Frazer and Military Rehabilitation and Compensation Commission

[2004] AATA 1403

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1403

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/34

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GRAEME ANDREW FRAZER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date24 December 2004

PlaceHobart

Decision

1.      The application to review is allowed.

2.      The decision under review is set aside.

3.      In lieu thereof it is determined that the applicant sustained personal injury by accident arising out of or in the course of his employment with the Commonwealth in 1967/68 which resulted in his partial incapacity for work on 6 December 2000, and that in consequence the applicant is entitled to compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Compensation – Safety, Rehabilitation and Compensation Act 1988 – Commonwealth employee – naval recruit claiming anxiety disorder caused by “bastardisation” at naval training establishment in 1967/68 – incapacity resulting from disorder occurring in 2000 – nature and extent of incapacity disputed – effect of definition of “injury” in 1930 Act and transitional provisions of 1988 Act.

Commonwealth Employees Compensation Act 1930 – ss4,9,10

Safety, Rehabilitation and Compensation Act 1988 – ss4,7,123A,124

Purkess v Crittenden (1965) 114 CLR 164

Darling Island Stevedoring and Lighterages Co Ltd v Hussey (1959) 102 CLR 482

Re Hairis and Comcare (1991) 23 ALD 379

Slattery v Comcare (1996) 70 FCR 131

Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30

Commonwealth v Smith (1989) 18 ALD 224

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. 

Ilsey v Wattyl Australia Pty Ltd (1997) 75 FCR

Koorang Cement Pty Ltd V Bates (1994) 35 NSWLR 452

Commonwealth v Bourne (1960) 104 CLR 32

Connair Pty Ltd v Frederiksen (1979) 142 CLR 485

REASONS FOR DECISION

24 December 2004 The Hon C R Wright QC., (Deputy President)   

1.On 4 March 2002 a review officer of the Military Compensation and Review Service of the Commonwealth Department of Veterans’ Affairs affirmed an earlier Departmental determination of 24 September 2001, denying liability in respect of the applicant’s claim for “anxiety, depression, IBS and peripheral neuropathy”.   On 5 April 2002 the applicant sought review of this determination by the Administrative Appeals Tribunal.

2.The applicant, now aged 53 years (D.O.B. 17 January 1951) joined the Royal Australian Navy as a recruit in 1967 at 16 years of age.    He was posted to HMAS Leeuwin, a shore based naval training establishment near Perth in Western Australia in July 1967.    HMAS Leeuwin was structured so that there was a fresh intake of new recruits at 3 monthly intervals, and it is alleged that, partly as a consequence of this practice, a culture, of “bastardisation” or malicious brutality had become entrenched whereby the more senior recruits would coerce and physically assault members of the more recently arrived intakes.

3.The applicant alleges that he and a few others from his intake were singled out for special attention of this kind and that, particularly during the first 9 months of his time at Leeuwin, he was mistreated by more senior recruits so frequently and so badly that he was severely traumatised by the experience.   Notwithstanding this trauma he continued in the Navy for a number of years until aged 29 Years.   During this 12 year period he was posted to a number of stations in other parts of Australia, mainly employed on aircraft maintenance duties.   After his discharge, he undertook undergraduate studies at Sydney University and obtained degrees of Bachelor of Arts, Bachelor of Social Work and Master of Arts.

4.In 1989 he obtained employment as a social worker at Sydney Hospital.   He resigned in 1991 and took a similar position at Sutherland Hospital.   In 1992 he secured an “In Charge” appointment and returned to Sydney Hospital.   He began to experience health problems and resigned from that job in January 1994.    It seems likely that he was beginning to experience the debilitating and painful condition of peripheral neuropathy at that time.    

5.He left Sydney and commenced work as a social worker at the Royal Hobart Hospital.   He continued in this position from January 1994 until 1995 when his peripheral neuropathy condition was first diagnosed.     He applied for and was granted a disability pension from the Retirement Benefits Fund in 1998.   Since then he has had part-time work with Jane Franklin Hall and as a bench justice at the Hobart Magistrates Court, but he claims that poor health caused him to vacate both of these positions.   In March 2002 he commenced study for a PhD degree at the University of Tasmania and in January 2003 he was appointed as a training officer at a naval cadet establishment in Hobart.   He has now ceased his PhD studies.

6.The applicant claims that since 2000 as the result of an interview with a counsellor at the Commonwealth Rehabilitation Service and the emotional response which this caused (both to him and the counsellor) when he spoke of his traumatic experiences at Leeuwin, his psychiatric condition has undergone a significant change which has now superimposed additional incapacity for work upon him.   He says he has increased anxiety and “flashbacks” about his treatment at Leeuwin.

7.It is claimed that the applicant is entitled to compensation in respect of his Leeuwin caused incapacity under the provisions of s9 of the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”). It is claimed that the trauma caused to the applicant at Leeuwin produced a “mental injury” within the meaning of s9, but, as the injury did not produce any relevant incapacity for work until after the commencement of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) on 1 September 1988, the transitional provisions of that the 1988 Act preserve the applicant’s entitlement to compensation.   It should be noted that the applicant does not claim that he is permanently incapacitated in the present proceedings.   Nor does the applicant seek to quantify the amount of compensation to which he claims entitlement.   The applicant concedes that the incapacity alleged is not the result solely of the injurious events at Leeuwin, but is rather the consequence of his neural condition coupled with that injury.   As one of his medical advisers put it, it is a case of “2 + 2 equalling 5” i.e. there is a magnified disabling effect produced by the combined action of the two conditions.

8.There is a dispute between medical witnesses as to whether or not the applicant’s mental condition was brought about as a result of his experiences at Leeuwin or whether it was a consequence of two pre-existing personality disorders, which, it is suggested, were in evidence before his training at Leeuwin commenced.

9.The respondent also disputes the basis of the applicant’s claim contending that the alleged condition, if established, may have given the applicant an arguable claim under s10 of the 1930 Act, but that the applicant has failed to establish the pre-requisites for the success of such a claim.    The respondent also contends that as the applicant was totally and permanently incapacitated for the purposes of his Retirement Benefits Claim before the event or events which he alleges incapacitated him for the purposes of the Commonwealth legislation, the latter claim cannot succeed.   Issues of credibility were also raised in relation to the applicant’s evidence and that of one of his principal witnesses, Andrew Boyt-Cullis.

10.The applicant’s case came before the Tribunal on 1 July 2004 when a preliminary question as to admissibility of evidence was dealt with.    The hearing resumed on 27 July 2004 and extended over 7 sitting days, concluding on 5 August 2004.   Oral evidence was given by the applicant and 12 other witnesses.   Numerous documentary exhibits were also tendered and received into evidence.   The admissibility question debated on 1 July resulted in the reception into evidence of a document entitled “Précis of Evidence” (Exhibit A1) which contains extracts from interviews with, and statements of, naval recruits who had been stationed at Leeuwin over a span of years, including 1967.   These statements had been provided to an enquiry conducted by Judge Rapke at the request of the Federal Government in 1971.   This was an informal enquiry process.   The witnesses were not placed under oath or affirmation.   The main thrust of the enquiry was to discover whether or not there were unacceptable practices relating to initiation and bullying of recruits at Leeuwin.    The précis of evidence was taken from a CD which was provided from Commonwealth Archives.    There was considerable debate initially as to whether or not I should receive this material into evidence.    I ruled that it should be received.    Whilst it proved to be a document of some historical interest, it had no specific bearing upon the factual issