Farnaby and Military Rehabilitation and Compensation Commission
[2008] AATA 603
•11 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 603
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/85
GENERAL ADMINISTRATIVE DIVISION ) Re MARK GEORGE FARNABY Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President)
Dr J Campbell (Part-Time Member)Date11 July 2008
PlaceHobart
Decision The Tribunal affirms the decision under review.
[Sgd The Hon RJ Groom]
Deputy President
CATCHWORDS
COMPENSATION - Safety Rehabilitation and Compensation Act 1988 - RAN recruit claiming PTSD and personality disorder - "bastardisation" at RAN Training Establishment - sexual abuse by sponsor - whether applicant complied with notice and claim provisions of 1930 Act - whether "reasonable cause" - whether "injury" and/or "disease" - whether applicant suffering any type of mental injury or disease - decision affirmed
Safety Rehabilitation and Compensation Act 1988, s124
Commonwealth Employees Compensation Act 1930, ss. 4(1), 9(1), 10(1), 16(1)(i), (ii), 16(4)(a)(ii), (b)(ii)
Commonwealth Acts Interpretation Act 1901, s15AA
Bowring and Comcare Australia No T95/117 dated 9 August 1996
Spear and Comcare No Q96/354 dated 8 July 1988
Prospect Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Insurance Commission of Western Australian v Container Handlers Pty Ltd (2004) 206 ALR 335
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28.
Banks v Comcare [1996] FCA 1490
Tralongo and MRCC [2004] AATA 124
Re Hairis and Comcare (1991) 23 ALD 379
Weston v Great Bolder Gold Mine Ltd (1964) 112 CLR 30
Frazer and Military Rehabilitation and Compensation Commission [2004] AATA 1403
Commonwealth v Bourne (1960) 104 CLR 32
Commonwealth v Rutlege (1964) 111 CLR 1
Connair Pty Ltd v Frederiksen (1979) 142 CLR 485)
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Hatzimanolisis v ANI Corporation Ltd (1992) 173 CLR 473
Comcare v Mooi (1996) 69 FCR 439
Comcare v Luck (1999) 29 AAR 403)
REASONS FOR DECISION
11 July 2008 The Hon R J Groom (Deputy President)
Dr J Campbell (Part-Time Member)Introduction
1. The applicant served in the Royal Australian Navy ("the navy") from 1 October 1968 until 1 January 1979.
2. On or about 24 January 2002 the applicant claimed compensation under the Safety Rehabilitation and Compensation Act 1988 ("the Act") for an injury or disease caused by his employment in the navy.
3. He claimed that he suffered PTSD as a result of "physical and sexual abuse" which he alleged occurred when he was at HMAS Leeuwin, a recruit training facility in Western Australia.
4. The applicant had joined the navy on 1 October 1968 as a 15 year old recruit. He was posted to Leeuwin some six days later. The applicant remained at Leeuwin until 30 September 1969. He alleges that his maltreatment primarily occurred in the first six months of his period of service at Leeuwin.
5. As the alleged causes of the injury or disease were the events at Leeuwin in 1968 and 1969 the Transitional Provisions in section 124 of the Act apply. The applicant is therefore not entitled to compensation under the Act unless compensation was payable for the injury or disease under the Commonwealth Employees Compensation Act 1930 ("the 1930 Act").
6. The applicant's claim for compensation was disallowed on 28 June 2002. On 26 July 2002 the applicant requested a reconsideration of the decision. On 22 April 2003 a reviewable decision was made affirming the determination of 28 June 2002.
7. On 8 May 2003 the applicant applied to this Tribunal for a review of the decision made on 22 April 2003.
8. The hearing of this review application commenced in Hobart on 23 January 2006 when a preliminary issue was considered and determined by the Tribunal. It resumed on 2 April 2008 and continued on 3, 4, 7, 8, 9, 10, 11 and 14 April 2008. Mr R Browne with Ms C Gregg appeared for the applicant and Mr B Morgan for the respondent.
9. Thirteen witnesses gave evidence at the hearing. They were the applicant, his former wife Ms Robyn Kim, his sister Ms Ann Strickland, former recruits at Leeuwin - Mr Graeme Frazer, Mr Stephen Purchase, Mr Kieth Pratt and Mr Robert Harley, psychiatrists Dr Sale, Dr Burges Watson and Professor Pridmore and general practitioners Dr Welch and Dr Roffe.
10. A substantial number of documentary exhibits were tendered by the parties and received into evidence including the T Documents lodged pursuant to section 37 of the Administrative Appeals Act 1975.
The Issues
11. The principal issues to be determined by the Tribunal are:
(a) Was notice given and the claim made as required by section 16(1) of the 1930 Act, and if not does the applicant satisfy the exceptions in section 16(1)(i) and (ii) of that Act?
(b) Does the applicant suffer from an injury and/or disease within the meaning of those terms in the 1930 Act?
(c) If yes to (b) then is the applicant incapacitated for work as a result of that injury and/or disease?
12. The Tribunal will now give detailed consideration to each of those issues and make decisions on them.
Section 16 of the 1930 Act
13. Section 16 of the 1930 Act provides as follows:
"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 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".
14. It is noted that a failure to comply with the requirements of section 16 of the 1930 Act was first raised by the delegate of the Department of Veterans' Affairs in her determination dated 28 June 2002.
15. At the hearing Mr Morgan for the respondent contended that section 16 had not been complied with. He submitted that no notice had been served on the Commissioner as required by the 1930 Act. Mr Morgan argued that the Office of Commissioner was abolished and replaced by a new Commonwealth authority "with separate and distinct functions" and that the Transitional Provisions in the Act did not permit a claim to be served on the new authority rather than on the Commissioner. In support of this proposition he cited an unreported decision of this Tribunal in Bowring and Comcare Australia No T95/117 dated 9 August 1996.
16. We are not persuaded that there is merit in this submission. If accepted it would mean that if notice was not served on, or a claim not lodged with, the Commissioner before 1 December 1988 when the Office of Commissioner ceased to exist, that claim could not be further considered.
17. The symptoms of many types of injuries including "mental injuries" may not become apparent for many years after the work-related cause has occurred. If this strict interpretation were accepted many potential claimants would be denied the opportunity to pursue a workers' compensation claim. In our view the Transitional Provisions make it plain that the legislature did not intend such a result. It would clearly defeat the essential purpose of those provisions. That purpose is to allow claims for compensation under the 1988 Act but based on an entitlement to compensation under, in this case, the 1930 Act.
18. This particular point was considered by Deputy President Forgie in Spear and Comcare No Q96/354 dated 8 July 1988. The relevant Act in that case was the 1971 Act. Deputy President Forgie said at paragraph 52 of that decision as follows:
"The 1988 Act has no provision to the effect that a claim may be served on Comcare rather than on the Commissioner to whom it had to be given under the 1971 Act. That must be implied from the general provisions giving Comcare power to do all things necessary or convenient to be done for, or in connection with, its functions (section 70) and also from section 128. Section 128 provides that any liability of the Commonwealth or of a Commonwealth authority under, among others, the 1971 Act, shall, to the extent that it has not been discharged before 1 December, 1988, be taken to have been incurred by, in the circumstances of this case, Comcare".
19. The purposive approach to interpreting a statute was recognised at common law and is now firmly established in statute. Section 15AA of the Commonwealth Acts Interpretation Act 1901 states as follows:
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object".
20. The approach is now widely recognised by Australian courts. (see Prospect Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at p381 and also Insurance Commission of Western Australian v Container Handlers Pty Ltd (2004) 206 ALR 335 at 365 per Kirby J and Palgo Holdings Pty Ltd v Gowans [2005] HCA 28.
21. A view expressed by McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 is helpful. His Honour said:
"It is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved".
22. The Tribunal therefore finds that it is implied by the legislative scheme that service on Comcare is sufficient to ground a claim based on the 1930 Act.
23. It was further argued on behalf of the respondent that the respondent was prejudiced by the delay and that the exceptions in sections 16(1)(i) and (ii) are not satisfied.
24. In the present case the applicant was not aware that he may be suffering an injury or disease caused by events at Leeuwin until after his chance meeting with Ms Nalder at the Trout Hotel in North Hobart. Ms Nalder worked for the Commonwealth Rehabilitation Service. It was following that meeting, which probably occurred in December 2001, that the applicant first gained knowledge that he may be suffering an injury or disease as a result of his employment. He said in correspondence (T13):
"It was only when I presented myself to Commonwealth Rehab and Vietnam Vets Counselling Service psychologists that I realised what had happened to me. With support from these people I have started to cope more with my symptoms and have recovered memories so far suppressed. 16(4) seems to cover this claim as I filed for PTSD when diagnosed with this by psychologist Peter Nelson and Dr M Welch MD".
25. The applicant lodged his claim for compensation on or about 24 January 2002. This was only a matter of weeks after he first became aware that he may have a compensable injury or disease. A claim is also notice. (See Comcare v Luck (1999) 29 AAR 403).
26. A failure to understand or appreciate the symptoms of an injury or disease and their cause has been recognised as a reasonable cause for want of a notice or a claim. (see the discussion by Kiefel J in Banks v Comcare [1996] FCA 1490 and also the decision of this Tribunal in Tralongo and MRCC [2004] AATA 1242).
27. The reasons for the applicant's failure to promptly report the incidents of physical and sexual abuse whilst at Leeuwin are explained to the Tribunal's satisfaction in the evidence before it. The prevailing culture at Leeuwin clearly discouraged the reporting of mistreatment of the kind the applicant was subjected to. There are well recognised and complex reasons for a young person not reporting sexual abuse. (see Dr Sale's explanation at p.208 of the Transcript)
28. The Tribunal concludes that there is present in this application a "reasonable cause" within the meaning of that term in section 16(1)(i) and (ii) of the 1930 Act.
29. As the delay in giving notice and making a claim was occasioned by a reasonable cause it is not necessary to further consider the question of prejudice.
30. As far as the "disease" claim is concerned we concludes on the facts that the provisions in section 16(4)(a)(ii) and (b)(ii) are satisfied. The notice was given "as soon as practicable" and the claim made "within six months after the employee first became aware that he was suffering from the disease".
31. The applicant's claim for compensation was therefore properly before the original decision-maker and can now be considered by this Tribunal on its merits.
DOES THE APPLICANT SUFFER FROM AN INJURY OR DISEASE WITHIN THE MEANING OF THOSE TERMS IN THE 1930 ACT?
32. The applicant alleges that in the first 12 twelve months of his service at Leeuwin, but primarily in the initial 6 months, he was assaulted, harassed and intimidated on numerous occasions by other recruits. He alleges that he was also subjected to sexual abuse by a navy appointed "sponsor" who he stayed with on approved weekend leave from Leeuwin.
33. It is claimed that as a result of these incidents the applicant has suffered a mental injury or disease namely either post traumatic stress disorder or a personality disorder.
BACKGROUND FACTS
the applicant's early life
34. The applicant spent his childhood in England. The evidence indicates a relatively happy childhood and normal upbringing. He attended grammar school in Doncaster England and was a reasonably good student. He had a number of friends and enjoyed camping and other outdoor activities. His father had served overseas in the army and later became a policeman. He had also worked as a debt collector. The applicant described him as a "disciplinarian" and said he was "pretty silent and uncommunicative". The applicant had a good relationship with his mother. The family, including the applicant's sister, Ann, moved to Australia and eventually settled in South Australia. This was in 1966 or 1967. He was then about 14 years of age. The applicant had always been keen on joining the navy. He joined the Royal Australian Navy on 1 October 1968 at the age of 15 years and 6 months. Shortly afterwards he travelled to Leeuwin in Western Australia to undertake his recruit training.
the incidents at leeuwin
35. The assaults, harassment and intimidation included the following:
·Punches to the face and other parts of the Applicant's body (and that of other new recruits) by more senior recruits and by recruits at the Applicant's level.
·The paying of "protection money" or handing over cigarettes to senior recruits under duress. If the Applicant refused he was assaulted.
·After meals the Applicant was grabbed on numerous occasions and told he was to carry out tasks for senior recruits. Often he was hit in the process. Tasks that he was required to carry out were washing dishes, scrubbing floors, mopping and the like. The Applicant resisted this system, and was bashed as a consequence.
·Frequent physical beating in his dormitory at night. As a result of these assaults the Applicant suffered bruising.
·Being compelled to run a gauntlet in the dormitory, whereby senior recruits bludgeoned the Applicant with pillows filled with heavy boots and books. As a result of this incident the Applicant was injured and suffered bleeding from the nose, a split lip and bruising over his body generally and to his back in particular.
·Sexual assaults on 2 occasions, whereby the Applicant was stripped of his clothing and had boot polish applied to his genitals on one occasion and a muscle treatment compound called Deep Heat applied on another occasion.
·Being pushed to the back of meal queues. If the Applicant resisted he would be assaulted, either on the spot or after meals, when a group would wait for him and other recruits and assault them. The Applicant was assaulted numerous times in this way.
·The Applicant was frequently assaulted because he was different. He had a strong Yorkshire accent and was of slim build.
·On at least 2 but possibly 4 occasions the Applicant was stripped naked, thrown into a cold bath and scrubbed with steel wool and hard scrubbing brushes.
36. The applicant states that he was never involved in assaulting or bullying anyone else at Leeuwin except that on one occasion after being whipped with a wet tea towel by a recruit named Pratt he responded by stabbing Pratt in the arm. This resulted in Pratt having some stitches in the wound. That incident was never reported. Kieth Pratt gave evidence at the hearing.
37. There is evidence before the Tribunal of a pervasive general culture at Leeuwin of "bastardisation" of new recruits which included assaults, bullying, intimidation and victimisation of a kind which the applicant says he was subjected to.
38. After considering the applicant's evidence and all of the relevant material before us we are satisfied that the applicant did suffer the assaults, harassment and intimidation whilst a recruit at Leeuwin as he alleges. The allegations made by the applicant were consistent with the general culture of bastardisation present at Leeuwin. This unacceptable and wrongful conduct was obviously condoned by those responsible for the well-being of these very young recruits.
sexual abuse by sponsor
39. The navy arranged for sponsors to take young recruits from Leeuwin into their homes for weekend leave.
40. The applicant states that he was sponsored by a single man who lived with his mother. He cannot recall the name of this sponsor although he has made enquiries to try and find out the person's name. He said there was only one bed available to him in the house. It happened to also be the male sponsor's bed.
41. When sleeping in the sponsor's bed the sponsor on at least two occasions fondled the applicant's penis. It is possible the sponsor administered a drug to the applicant in a cup of hot chocolate prior to bedtime. The applicant believes that on two occasions the sponsor may have raped him whilst he slept in the bed.
42. When he was a passenger in the sponsor's vehicle the sponsor frequently touched the applicant on his leg and/or genital area. On one occasion in the back of the sponsor's panel van the sponsor placed the applicant's hand on the sponsor's penis and fondled the applicant's penis. The sponsor also attempted to rape the applicant in the back of the panel van.
43. The applicant says that he did not report these crimes to anyone at Leeuwin as he feared that he may be assaulted. Also the officer he would have to report to and the sponsor had mutual friends.
44. Although there is no corroborative evidence and there have been variations in the accounts provided by the applicant to medical practitioners and counsellors and others about the details of the sexual assaults we are satisfied that the applicant did suffer sexual abuse by his navy approved sponsor as claimed.
the applicant's career in the navy
45. After leaving Leeuwin the applicant was posted to HMAS Vampire. He said that he had begun drinking at that time and frequently drank in hotels in Sydney and wherever the ship went. He said that he was drunk whenever he was on shore leave. After three months or so on Vampire he deserted with three other young men in Brisbane. He was absent from 26 April 1970 till 21 July 1970. He and the other sailors involved obtained casual jobs. He gave himself up and on the 30 July 1971 he was sentenced to 48 days punishment. He spent some time in the cells.
46. In August 1970 the applicant was posted to HMAS Cerberus and remained at that base until 18 January 1971. He underwent an engineering course and then on 18 January 1971 was posted to HMAS Supply, an oil tanker. He served on HMAS Supply for approximately five years.
47. Whilst serving on HMAS Supply the applicant was involved in a fight at the Wheatsheaf Hotel in Hobart with a Lieutenant Thierderman. The applicant was court-martialled and on the 3 December 1974 was sentenced to 28 days detention.
48. He was later posted to HMAS Nirimba from 12 January 1976 until 10 October 1977. This was the navy apprentice school at Quakers Hill in Sydney. He said he ran the cafe at Nirimba for about 12 months. The applicant said he commonly used drugs when he was at Nirimba although he first used drugs when he was actually serving on HMAS Supply.
49. In 1977 he was posted to the aircraft carrier HMAS Melbourne. He spent about a year on that ship and was in charge of fuel and fresh water handling.
50. On 21 August 1978 he was posted to HMAS Kimbla which was an oceanographic vessel. He then resigned from the navy in 1979.
after the navy
51. Before leaving the navy the applicant had met Robyn Whittle. They initially lived together in Sydney. After leaving the navy he and Robyn moved to Dromedary in Tasmania. They lived there together for some months. They later lived at Magra and then at New Norfolk. The applicant worked as a postman for five or six years based at Glenorchy initially and then at New Norfolk.
52. Both the applicant's parents died in England on the same day in October 1980. His mother died of a heart attack and the father committed suicide later that day. The parents had returned to England in 1970 soon after the applicant had completed his period of training at Leeuwin. He did not see his parents again before they died.
53. The applicant married Robyn Whittle in 1981 in New Norfolk. There are two children from the relationship.
54. In November 1984 the applicant and his wife purchased a rural property at Kellevie. They moved there to live however in 1986 the marriage failed and they then commenced to live separately.
55. Apart from his work as a postman for some 6 years at Glenorchy and New Norfolk the applicant had also obtained casual work through the late 1980's and early 1990's with his ex-wife's father, Tasman Whittle, at GT Tyres in Moonah. He personally built the family house in New Norfolk and also a house on the property at Kellevie. He had also worked as a casual rigger for a period and on construction sites and also had been engaged cutting fire wood. In the late 1990's the applicant worked as a youth worker with the Sorell Council. This was the last paid work the applicant was engaged in.
56. In or about December 2001 the applicant met Ms Anne Nalder, a Commonwealth Rehabilitation Service case manager. They met by chance at the Trout Hotel in North Hobart. Ms Nalder asked the applicant what he did for a living and he mentioned that he had served in the navy and on HMAS Leeuwin. He was later referred to Mr Peter Nelson, of the Vietnam Veterans' Counselling Service. He believes this was either late 2001 or early 2002. Later Ms Nalder referred the applicant to Dr Welch. Dr Welch saw the applicant on 13 February 2002 and diagnosed Post Traumatic Stress Disorder. On 11 June 2003 the applicant obtained a disability support pension for PTSD.
injury and/or disease?
57. Section 9(1) of the 1930 Act provides as follows:
"If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule in this Act"
58. Section 4(1) of that Act "injury" means:
"any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury".
59. Section 10(1) of that Act provides that:
"Where -
(a) an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment".
60. Section 4(1) defines "disease" in the following terms:
"includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease".
61. There is no definition of "mental injury" in the 1930 Act. Some guidance is provided by the decision in Re Hairis and Comcare (1991) 23 ALD 379 when the Tribunal said "... a direct injury to the brain would be a physical injury, whilst something occasioning harm to the mind would be a mental injury". (Para 51)
62. Assaults in the workplace may not be "accidental" events in the ordinary meaning of the word but they have been held to be an "injury by accident" for the purpose of workers' compensation. (see Weston v Great Bolder Gold Mine Ltd (1964) 112 CLR 30 and also Frazer and Military Rehabilitation and Compensation Commission [2004] AATA 1403. The circumstances in Frazer were markedly similar to those in the present case).
63. Mr Morgan properly conceded that any mental injury caused by the sexual abuse by the sponsor arose "out of or in the course of" the applicant's employment. (See Hatzimanolisis v ANI Corporation Ltd (1992) 173 CLR 473).
64. The disease provisions in the 1930 Act were much narrower than exist in the present Act. As can be seen in paragraph 59 above the disease must be due to the "nature of the employment". It must be incidental to the nature or character of the employment and not a condition which arises out of the particular experiences of the employee concerned. (see Commonwealth v Bourne (1960) 104 CLR 32, Commonwealth v Rutlege (1964) 111 CLR 1 and Connair Pty Ltd v Frederiksen (1979) 142 CLR 485).
65. Even though there is persuasive evidence of a culture at Leeuwin condoning "bastardisation" of the kind experienced by the applicant, in the opinion of the Tribunal any resultant disease cannot be said to be due to the "nature" of the applicant's employment. Any disease he may suffer is really due to the particular treatment he received at the hands of fellow recruits. The sexual abuse by the sponsor is obviously not due to the nature of the applicant's employment. Although we have concluded that the "disease" provisions in the 1930 Act do not apply the Tribunal nevertheless will proceed to consider whether the applicant is suffering from any compensable mental condition whether it be a mental injury and/or a disease.
66. This has been a very lengthy hearing. A vast amount of oral and written evidence is now before us. Because of that quantity of evidence and the nature of the applicant's compensation claim we intend to now detail portions of the evidence which we consider particularly relevant to the central issue. That issue is whether the applicant has suffered a mental injury and/or disease as a result of the mistreatment and abuse he was subjected to whilst a recruit at Leeuwin. As the Tribunal has already found that Mr Farnaby was subjected to sexual abuse by his sponsor and also assaults, harassment and intimidation at Leeuwin as claimed we do not consider it necessary to detail the evidence of Messrs Frazer, Purchase, Pratt and Harley. We have, of course, given consideration to all of the evidence provided by those witnesses.
67. The Tribunal will now consider the medical and other evidence to determine whether we are satisfied to the standard required that the applicant is suffering from a compensable mental condition whether it be an injury or a disease.
IS THE APPLICANT SUFFERING A MENTAL INJURY OR DISEASE?
the applicant's evidence
68. On the issue of symptoms of PTSD Mr Farnaby in his statement of 23 February 2005 details the following:
·The first symptoms of the conditions were in 1981. He then experienced flashbacks to some incidents at HMAS Leeuwin. He tended to be isolated from people. Since that time, he notices that he tends to avoid crowds and, that through the years, he has had ideas of suicide and has felt depressed.
·He has had problems sleeping, had nightmares and been prone to angry outbursts ever since his first few weeks at HMAS Leeuwin. Further, Mr Farnaby states that he has felt anxious and has abused alcohol. Mr Farnaby also records that after HMAS Leeuwin, he had flashbacks to sexual abuse, running the gauntlet, a stabbing incident, to bashings and to harassment. These events were without a time or place.
·He finds it very difficult to talk to people about his experiences at HMAS Leeuwin and, in particular, issues of sexual abuse. Mr Farnaby concludes by stating that in 1981 he tried to tell his wife about these events but failed. After 2001 he had talked very little about the incidents, but prior to 2001 virtually not at all.
69. In a further statement dated 16 April 2007, Mr Farnaby gave further details of the sexual abuse by the sponsor. He acknowledged that he felt ashamed and humiliated by these events, and was resigned to never communicating the occurrence to any person. Mr Farnaby records that he has never talked about certain aspects of the sexual abuse prior to June 2006 and, on that occasion, it was after viewing records of a medical examination conducted by the Australian Government Health Service.
70. In oral evidence, Mr Farnaby added the following:
·The episode in the van was his first sexual experience, and was with a man he didn’t know and didn’t particularly like. As a consequence, Mr Farnaby said he felt scared and was terrified.
·That he first told Ms Nalder about the sponsor touching him on the groin and leg in the panel van and the instances in bed in 2002.
·He found it very hard to talk about such things as he felt both guilty and embarrassed but, as to the detail of the assault in the panel van, he was only able to talk about this at the time of preparing his case, and more particularly in his second statement of 16 April 2007.
·That he revealed other happenings at HMAS Leeuwin slowly to Ms Nalder in 2002, then to Dr Welch and to Mr Nelson, commencing with the bullying. He had difficulty talking about the stabbing incident.
·He and his wife purchased some land at Kellevie in November 1984 while they were living at New Norfolk. Shortly afterwards they moved to live on the property in a caravan while Mr Farnaby built a house.
71. Further in oral evidence, Mr Farnaby, when asked questions concerning his consultation with Professor Pridmore on 13 September 2004 (Exh R2), stated:
·He refused to co-operate in a request by Professor Pridmore to participate in a physical examination. This was because of the manner in which the request was made, the physical openness of the consulting area and the presence of a female.
·He did not wish to provide Professor Pridmore with precise details of his particular experiences as he did not like him and considered him aloof and rude.
·He did state that he “dislikes knives, because he is afraid that he will stab someone.” He said that when he is near knives he has hallucinations and “sees blood everywhere.”
·He did use the word "flashbacks", as he could not find another word to describe the incidents. Mr Farnaby denied detailing the content of the flashbacks.
·He said insomnia had existed since he left Leeuwin.
·That he experiences panic attacks in social situations, together with palpitations, shortness of breath, sweaty hands and a desire to escape.
·He relives events that occurred at Leeuwin, including the violence, the assault in the panel van, the scrubbing and running the gauntlet. This occurs just before he goes to sleep.
72. Mr Farnaby, in response to questions asked by his counsel about Dr Sale’s report of 3 April 2007 (Exh A7), said that his symptoms included:
·Flashbacks, sleep difficulties, anxiety, depressed mood, irritability, poor concentration and forgetfulness. Mr Farnaby also agreed that there had been an improvement in his complaint of lethargy. This improvement was a result of a domestic relationship over the last four or five years.
·That in 2001/2002 he would rarely leave his accommodation. He spent a lot of time drinking alone in his room. At this time, and prior to meeting Ms Nalder, he did not socialise with anyone, although he used to attend a hotel each week. It was after the meeting with Ms Nalder that he realised that he needed to seek treatment. Mr Farnaby believed that he had PTSD after seeing Dr Welch in 2002.
73. In response to questions raised in response to Ms Strickland’s evidence, Mr Farnaby said that:
·He did visit his parents in Adelaide during the 1968/69 Christmas period.
·He did attend a technical school at Elizabeth prior to going to HMAS Leeuwin.
74. Mr Farnaby described the loss of a right front tooth while serving on HMAS Vampire in 1969. This loss was said to have occurred when Mr Pratt struck him with a fist when he was halfway out of the hatch. Mr Farnaby believed he was knocked out for a few seconds.
75. When answering questions asked in cross-examination, Mr Farnaby said:
·That he rarely drank when on board ship, but when on shore leave he would drink to excess. He had been drinking prior to the incident in a Hobart hotel in 1974, when he struck an officer. Mr Farnaby believed he started drinking to excess in the mid nineties when he was depressed and suicidal. He has continued to drink heavily . In 1997 he believed his level of drinking was 12 stubbies a night, plus a couple of litres of wine a day.
·He first sought treatment for his anxiety and stress disorders from Dr Welch in 2002. Mr Farnaby remembered seeking some treatment for an inability to sleep while serving at HMAS Cerebus in 1970. This is noted in the daily medical record of 12 November 1970 (Exh R3). Mr Farnaby also stated that for most of the time he was in the Navy, he was so exhausted that he could get to sleep. As a result there was no need for further treatment for his sleeplessness.
·He was unable to remember filling out the claim for compensation form in 2002, when he claimed that he was first aware of his injury in 1968, and first sought treatment in 1969.
·He first smoked marijuana at age 18 in Sydney, and thereafter on probably a monthly basis. He tried amphetamines at about age 20, and LSD a couple of times in his early twenties.
·That his flashbacks had been occurring since 1968. They are in the form of very vivid memories as though he was there (especially the image of the sexual assault in the back of the panel van). They have been occurring most nights since 1968, although it was worse after leaving the Navy, with the period around 2000 being the worst (flashbacks more often and more vivid). Mr Farnaby also detailed experiencing nightmares (reliving experiences about violence against him, including seeing blood and a knife) which became worse in the late seventies. Mr Farnaby also told of experiencing nightmares of no particular theme.
·He agreed he did continue to be picked up by his sponsor, in spite of the sponsor’s previous behaviour pattern. Mr Farnaby admitted to an absence of previous sexual experience or behaviour at that time, and stated that he did not much like the behaviour of the sponsor. Mr Farnaby believed he was a very submissive person at that time.
·With respect to the trip in the panel van to Geraldton, he did not know that it was going to be overnight. In relation to the details of the attempted rape in the panel van, Mr Farnaby said he had been too scared and ashamed to detail it to his lawyers when preparing his statement in February 2005. Mr Farnaby also said he believed reporting such behaviour to the Navy would result in him being bashed and called a "poofter".
·He last saw his parents at Christmas 1968. He was unaware of the date of his mother's death. He had been told that his father died a few days later. His parents had never mentioned receiving letters about the sponsorship to him. He had not discussed sponsorship issues with his parents. Mr Farnaby believes he may have told his sister at a later time that his sponsor was a single man. He had never discussed with her the behaviour of the sponsor.
·That he had threatened suicide with a shot gun and had thoughts about gassing himself a couple of times and walking in front of a car. This occurred while he was in the Navy. It was towards the end of the seventies.
·He met his now ex-wife in 1974, and lived with her from 1975 until they married in 1981. He said that during the time of his marriage he had trouble sleeping.
·After leaving the navy he worked as a postman for five or six years while living in New Norfolk. Mr Farnaby also stated that he had built a house at New Norfolk.
·That he left his job as a postman because he wanted to move into the bush at Kelllevie. He again built a house for the family at Kellevie.
·After his marriage break-up, he moved to various types of accommodation over the next three to four years. He then moved to Commercial Road where he remained for three to four years.
·He was told of his mother’s death by a woman at the international call centre switchboard. This was after he received a telegram to ring the call centre. Mr Farnaby said he was shocked and saddened by the news, but he coped well. He then rang his sister who told him that both parents had died, and that his father had committed suicide. Mr Farnaby did not feel it necessary to attend the funerals in 1980.
·That he had been treated by Dr Roffe and at the Sorell Clinic after leaving the Navy. He had never discussed with Dr Nylander, or any other doctor at the Sorell Medical Clinic, between 1986 and 2000 of his dreams, nightmares, flashbacks or mental health, nor did he seek any medication for sleep.
·He had worked for his father-in-law at GT Tyres at Moonah as assistant manager for six to eight years, after his separation from Ms Kim and the sale of Kellevie property in 1986. By 1997, he was drinking heavily and smoking marijuana very occasionally. Mr Farnaby stated that around 1997 he did some work as a part-time rigger. Mr Farnaby also acknowledged that he had been an A grade eight ball player in the nineties. Mr Farnaby said that he also worked as a leading hand in cabling operations, and that he had attended work hung-over or had not attended work for the same reason.
·He said his relationship with his ex-wife (Ms Kim) is not particularly good. Mr Farnaby disagreed with his ex-wife where, in her statement, she stated that “obviously he was devastated and I do not think Mark has ever really gotten over this” (reference to death of parents). Mr Farnaby noted that as a normal adolescent boy he "missed", as opposed to "suffered", when his parents returned to live in England in 1970. Mr Farnaby applied to join the Royal Navy in 1970, but said he withdrew his application when he found out that he would have to go through another Leeuwin-like experience.
·That his father was a hard man but they did get on well. He was a disciplinarian, having served in the army during the war, as a policeman and a debt collector. Mr Farnaby acknowledged that his ex-wife wrote most of the infrequent letters to his mother, but was unable to remember any content. Mr Farnaby agreed that he saw his sister when she came to Tasmania in November 1983. She had wound up the parents’ estate. He received nothing from the estate but he didn’t want anything, as he was living a very simple life at that stage. Mr Farnaby agreed that his ex-wife did move out for a period prior to his sister and her child returning to England in 1983. He did not often keep in contact with his sister after she left.
·He said he never told his ex-wife that he had been sexually abused while in the Navy, and that the first person he told of such sexual abuse was Ms Nalder. That occurred a few months after he had first met her. Nevertheless, Mr Farnaby agreed that he had told his ex-wife that he had had a hard time after joining the Navy, and that he cannot remember having mentioned to her circumstances about events when he was at HMAS Leeuwin, despite his ex-wife’s statement to the contrary. Mr Farnaby said that he continued to have waking dreams about the attempted rape every night during his marriage.
·He did tell Dr Walker in March 2002 (Exh R7) that:
§“always felt depressed and suicidal since assault at naval recruitment camp 12 months. Assaulted physically and sexually by other recruits and more senior officers recurrent over months. Was also sexually molested by his sponsor in the van over several months.”
§“Problems with relationships, married once for about 10 years, divorced about 1994, grown up kids, no real relationships since then, doesn’t relate well to others, always anticipates will die or not be around.”
§“Mood, I get angry a lot, I feel like shit, sometimes mood okay, cries a lot”.
·He acknowledged he had his difficulties at HMAS Leeuwin including doing physical things (push-ups), and turning up unwashed, or in unironed clothes or uncleaned shoes for which the rest of his class (4 Alpha) were punished. Similarly, Mr Farnaby agreed that his class work may not have been up to scratch on occasions. Again the class being punished.
·His memory of the knife incident at HMAS Leeuwin is different in detail to that described by Mr Pratt. Mr Farnaby confirmed that he did tell Professor Pridmore that he stabbed the person in the guts, as that is consistent with the violent nightmares he has experienced.
·That he has no memory of the name of his sponsor or the sponsor’s mother and the location of the house in Perth.
·He was unable to remember the names of the other three sailors who were with him when he was absent without leave from HMAS Vampire in 1970. They were accommodated in a boarding house in Brisbane and undertook casual work making pallets.
·That the only communications he has had with Mr Frazer have been by way of written statements. Mr Farnaby admitted to having read a summary of the Rapke Report in 2003.
·He completed a diploma of community service at TAFE in 1999/2000 involving a number of subjects over the two year time frame. He later did voluntary and then paid work at Dodges Ferry and Primrose Sands Community Services.
·He is unable to remember having any time off work for mental problems while working as a postman.
·That his night flashbacks did not become evident until 1981. They then became worse, he also had insomnia. At that time, he considered himself anti-social and very irritable, and was having vivid flashbacks and nightmares. (Exh R8).
76. In response to a question from the Tribunal, Mr Farnaby described the panel van incident in the following terms (Transcript p142-143):
And what happened then?—“-Oh, we had a look around outside, you know, just checking things out and whatever and a bit of a chat and then sort of when it was fully dark we got into the back and said goodnight or whatever and I was trying to get to sleep when he started touching me and I’m saying no, you know, and then he tried to rape me. He jumped on top of me at first and tried to push my legs up and then sort of I was kicking and screaming and then turned over – I remember being turned over as well, so I was on my hands and knees. I’m fighting and – so this seemed to go on for hours, but it was probably just a couple of minutes sort of things, yes. It was quite intense. He was very aroused I suppose, yes”.
So what happened after that occurred? –“-Well, there was lots of kicking and screaming and punching and I ended up down near the doors of the panel van with a blanket around me and he got in the front of the panel van, you know, climbed over the seats”.
He got in the front? –“-He got in the front, yes. Saying to me it’s all right, you know, sort of I didn’t mean it, you know, don’t tell anybody, blah, blah, blah, and that went on for an hour or so, you know, he was trying to calm me down and then I stayed in the back and he stayed in the front and when it got light we drove back and he dropped me off at Leeuwin”.
Evidence of Ms Strickland
77. Ms Strickland, the sister of Mr Farnaby in her written statement (Exh A10), detailed the following:
·That she had little contact with Mr Farnaby after he joined the Navy in 1968.
·That she and Mr Farnaby had a happy childhood, although her father was a little on the strict side. Ms Strickland said that she was unaware of any dramatic or significant event in Mr Farnaby’s life before he joined the Navy.
·That her parents died suddenly in October 1980 and this was a major trauma for her personally. She sent a telegram to Mr Farnaby and he phoned back. Ms Strickland remembers Mr Farnaby saying he felt “odd or strange”. Ms Strickland said after that time she and Mr Farnaby did not speak of the deaths.
·That she did visit the Farnabys and stay with them for a period of six weeks in November 1983.
78. In oral evidence, Ms Strickland said:
·After the visit in 1983, she may have spoken to Mr Farnaby in late 1987 to advise of the birth of a daughter, but had no other contact.
·That she had seen Mr Farnaby in Adelaide briefly for one or two days before she returned to England in late 1970.
·Her parents had planned to return to England but her brother was adamant about joining the Navy and staying in Australia.
·That when she visited Australia in 1983, she was not aware of any apparent difficulties in Mr Farnaby’s life, although she observed that his wife seemed the stronger character of the pair.
·They did not speak about their parents’ deaths during her visit.
·Mr Farnaby never talked to her about his experiences at HMAS Leeuwin nor anything in relation to a sponsor.
·When she stayed with the Farnabys in Tasmania in 1983, she observed that her brother drank socially and that they entertained and went to parties.
Evidence of Ms Kim
79. In a statement dated 19 June 2006 (Exh R27), Ms Kim, the ex-wife of Mr Farnaby stated:
·That she had first met Mr Farnaby in 1974/1975, and then relocated to Sydney. Ms Kim said she moved back to Tasmania in 1979, with Mr Farnaby following after he left the Navy towards the end of 1979. A child was born in 1981, they married in 1982, had another child in 1983 and divorced in 1997.
·Mr Farnaby was an easy-going, tolerant, agreeable type of person, but was also very insecure, soft and nervous. Ms Kim believed she had the stronger personality, and when Mr Farnaby was confronted he would shut off and refuse to communicate.
·Mr Farnaby got on with people, although he was not a very social person. He was intelligent and talkative about world events.
·She did not observe Mr Farnaby being violent towards others, although he may have been physical with their son on occasions.
·His reaction to different things was not outside what was reasonably normal for a man of his generation. He could be passionate about some things, but was very indifferent about a lot of things. He was not emotionally or mentally unstable.
·During their time together he admitted he had some mental problems, with the outward sign being that he would shut off. He could not handle any kind of confrontation.
·That his parents’ death affected Mr Farnaby both mentally and emotionally.
·Mr Farnaby did not have a good relationship with his father – that he suffered when the family returned to England.
·Mr Farnaby did not relate to his sister very well.
·She suspected that something had happened to Mr Farnaby in the Navy in a sexual way.
·That Mr Farnaby did not have time for their children, despite her encouragement.
·In the 1980s Mr Farnaby was not coping; he would leave the house for a couple of days. In 1984 he got his shotgun and threatened to shoot himself.
·That Mr Farnaby loved alcohol. He drank beer most days but not to excess. Both she and Mr Farnaby continued to smoke marijuana until they separated. Ms Kim did not believe that Mr Farnaby had an excessive number of days off work.
80. In oral evidence, Ms Kim stated:
·That on return to Tasmania in 1979, she and Mr Farnaby lived together at Dromedary for a few months before moving to New Norfolk, where they built a house with the help of friends.
·She believed the reason that Mr Farnaby had psychiatric problems was associated with his upbringing. He would hold emotional problems to himself.
·That the decision to move to Kellevie was mutual, as they both wanted to go bush to do some farming (raise cattle), grow marijuana and do some wood cutting.
·That Mr Farnaby was employed in Sorell in a small solo outlet for her father’s tyre repair business based in Moonah.
81. In oral evidence in response to questions asked in cross-examination, Ms Kim stated:
·That she and Mr Farnaby rented a house in a bush setting at Dromedary for six months in 1980. They then rented a house in Magra, again in a bush setting for six months. During both periods, Mr Farnaby worked as a postman at New Norfolk, starting work around 6.00 am and finishing around 1.00 pm.
·They then purchased five acres of land at New Norfolk. The land had a shed on it in which they lived, while they constructed a house over a period of a year or more. They remained on the property between 1981 to 1984, with the first two years living in the shed with two young children. Ms Kim confirmed that Mr Farnaby had two particular friends during this period. Mr Farnaby was a keen motor cyclist, owning at least one machine and often enjoying solo rides, particularly when times were difficult. Ms Kim affirmed that she was the social one within the marriage, with Mr Farnaby having two particular friends, who would attend at barbecues held on the property. There was plenty of alcohol consumed and cannabis smoked.
·They then moved to a 20 acre block at Kellevie, in November 1984. They initially lived in a caravan and a tent. Ms Kim said that she was keen to be a farmer with six children. Ms Kim detailed the further construction of a house by Mr Farnaby for next to nothing in cost. Their activities included stock grazing, Mr Farnaby undertook woodcutting trips, as well as attending the tyre repair activity in Sorell for her father. Ms Kim agreed that they were living on the breadline during the period.
·That their very basic house was built over a six month period on a site at the back of the block, the nearest neighbours some 200 metres away. The property was sold in 1987 when they separated.
·Any impression she had about Mr Farnaby’s father was the result of small pieces of information told to her by Mr Farnaby. In relation to Mr Farnaby’s feelings about being away from the family, Ms Kim stated they were essentially inferences and observations made by her. Ms Kim believed Mr Farnaby’s mother was more missed by the Mr Farnaby, as she was the main family member he talked about. Ms Kim said that Mr Farnaby’s sister was shy and less sociable than Mr Farnaby. She considered the pair to have little in common. She stated that Mr Farnaby did not relate well to his sister and that Ms Kim was by the end less so and asked her to leave.
·After he left the Navy, he got more depressed. She having observed periods of depression whilst Mr Farnaby was in the Navy. Ms Kim defined for the Tribunal her meaning of the word ‘depressed’ to include “wouldn’t talk”, “he’d be within himself”, “listen to depressing music”, “didn’t communicate at all”.
·They were living at Dromedary when Mr Farnaby heard about the death of his parents, and it was after that that Ms Kim thought Mr Farnaby should get help.
·She was concerned that he had not dealt with his parents’ deaths (‘put in the background’, “didn’t have a time of mourning’).
·Sometimes he wouldn’t get out of bed until two o'clock in the afternoon, which she attributed to laziness. Ms Kim never observed that Mr Farnaby suffered problems of getting to sleep.
·Mr Farnaby found it difficult to talk about his experiences at HMAS Leeuwin, although such topics (initiation ceremonies and this sort of thing) would come up in conversation with different guys in the Navy.
·Mr Farnaby and her father got on very well, with the latter being a benevolent employer towards Mr Farnaby.
82. In answer to questions from the Tribunal, Ms Kim stated:
·It was a mutual decision to move to Kellevie.
·That Mr Farnaby was a sociable person, with card games every Friday night right up to September 1987.
·There was normal social activities with the children, but Mr Farnaby would not get very involved with the care of the children at home.
Evidence of Dr Welch.
83. In a medical report dated 28 September 2004 (Exh A18) Dr Welch, a general practitioner, stated that he saw Mr Farnaby on three occasions in 2002, after referral by a CRS rehabilitation provider. In a consultation dated 13 February 2002, Dr Welch records a relevant history of Mr Farnaby experiencing sexual abuse by an older male sponsor, as well as physical abuse by older school mates during student initiation at HMAS Leeuwin. Dr Welch describes Mr Farnaby as feeling angry and upset since, with frequent symptoms of lowered mood, anxiety and panic, suicidal ideas, social withdrawal, insomnia, labile emotions and even dissociative symptoms. Dr Welch records Mr Farnaby as claiming he used alcohol frequently to diminish these symptoms. Dr Welch considered Mr Farnaby to have features of a depressive disorder and a post traumatic stress disorder. Dr Welch records prescribing Lovan (an anti-depressant) and referring him to a psychologist (Mr Nelson) for therapy.
84. In oral evidence, Dr Welch said that he had no recollection as to whether Mr Farnaby gave details of the nature of his sexual abuse and, as it was an initial general fact finding consultation, he may not have explored that subject in detail. Dr Welch said that he understood the symptoms nominated in his written report may, in part, be his medical interpretation of what he was told, but it was his belief that such symptoms as anger and being upset had existed since Mr Farnaby’s time at HMAS Leeuwin. As to the other symptoms, he was unaware as to when they commenced. Dr Welch recorded that Mr Farnaby said that he suppressed the memories until very recently.
Evidence by Dr Roffe
85. In a statement dated 4 April 2008 (Exh A20), Dr Roffe, a general practitioner, said that Mr Farnaby had been a patient of his since 1994. Dr Roffe noted that at some time in 2002, he had been informed that Mr Farnaby had been diagnosed as suffering PTSD. In oral evidence, Dr Roffe confirmed that on 24 June 2002 Mr Farnaby, during a consultation, informed him of a psychiatric diagnosis made by Dr Welch, as well as seeking treatment for an anal disorder.
Evidence by Dr Sale – Consultant Psychiatrist
86. Dr Sale conducted an assessment of Mr Farnaby on 28 May 2003. In his report dated 28 May 2003 (Exh A19), he detailed a general history of Mr Farnaby’s life. Dr Sale noted that Mr Farnaby had suffered from no significant general health problems. In relation to his psychological health, Dr Sale noted that Mr Farnaby’s most prominent difficulty has been his excessive use of alcohol which, although long standing, had yet to cause general health consequences. Dr Sale noted that there was no particular pattern to Mr Farnaby’s excessive drinking.
87. Dr Sale also noted that Mr Farnaby complained of chronic insomnia – both initial and middle insomnia. Further, Dr Sale records that sleep is interrupted by nightmares of no particular theme.
88. Dr Sale records Mr Farnaby complaining of:
·periods of depression and irritability;
·periods in which he becomes markedly withdrawn and is reluctant to leave his dwelling – this appearing to have been a factor in his tendency to often live in remote locations.
·suicidal ideation and episodes of self-harm (eg an attempt to gas himself two years ago);
·feelings of tiredness and lack of energy.
89. Dr Sale said Mr Farnaby had told him of running the gauntlet during the initiation ceremony at HMAS Leeuwin, and of the bashings and scrubbings on about four occasions. In addition, Dr Sale details Mr Farnaby as having experienced sexual abuse by his sponsor in his bed and car, although his recall of specific events was extremely limited. Dr Sale records Mr Farnaby as stating that he finally disclosed this matter to Peter Nelson at VVCS.
90. Dr Sale in comment made the following observations:
·Inevitably the experience of sending a 15 year old boy to a far distant naval station would be life changing as it occurred at a time of considerable developmental change.
·Mr Farnaby shows many of the features one associates with the long term effects of sexual abuse eg. social isolation, substance abuse and periods of depression.
·Such problems could have arisen for other reasons, but this is such a commonly occurring pattern that, on the information available, one would see this probably linked to those experiences at HMAS Leeuwin.
·He believed that most professionals would probably consider Mr Farnaby to suffer symptoms best described as a chronic post traumatic stress disorder, complicated by alcohol abuse.
91. In a further report dated 6 August 2003 (Exh A20), Dr Sale concluded that Mr Farnaby’s alcohol abuse was secondary to the abuse he experienced at HMAS Leeuwin, together with a non-specific contribution arising out of spending time in the navy, where alcohol consumption was sub-culturally the norm. Further, it is probably a form of self-medication, in that it provides temporary relieve of tension and insomnia, symptoms commonly associated with PTSD.
92. Dr Sale confirmed his opinion in a further report dated 18 May 2005 (Exh A21), following his review of Mr Farnaby’s statement of 23 February 2005 and Dr Welch’s report of 28 September 2004.
93. In a further report dated 12 August 2005 (Exh A22), Dr Sale notes that Mr Farnaby’s failure to raise complaints until relatively recently is far from uncommon. Dr Sale considered that the relevant factors were:
(a)Shame and embarrassment associated with sexual abuse.
(b)The culture prevailing at HMAS Leeuwin that inhibited complaint.
(c)A more general social atmosphere that has only recently become conducive to individuals revealing sexual abuse.
94. In another report dated 9 June 2006 (Exh A23), Dr Sale:
·Said that he had previously expressed some equivocation about the specific diagnosis of PTSD, as the relevant events occurred many years ago, and the overall clinical picture has been confounded by chronic alcohol abuse.
·Acknowledges the diagnosis made by Professor Pridmore of personality disorder. He considers such a diagnosis to be a reasonable conclusion, although suggesting that they were attaching different clinical labels to similarly described situations.
·Notes that a personality disorder is a set of enduring maladaptive traits, with one needing a more longitudinal view of Mr Farnaby’s situation to be confident in making such a diagnosis.
·That Mr Farnaby meets the criteria nominated within DSM IV for the diagnosis of personality disorder. Nevertheless, his preference is to use the term post traumatic stress disorder, with personality disorder as a reasonable alternative formulation.
95. On 3 April 2007, Dr Sale provided another report (Exh A7), having again met with Mr Farnaby, and having perused further documentation. Dr Sale notes the following:
·Mr Farnaby has been living with a partner for four years and that Mr Farnaby acknowledges that he has improved.
·Mr Farnaby’s use of health providers is modest, while his alcohol use remains substantial but diminished – down to an average of six stubbies a night, with Mr Farnaby attributing his inability to stop drinking to his problems with sleep disturbance.
96. In this report, Dr Sale noted Mr Farnaby’s complaints of symptoms included:
· Flashbacks -
vivid, disturbing memories of a person he describes as a paedophile and an attempted rape, generally occurring as he is about to fall asleep.
· Chronic insomnia -
addressed by his use of alcohol and staying up late.
· Anxiety -
particularly in social situations or in crowds – expresses shortness of breath, perspires excessively and has palpitations. These symptoms have been present since the time he left the Navy.
· Periods of depressed mood -
much improved since 2003 – no longer feels guilty
· Irritability
· Concentration -
has been poor, but improved.
· Forgetfulness -
not improving.
· Lethargy -
can be poor, but no longer as bad as four or five years ago.
97. In general comment, Dr Sale noted that Mr Farnaby’s situation appears to have improved since the time of his original assessment. He noted Mr Farnaby to be in a stable relationship, some reduction in level of symptoms, using less alcohol and had discontinued taking an anti-depressant. Dr Sale continued to believe that the events at HMAS Leeuwin caused the damage experienced by Mr Farnaby and that such has then been maintained and extended by substance and alcohol abuse.
98. In a report dated 13 April 2007 (Exh A31), Dr Sale commented in the following terms on the reports made by Dr Burges-Watson:
·Description of his living circumstances were different.
·Dr Burges-Watson’s assessment is particularly comprehensive.
·The former wife was a poor historian.
·That Mr Farnaby was less than co-operative at consultation by a second psychiatrist.
·Psychiatric disorders are characterised by subjective as opposed to objective complaints.
·Not able to provide an explanation as to why Mr Farnaby gave a different account of the content of his nightmares.
·Mr Farnaby’s complaints were of ‘flashbacks’, but he did not consider the description he provided as being of that nature, but more in the form of an intrusive and unpleasant memory.
·Disagrees with the remark that Mr Farnaby’s situation is not one that causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
99. In a report dated 14 March 2008 (Exh A24), Dr Sale observes that Mr Farnaby’s current complaints were:
·Remains avoidant, anxious when amongst others.
·Becomes anxious readily (hair-trigger situations).
·Experiences nightmares typically twice a week, the content of which reflects sexual assault
·Low energy and drive.
·Concentration and memory are reasonable.
100. Dr Sale concluded that there had been no particular change in Mr Farnaby’s condition: he remains socially avoidant with a constricted affect, who is likely to be alcohol-dependent. Dr Sale believed Mr Farnaby had a limited work capacity because of his alcohol use and his problems with anxiety.
101. In a report dated 26 March 2008 (Exh A32), Dr Sale addressed Mr Farnaby’s employment since leaving the Navy. Dr Sale made the following comments:
·Mr Farnaby left his employment as a postman after five years because New Norfolk was growing too large and he was going through a bad patch.
·That after about two years he was employed by his father-in-law at Moonah type outlet with a non-continuous period of employment over eight years.
·Two, two month periods of employment at Boyer, one as a trainee rigger and the other as a trade's assistant.
·Employment as a youth worker 1998-2000.
102. Dr Sale considered that the record of employment suggests a very patchy involvement in employment since 1986.
103. In oral evidence, Dr Sale detailed an extensive experience in psychiatry and, in particular PTSD, and personality disorder and co-morbidities which exist with PTSD (alcohol abuse). Dr Sale remained reluctant about making a diagnosis of personality disorder in the absence of a longitudinal view of an individual. Dr Sale repeated his earlier written opinion that the diagnostic psychiatric manual (DSM 1V) does not adequately cover the clinical sequelae arising from sexual abuse in childhood. In such situations, Dr Sale contends that a person may present with the effects of a secondary substance abuse, insomnia, chronic pain or depressive disorder – such co-morbid conditions in effect masking in part the symptomatology of an underlying PTSD, with a more common pattern being a constriction of affect.
104. Dr Sale believed Mr Farnaby to have a rather constricted affect, with little sense of rapport on meeting. Dr Sale affirmed that Mr Farnaby’s problems with alcohol were reasonably likely to be secondary to the abuse at HMAS Leeuwin, as there was nothing else in his personal background that suggested he faced any particular risk of developing problems with alcohol. Dr Sale also emphasised that chronic abuse of alcohol will actually maintain insomnia, with alcohol being used to induce sleep and relieve tension. The induced sleep is not normal sleep and they tend to wake in the middle of the night.
105. Dr Sale stated the reasons why children often fail to disclose sexual abuse are complex and include:
·There may not be, on the first occasion, someone suitable to disclose to.
·Then as it goes on, they feel almost as an accomplice in something shameful, with secrecy being the path of least resistance, with the formulation of ‘the guilty secret’.
106. In relation to late disclosures of such ‘guilty secrets’, Dr Sale considers that there is no general pattern, with, on occasions, the disclosure being tentative or testing the waters type of disclosure. Dr Sale considered that there was a culture at HMAS Leeuwin that inhibited making complaints generally as well as specifically.
107. Dr Sale, in considering a diagnosis of personality disorder in Mr Farnaby, addressed the issues of cognition (no problem), affectivity (does have a problem), interpersonal functioning (does have difficulties as evidenced by a tendency to be somewhat isolative, and problems with his personal relationships). With such an appraisal, Dr Sale concluded that Mr Farnaby met diagnostic Criteria A(2), A(3) for a personality disorder. Further, Dr Sale considered that the condition has been enduring for many years; that this enduring pattern of behaviour (fecklessness) has led to periods of depression and repeated periods of suicidal ideation, which are outside the bounds of normal human behaviour. Dr Sale indicated that as regards a diagnosis of personality disorder, generally this should be evident during childhood/adolescence, with oppositional and behavioural problems, which is not apparent in Mr Farnaby’s case.
108. Dr Sale was of a view that physical examination of a person with a suggested sexual abuse history should be undertaken with extreme caution during a psychiatric examination, for medico-legal purposes, as it might seem to be unnecessarily intrusive.
109. Dr Sale was of the opinion that Mr Farnaby’s naval career was not a huge success, his occupational life patchy, and his family life has fallen apart. Dr Sale drew his opinion about Mr Farnaby’s naval career from his naval record and the lack of motivation detailed in a naval psychologist’s record of interview.
