004
A5
Letter by Mr Lynch.
27 November 2003
R1
Report by Dr R Haik, Consultant Psychiatrist.
30 June 2003
R2
Report by Dr M Moore, Consultant Psychiatrist.
30 July 2003
R3
Statement of Sergeant Lynch
27 September 1969
R4
Report of Injury or Illness of Chard
27 September 1969
R5
Clinical notes of Dr G. J Keighery, General Practitioner.
Various
R6
Bundle of documents from Corporate Health Services
Various
2
1
0