110. In addressing the criteria for the diagnosis of PTSD nominated in DSM – IV- TR, Dr Sale considered that the attempted rape in the panel van was a traumatic event, in that it was an offence which involved a threat to his physical integrity. In such circumstances, Dr Sale concluded that Criteria A1 for a diagnosis of PTSD was satisfied, as indeed was Criteria A2, by virtue of Mr Farnaby’s nominated response to the incident. Dr Sale considered that the other experiences to which Mr Farnaby was exposed at HMAS Leeuwin (gauntlet running, nuggetting and scrubbing), were harmful behaviours which would probably cause intense fear and a sense of helplessness. In relation to the patchy recollections of Mr Farnaby about sexual activities in the sponsor’s bed, Dr Sale believed that such recollections were too vague to do much with.
111. In addressing the issue of flashbacks, Dr Sale stated that Mr Farnaby reported a flashback type experience in his first interview which related to a knifing. (Such a comment is inconsistent with Dr Sale’s report of the first interview in which he describes nightmares of no particular theme, with no mention of a stabbing and/or knifing incident in the report). Dr Sale stated that at the second interview, the flashbacks were said by Mr Farnaby to relate to the sponsor and the attempted rape. Dr Sale was unsure as to whether they were flashbacks or intrusive memories. Dr Sale considered that Criteria B1 was met for the diagnosis of PTSD in that Mr Farnaby had recurrent and intrusive recollections of the event and that possibly Criteria B2 was met (recurrent nightmares). Dr Sale considered that Mr Farnaby met Criteria C4, C5, C6 in that he had diminished participation in significant activities, experienced feelings of detachment and estrangement from others and that he has a constricted affect, with periods of depression and irritability. Dr Sale considered that Mr Farnaby satisfied Criteria D2, D3 in that he reports difficulty concentrating and irritability as well as Criteria E and F (distress in social, occupational or other important areas of functioning, with the duration of such symptoms occurring over many years).
112. Dr Sale stated that the symptoms of PTSD are far more intense in the first 12 months and then tend to settle down to a baseline level, where such things as nightmares tend to decrease in frequency as do some of the more obvious anxiety symptoms. Dr Sale also noted that there may be an adjustment in their life style, which may lead them to live in isolated locations and keep contact with others to minimum.
113. In response to questions in cross-examination, Dr Sale stated:
·By Christmas Day 1969, Mr Farnaby, if he had been examined, would, in his belief, have been suffering from a psychiatric condition – but such a diagnosis cannot be made without an examination by an appropriate medical practitioner.
·That neither a Navy psychologist in 1970, nor Dr Nylander, an experienced general practitioner who treated Mr Farnaby between 1986 and 2000, made any reference to Mr Farnaby suffering from a mental condition. There had been at least 30 consultations over that period. Dr Sale was of an opinion that Dr Nylander would have recognised such symptoms if they had been present.
·That arriving at his opinion that Mr Farnaby was suffering from a psychiatric condition in May 2003, Dr Sale referred to:
§Flashbacks relating to the stabbing of someone, which was an unusual and unpleasant experience.
§That the most significant stressor was the sexual abuse by the sponsor in his bed or car.
§His symptoms of chronic alcoholism, periods of depression, capacity for maintaining relationships, substance abuse, under attainment are not inconsistent with a product of child sex abuse. They are also not inconsistent with being caused by other conditions or events in his life.
·He did know that Mr Farnaby built a house at Kellevie. He accepted that that was a significant achievement for a person who was not a builder and a person who had suffered from alcohol abuse over 10 years.
·He was also not aware that Mr Farnaby had built a previous house at New Norfolk, while doing his postman’s job. Dr Sale accepted that his data that he used to postulate his thesis, that Mr Farnaby had a psychiatric condition at May 2003, was incomplete.
·The fact that an individual reports excessive use of alcohol does not lead to a conclusion that the person suffers from a psychiatric condition.
·That Mr Farnaby was a chronic over-imbiber of alcohol ever since his Navy days, drinking most days to excess, with a few dry spells.
·He was aware that Mr Farnaby had been treated for depression in 2001/2002, but not at any stage prior to that time, and that his complaint of periods of depression went back to the eighties.
·That since the eighties he was asocial, intensely irritable and at times he would not leave the house.
·The only actual history of Mr Farnaby living in an isolated place was at Kellevie, although while living at New Norfolk he could be somewhat isolated.
·There were incidents of threatened self-harm (shotgun in 1982-83 and the gas incident some two years before the first consultation) – which are of importance.
·At the first consultation no history was given of an attempted rape.
·He described visual circumstances, termed by Mr Farnaby to be "hallucinations", as occurring typically while falling asleep.
·People with chronic alcohol abuse can develop delusional states (false beliefs).
·He does not know how to reconcile different accounts of the stabbing given to Dr Pridmore and Dr Burgess-Watson.
·That the point of time at which psychiatric symptoms arose was in the early eighties.
·He was unaware of the time when Mr Farnaby’s memories of stabbing someone or being sexually abused reappeared.
·He suspects Mr Farnaby probably had symptoms within six months of PTSD, and these were covered up by his use of alcohol. The evidence for that view is that Mr Farnaby was treated for long standing insomnia in November 1970.
·The clinical onset of PTSD was when he was in the Navy with his problems largely controlled through the use of alcohol.
·To have a diagnosis of clinical onset, it would be nice to have some history of his symptoms at the time, but it is so long ago and Mr Farnaby is not the most articulate and easy man to interview. We do have some indications that there were problems before the early eighties. At that time it became a source of distress for him and one that he had difficulty controlling.
·That making the diagnosis of the clinical onset of PTSD, in this matter, is one of educated speculation. The point of time that there was symptomatology present which permitted the diagnosis of PTSD was in the early eighties.
·Leaving a child aged 15 to 16 on his own, with his parents returning to England, could have caused profound psychological complications, which cannot be excluded in this matter. Further, never seeing his parents again and with both parents dying on the same day, could be significant in his mental history. Similarly, the absence of any attempt to visit his parents in England, over their remaining 10 years of life, would point towards Mr Farnaby emotionally disowning his parents.
·The flashback that he was referring to in February 2005 was the knife incident. In his first consultation with Dr Sale it was in relation to blood and the knife, without being able to put structure to it.
·The trigger for Mr Farnaby’s symptoms occurring in 1981 could have been the deaths of his parents.
·It was Mr Farnaby’s desire not to be amongst others, as it caused him, at times, to make him feel anxious. Further, in such people who desire to isolate themselves, parties and other avenues of social intercourse are not consistent with such a desire.
·That Mr Farnaby’s low grades when at HMAS Leeuwin are not necessarily indications of a health problem.
·His awake dreams did not occur until the early eighties.
·M Farnaby is a poor historian and he has related significantly different clinical histories to various specialists.
·In relation to Ms Kim’s statement, Dr Sale considered for a person to say they were not affected by the death of their parents’ in such circumstances, is extremely unusual and unlikely, and that in Dr Sales’ opinion two propositions arise – namely they are not being truthful with you or they are not being truthful with themselves.
·The fact that Mr Farnaby’s father had nothing to do with him since he was sixteen years old would have affected Mr Farnaby. Similarly, the fact that Mr Farnaby elected not to have anything more to do with his father would have had an emotional effect on him and some sort of impact upon his role as a parent..
·The description of a person as a hard man can mean many things. That the relationship between Mr Farnaby and his father was not great, with the absence of any bequest from his parents’ wills being hurtful to Mr Farnaby. Any comments that he did not need anything was a rationalisation on Mr Farnaby’s part.
·Leaving the home for a few days when the marriage is not going well is in itself not necessarily attributable to a psychiatric condition – there is a need to know what he did during those few days.
·When working as a rigger or undertaking the TAFE course Mr Farnaby was functioning at a reasonable emotional level.
·Mr Farnaby had significant fluctuating levels of difficulties for a period of 20 years from 1980 onwards and, in Dr Sales’ opinion, the failure to report such psychological symptoms over that time is not unusual, particularly in men.
·Chronic alcoholism and/or substance abuse can be a source of various symptoms including anxiety, depression and other symptoms. Further, such usage tends to cloud the clinical picture by simulating a personality disorder.
·Mr Farnaby working daily at the Tyre Repair business in Sorrell, and as it was Ms Kim’s desire for them to move to Kellevie, tends to counter the suggestion of Mr Farnaby wishing to live in isolated circumstances. Further, that if Mr Farnaby read a lot, listened to music and smoked marijuana in a setting where they ran a few stock and had access to a number of vehicles does not sound consistent with Mr Farnaby suffering a psychiatric condition.
·That the memory of the traumatic event in the majority of people is continuous and unforgettable, but in others it lacks continuity.
·If the history turns out to be inaccurate or unreliable, it affects the opinions that flow from that history.
·On the other hand, as Puri et al (2003) state, “with persistent heavy drinking a deterioration in personality takes place which may simulate a personality disorder”. Thus, it is impossible to properly assess Mr Farnaby’s personality until he has been totally free of alcohol for six months.
·In oral evidence, Professor Pridmore confirmed the importance of a physical examination in every psychiatric examination to exclude particular physical conditions, particularly in circumstances of excessive alcohol intake. Professor Pridmore said the circumstances in which Mr Farnaby was to be examined was neither intimidating nor inappropriate.
134. In response to questions asked in cross-examination, Professor Pridmore stated:
·It would be difficult for a male to talk about sexual abuse by another male thirty years ago when they were fifteen years old, with the reason being one of embarrassment, shame and guilt.
·That when Mr Farnaby attended HMAS Leeuwin he had a strong Yorkshire accent, was described as lanky and effeminate, was subject to ‘Deep Heat’ and boot polish applied to his genitals, that after one attack he was naked, hysterical and crying, that he ran the gauntlet, that he went on gruelling punishment runs at night, that he became more and more frightened and had trouble sleeping, that he was regularly given a clip around the ear and that he was coerced into doing chores for senior recruits. Professor Pridmore considers that the criteria in DSM IV relates to one event and not to the accumulation of events. Professor Pridmore was clearly of a view that to diagnose PTSD, the single event characteristics must satisfy the criteria. Further, for the necessary experience to satisfy the criteria, there must be a threat to Mr Farnaby’s physical integrity and that none of the events nominated meet that Criteria A1. Professor Pridmore considered it important to apply discipline to the analysis of such events.
·The other criteria important in the analysis, is the reliving, which provides the ring of truth about the whole case.
·Mr Farnaby’s description of the attempted rape in the van by the sponsor, could be construed as a threat to the physical integrity of Mr Farnaby, and as such satisfy Criteria A1 of DSM-IV for a diagnosis of PTSD.
·In his opinion Mr Farnaby’s response to the circumstances in the van was not one of intense fear, helplessness or horror, in that he was able to reject the advances and even though distressed, that Criteria 1B was not satisfied.
·That all of Mr Farnaby's symptoms and difficulties could be accounted for by his excessive alcohol consumption. Such symptoms included insomnia and panic attacks.
·That the sexual abuse events, if they occurred, would probably have very little impact on the development of Mr Farnaby. They could impact on academic performance, but not his insomnia, nor the issues leading to his court martial in 1974. His need for a valium prescription in 1970 for two weeks for sleeping difficulties for years, does not make sense.
·That the so called “recovered memories” by Mr Farnaby was probably a product of his counselling. The problem with horrific events is that you cannot forget them, not that you cannot remember them. Nevertheless, Professor Pridmore agreed that people who have been traumatised are capable of putting memories out of their mind.
·Mr Farnaby's inability to remember the identity of the perpetrator does not satisfy the inability to recall an important aspect of the trauma (Criteria C (3)).
135. In response to questions from the Tribunal, Professor Pridmore concluded that Mr Farnaby did not satisfy the criteria necessary for either a diagnosis of either alcohol abuse or alcohol dependence; that he has a difficult personality that has been influenced by his drinking, and his life of unemployment and the way he has spent his time over the years. If there is psychiatric diagnosis, Professor Pridmore would consider alcohol dependence first. He said he did not think he had a gross personality disorder.
Findings in Relation to the Medical Evidence
136. We are mindful that a clinical specialist, and in particular a specialist psychiatrist, when making a clinical assessment of an individual is dependent on the individual providing an accurate and reliable history of their circumstances. We note Dr Sale's cautionary reflection - "that if the history turns out to be inaccurate or unreliable, it affects the opinions that flow from that history".
137. In assessing the accuracy and/or reliability of the history provided over time by Mr Farnaby, we note the following:
·A gradually evolving story of the incidents at HMAS Leeuwin in 1968/1969, with the story commencing to be told in 2001 to Ms Nalder and in succession to Dr Welch, Mr Neilson, Dr Roffe and Dr Walker. This evolution, in both content and detail, continued during clinical assessments by Dr Sale, Dr Burges Watson and Professor Pridmore.
·There have been significant variations in the description of the intrusive thoughts (flashback, nightmare, hallucination), as well as variation in content (knives and blood, no particular theme, sexual abuse in van, various incidents at HMAS Leeuwin), with variations as to content over time (knife to abdomen – to arm) and timing of the onset (every night since HMAS Leeuwin to commenced in 1981) – such variations being described to Dr Sale, Dr Burges Watson and Professor Pridmore, and included in Mr Farnaby’s statements and oral evidence.
·The description of the event underlying the content of the intrusive thought (knife wound to abdomen as opposed to the arm), and eventually a more detailed description of an event (the sexual abuse episode), as well as variations in the circumstances, including duration of and activities undertaken in the relation to sexual abuse other than in the panel van.
·There were differing descriptions of his alcohol intake, with Mr Farnaby recording a much more constant use of alcohol including periods of excessive use after ending his navy service in 1979. We note that Dr Burges Watson recorded Mr Farnaby as saying that two years prior to his first consultation in September 2006, he could go for weeks without alcohol. In contrast Dr Sale records “no particular pattern to his excessive alcohol drinking” in his report of 28 May 2003, and “substantial but diminished” in his report of 3 April 2007. In his oral evidence Dr Sale stated that Mr Farnaby was a chronic over-imbiber of alcohol ever since his navy days, drinking most days to excess, with a few dry spells. Finally, we observe that Professor Pridmore in his report of 4 April 2005, concluded that Mr Farnaby was drinking between eight and 14 standard drinks per night, while further concluding in oral evidence that Mr Farnaby’s symptoms and difficulties (including insomnia and panic attacks) could be accounted for by his excessive alcohol consumption.
·The other criteria important in the analysis of whether someone is suffering from PTSD, is the reliving of the event, which provides the ring of truth about the whole issue. (Professor Pridmore – oral evidence).
·That Mr Farnaby’s recall of specific events was extremely limited (Dr Sale – report dated 28 May 2003).
·That Professor Pridmore in his report of 13 September 2004 agrees with Dr Sale’s opinion on the recall of specific events.
·That all his memories, recollections, dreams and nightmares relate to his experiences at HMAS Leeuwin, but there are inconsistencies, as evidenced by what he had said to Dr Sale, Professor Pridmore and also to Dr Burges Watson – oral evidence of Dr Burges Watson.
138. As far as Mr Farnaby’s naval career is concerned, we find the following:
·His absence without leave for four months from HMAS Vampire, from April 1970, was more to do with Mr Farnaby being unhappy with his circumstances on the ship.
·The court-martial in 1974, while serving on HMAS Supply, for striking an officer was provoked and occurred after significant alcohol consumption.
·That use of illegal substances commenced while serving on HMAS Supply; such use increasing while serving on HMAS Nirimba, with the use of marijuana continuing through his post-service years.
139. We have given particular attention to Mr Farnaby’s post-service years. We find the following:
·He lived with his future wife from 1975 onwards; and their various places of residence in Tasmania from 1979 (Dromedary, Magra, New Norfolk and Kellevie) until their separation in 1987.
·The activities undertaken at each place of residence including social and parental activities, and also house building at both New Norfolk and Kellevie.
·That the decision to move to Kellevie was a mutual decision, with the range of social activities being similar throughout.
140. We also note the death of Mr Farnaby’s parents in late 1980, as well as their return to England in 1970, after which there had been minimal contact. We note Mr Farnaby’s apparent response to his parents’ deaths and, in particular, to the circumstances of his father’s death. We observe the infrequent communication by Mr Farnaby with his sister.
141. Mr Farnaby’s employment post-naval service was as a postman until 1984, working at various activities including a solo tyre repair outlet for his father-in-law in 1985-1986. For some eight years, until the mid nineties, he worked for his father-in-law at a tyre repair place at Moonah, after which he had various short-term employment as a Learner Rigger and an electrical assistant at Boyer; woodcutting, a two year part-time TAFE course and work as a youth worker in 2000/2001. Mr Farnaby was granted a disability support pension in 2003.
142. Further, we note the symptoms complained of by Mr Farnaby post 2001. Mr Farnaby has detailed that such symptoms had existed since his early navy period at HMAS Leeuwin (difficulty with sleeping, outbursts of anger, frightened and withdrawn), while heavy drinking commenced while serving on HMAS Vampire. He said the use of illegal substances commenced while serving on HMAS Sydney. We note, that Mr Farnaby said that flashbacks commenced in 1981, as did his desire to isolate from people, avoid crowds, with subsequent development of suicidal thoughts and attempts to self-harm.
143. Mr Farnaby detailed his sleeping problems, his nightmares, his angry outbursts, being anxious, abusing alcohol, experiencing flashbacks to sexual abuse, running the gauntlet, the stabbing, the bashings and the harassment. Mr Farnaby stated in oral evidence that his flashbacks had been occurring since 1968, but were worse after he left the navy, with the worst period being around 2000.
144. After considering all of that evidence, we conclude that Mr Farnaby is not a reliable historian. He has provided a most inconsistent history on important issues critical to the diagnosis of any psychiatric disorder. It is in that uncertain context that the specialists psychiatrists have attempted to formulate an opinion.
145. We are also mindful that the alleged events at HMAS Leeuwin are essentially as described by Mr Farnaby.
146. In his initial opinion Dr Sale concluded that Mr Farnaby was suffering from chronic post traumatic stress disorder, complicated by alcohol abuse. In a later report of 9 June 2006, Dr Sale acknowledged that he had expressed some equivocation about the diagnosis of PTSD, as the relevant event occurred many years ago, and the overall clinical picture has been confounded by chronic alcohol abuse. At this time (June 2006), Dr Sale acknowledged Professor Pridmore’s diagnosis of personality disorder to be a reasonable conclusion. Dr Sale said that Mr Farnaby met the criteria for the diagnosis of personality disorder as in DSM-IV, although he would still prefer to use the term post traumatic stress disorder.
147. In oral evidence, Dr Sale addressed the criteria for the diagnosis of PTSD nominated in DMS–IV-TR. Dr Sale considered all criteria were met. Dr Sale considered that Mr Farnaby had diminished participation in significant activities, experienced feelings of detachment and estrangement from others and that he has a constricted affect with periods of depression and irritability. Further, Dr Sale said he reports difficulty concentrating and irritability, as well as feeling distress in social, occupational and other important areas of functioning, with the duration of such symptoms occurring over many years.
148. In detailing this opinion, Dr Sale made a number of statements, namely:
·That by Christmas Day 1969 Mr Farnaby would have been suffering from PTSD. Later Dr Sale admitted this to be educated speculation.
·He was unaware as to why Mr Farnaby resigned from Australia Post.
·He was also unaware that Mr Farnaby had built a house at both New Norfolk as well as at Kellevie, the former construction undertaken while still working as a postman. He considered building a house to be a significant achievement for a person who was not a builder, and who had been suffering from alcohol abuse for over ten years.
·He acknowledged that the data he had used to postulate his thesis, that Mr Farnaby had a psychiatric condition in 2003, was incomplete.
·He also recognised that the fact that an individual reports excessive use of alcohol does not lead to a conclusion that the person suffers from a psychiatric condition.
·Mr Farnaby was treated for depression in 2001/2002, with his complaints of periods of depression going back to the eighties, although he had not then received treatment for that condition.
·That Mr Farnaby had been asocial, intensely irritable and at times would not leave the house since the eighties.
·The only actual history of Mr Farnaby living in an isolated place was at Kellevie. The significance of Mr Farnaby living in such isolated circumstances is reduced in part by Ms Kim’s evidence as to the reason for moving there, and the activities undertaken by Mr Farnaby while he was there.
·Further, if Mr Farnaby read a lot, listened to music, smoked marijuana in a setting where they ran a few stock and had access to a number of vehicles, it would not be consistent with Mr Farnaby suffering from a psychiatric condition.
·There were incidents of threatened self-harm in the early eighties and again in 2001/2002.
·That at the first consultation no history was given of an attempted rape.
·He does not know how to reconcile different accounts of the stabbing incident given to Professor Pridmore or Dr Burges Watson.
·The point in time at which psychiatric symptoms arose was in the early eighties.
·That leaving a child, aged 15-16, to fend for himself when the parents returned to England in 1970 could have caused profound psychological complications. These facts cannot be excluded in this matter.
·The history of not seeing his parents again, limited communication with them and the deaths of the parents on the same day, some ten years after they left Australia, could be significant, with such material suggesting Mr Farnaby may have emotionally disowned his parents.
·That the trigger for Mr Farnaby’s 1981 symptoms could have been the deaths of his parents.
·That Ms Kim’s statement when she said that Mr Farnaby was not very much affected by the deaths of his parents, or the circumstances of their deaths, would suggest that Mr Farnaby was either not being truthful with himself or, alternatively, with Ms Kim.
·That despite having symptoms for over 26 years, the failure by Mr Farnaby to report them was not unusual, particularly in men.
·Chronic alcoholism/substance abuse can be a source of various symptoms including anxiety, depression and other symptoms. Further, the abuse tends to cloud the clinical picture, and may simulate a personality disorder.
·For a majority of people the memory of a traumatic event is continuous and unforgettable, but in others it lacks continuity.
149. Dr Sale first assessed Mr Farnaby in 2003. The data he had at that time to postulate that Mr Farnaby had a psychiatric condition was incomplete. Dr Sale considered Mr Farnaby to be a poor historian, was not the most articulate man to interview and had given different clinical histories to various specialists. Apart from Mr Farnaby’s written statements and oral evidence, the only navy record suggesting any symptomatology during his naval service is the record of November 1970, in which it states that Mr Farnaby then complained of having had insomnia for years and was treated with valium for a two week period.
150. Although Dr Sale acknowledged that Professor Pridmore’s diagnosis of personality disorder was a reasonable conclusion, he continued to formulate a diagnosis of PTSD. In considering the diagnostic criteria for PTSD in DSM-IV-TR, we note that Dr Sale concludes that Mr Farnaby satisfies all criteria. This is at odds with the statements made by him in oral evidence which we have detailed. We point to the issues of isolation, employment and social and building activities, as well as the inconsistency and unreliability of material provided by Mr Farnaby about his intrusive thoughts
151. Dr Sale expressed the opinion that the onset of clinical symptomatology was in the early eighties, and that it was probably triggered by the deaths of his parents. We observe that such an opinion is shared by other psychiatrists in this matter. We also observe that Dr Sale considers the clinical onset of the PTSD to be in 1969/1970, although he readily admits that such an opinion is one borne of educated speculation.
152. We acknowledge the difficulties confronting Dr Sale in obtaining an accurate and detailed clinical history. We conclude that his analysis reflects such difficulties. We express concern that his preferred diagnosis of PTSD was initially made in the absence of necessary clinical data, while his confirmed diagnosis was made in the context of a less than accurate clinical history.
153. In addressing the opinion of Dr Burges Watson in September 2006, we note the history detailed included:
·Nightmares and “flashbacks of stabbing somebody”, “and being sexually abused” which had emerged in 1981.
154. Prior to his second consultation, Dr Burges Watson spoke with Ms Kim, who he considered not to be a good witness, as she was very vague in many of her responses. Dr Burges Watson noted that Ms Kim detailed Mr Farnaby’s problems of “climbing inside himself” and “didn’t communicate” as commencing after he left the navy in 1979.
155. Following his second consultation, Dr Burges Watson stated:
·There was limited objective evidence of Mr Farnaby’s mental health over the relevant periods of time.
·There was not enough solid fact to make a firm diagnosis.
·That the onset of symptoms was in 1981.
·There was no objective evidence that Mr Farnaby suffers from any diagnosable psychiatric illness at this time.
·There is no convincing evidence that Mr Farnaby is incapacitated for work.
·That Mr Farnaby does not present as currently having any condition that “causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
·The deaths of his parents may have stirred up all sorts of unresolved issues in Mr Farnaby.
156. In a further report dated 4 December 2006, Dr Burges-Watson, having spoken with Mr Farnaby’s sister, Ann, in England, noted that:
·The deaths of Mr Farnaby’s parents in late 1980 coincided with the time when many of his symptoms first appeared.
·That the return of the parents to England in late 1970 would have been upsetting for Mr Farnaby. Again he noted that this coincided with the time at which he sought medical attention for difficulties sleeping.
157. In oral evidence, Dr Burges-Watson confirmed that the only objective evidence in this matter was a raised pulse rate, and that he was unable to find any evidence of any debilitating psychiatric disorder. Further, in response to questions asked in cross-examination, Dr Burges-Watson stated:
·That Mr Farnaby had revealed different thoughts to different people at different times, with revealing thoughts about sexual abuse being difficult and embarrassing for Mr Farnaby.
·That the clinical history at best could satisfy diagnostic criteria A1, A2, B for PTSD, nominated in DSM-IV-TR, but that Mr Farnaby did not meet criteria C, D and E. He gave reasons for such findings.
·It was difficult to discuss with Mr Farnaby his long-term sleeping pattern.
·If one were to accept Mr Farnaby’s history of bastardisation and sexual abuse at HMAS Leeuwin, it could have caused him to have a personality disorder.
·That the de-compensation, as described as occurring by Dr Sale in the early 1980s on hearing of the deaths of his parents, was more likely a re-opening of issues surrounding the parents’ return to England and Mr Farnaby being left here.
·What he cites as the common nightmare, or common flashback, is inconsistent with what he said to Dr Sale, Professor Pridmore and himself.
158. In summary, we considered Dr Burges Watson’s clinical approach to be disciplined and objective. He sought other evidence from Ms Kim and Mr Farnaby’s sister. That evidence allowed him to have a better understanding of relevant matters bearing in mind that Mr Farnaby was an inconsistent and vague historian.
159. We would also observe that Dr Burges Watson concluded that the onset of symptoms was in the early eighties, and associated with the deaths of his parents. This was a re-awakening of issues in Mr Farnaby associated with their departure for England in 1970. This is not, we note, a dissimilar thesis to that postulated by Dr Sale, with Dr Sale postulating a de-compensation of PTSD with a clinical onset in 1969/1970. We also note that Dr Burges-Watson has raised the possibility of a personality disorder but, in the absence of more detailed material about his formative years, his time at HMAS Leeuwin and the early years of his navy service, he believed the matter could not be taken further.
160. In our opinion, Dr Burges Watson’s analysis of this matter was an unhurried, thorough and objective analysis of the available material.
161. In considering the opinion of Professor Pridmore of 13 September 2004, we note the difficulties experienced by Professor Pridmore in gaining the co-operation of Mr Farnaby. We also note that Professor Pridmore records Mr Farnaby as being sexually abused each weekend for six months while at HMAS Leeuwin. He described Mr Farnaby’s current symptoms, and his history of alcohol usage.
162. We observe that Professor Pridmore did not consider that Mr Farnaby satisfied the diagnostic criteria for PTSD, nominated in DSM-IV-TR, namely A1, A2, B. Professor Pridmore gave specific reasons for so finding. Professor Pridmore did not think Mr Farnaby totally incapacitated for work.
163. In a further report dated 4 April 2005, Professor Pridmore again concluded that the flashbacks involving either the stabbing incident, or being in bed with a guy, did not satisfy criteria A for PTSD. Professor Pridmore undertook an analysis in the context of DSM-IV-TR. In relation to alcohol dependence/alcohol abuse, Professor Pridmore noted that Mr Farnaby denied all symptoms of either condition.
164. Professor Pridmore noted that to make a diagnosis of a mental disorder, there must be symptoms of sufficient severity, present in sufficient numbers. Professor Pridmore, in noting Mr Farnaby’s symptoms, concluded that there were not symptoms present in sufficient number or severity to substantiate an Axis I diagnosis.
165. In relation to the issue of personality disorder, Professor Pridmore stated that one would expect that if a true personality disorder was present, it would have presented much earlier. Professor Pridmore, in noting that Mr Farnaby appears to have manifested maladaptive traits and had not had a stable relationship or been in work for many years, concluded that, on such a basis, a personality disorder may possibly exist. But Professor Pridmore cautioned that with persistent heavy drinking, a deterioration in personality takes place, which may simulate personality disorder. In such circumstances, it would be necessary for Mr Farnaby to be totally free of alcohol for six months for his personality to be properly assessed.
166. In answer to questions in cross-examination, Professor Pridmore confirmed his view that to satisfy criteria A1, the assessment must relate to a specific event, and not to the cumulative effect of many events. Further, he accepted that the incident of the attempted rape in the van could be construed as satisfying criteria A1 for the diagnosis of PTSD, but not criteria A2, as Mr Farnaby’s response was not one of intense fear, helplessness or horror.
167. Professor Pridmore was of the opinion that all of Mr Farnaby’s symptoms and difficulties could be accounted for by his excessive alcohol consumption. Professor Pridmore concluded that Mr Farnaby has a difficult personality that has been influenced by his drinking, unemployment and the way he has spent his time over the years.
168. We found the opinions of Professor Pridmore helpful. We observe a careful approach to the assessment of material necessary to satisfy the criteria for a diagnosis of PTSD, or indeed any psychiatric condition nominated in the DSM-IV-TR.
Conclusion
169. We have found that Mr Farnaby was subjected to assaults, harassment and intimidation by fellow recruits at Leeuwin. He was also the victim of criminal sexual abuse by his sponsor.
170. The issue for determination by the Tribunal however is whether the applicant suffered a mental injury or disease as a result of the treatment he was subjected to.
171. Not everyone who is assaulted or raped suffers PTSD or some other mental condition. Dr Sale said in evidence that "in the order of" 50% of rape victims "stand a risk" of a PTSD. (Transcript page 201).
When giving evidence Dr Burges Watson was asked whether everybody who experiences a severe stressor such as sexual assault goes on to have a psychiatric illness. He answered as follows:
"No, not at all. In fact with - there's a recent paper, admittedly it refers to females and that's slightly different, but with childhood sexual abuse it is only with very serious sexual abuse which involves physical violence and threat and full penetration that psychiatric - subsequent psychiatric disorders are common. People with lesser sexual abuse don't develop psychiatric illness. Indeed a very high percentage of both males and females have experienced technically some form of sexual abuse in their childhood". (Transcript page 406).
172. It was therefore necessary for us to carefully assess the evidence in order to determine, on the balance of probabilities, whether the applicant is suffering from any mental injury or disease as a result of the events at Leeuwin and the sexual abuse by his sponsor.
173. The Tribunal has carefully considered the opinions of the three very experienced psychiatrists who gave evidence as well as all of the other material before us. From our examination of all of this material, we conclude that Mr Farnaby’s clinical symptoms commenced in the early 1980's, and have continued with varying degrees of intensity since. We consider that these symptoms arose as a consequence of the deaths of his parents, and a re-opening of issues resulting from the parents’ departure to England in 1970. These symptoms were superimposed on a person who has a difficult personality, associated with an excessive alcohol intake and substance abuse. We are unable to conclude to the standard required that Mr Farnaby satisfies the criteria for a diagnosis of any condition including alcohol abuse, alcohol dependence, personality disorder or PTSD, or indeed for any type of mental injury or disease.
174. In reaching these conclusions, we have relied upon the opinions of the three psychiatrists but in particular, we find the opinion of Dr Burges Watson to be most persuasive. Dr Burges Watson summarised his opinion in the following terms:
"Well, the summation of my opinion is that he doesn't have a post-traumatic stress disorder. I can't say that he didn't experience what he experienced in Leeuwin, both the sexual and the physical abuse. But I don't think a post-traumatic stress disorder developed as a result of it. It may have affected his subsequent life, but I don't think he has any definable psychiatrist illness, disorder, at the present time". (Transcript page 405).
We are unable to accept Dr Sale’s opinion that there was a clinical onset of PTSD in 1969 without corroborative symptomatology at that time.
175. Mr Farnaby has had some symptoms since the early 1980's. He did not report them until 2001/2002. At that time he was treated with anti-depressants. He no longer continues on that medication. We find that any continuing symptoms are associated with his difficult personality, coupled with excessive alcohol usage. We are not satisfied on the evidence before us that the applicant's symptoms are outside the bounds of normal mental functioning and behaviour. (See Comcare v Mooi (1996) 69 FCR 439 at page 444).
176. The Tribunal finds that the applicant does not suffer from any mental injury arising out of or in the course of the applicant's employment in the Navy nor from any disease due to the nature of his employment in the Navy.
Decision
177. The Tribunal affirms the decision under review.
I certify that the 177 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President) and Dr J Campbell (Part-Time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 23 January 2006 and 2, 3, 4, 7, 8, 9, 10, 11 and 14 April 2008
Date of Decision 11 July 2008
Counsel for the Applicant Mr R Browne
Solicitor for the Applicant Ms C Gregg, Fitzgerald & Browne
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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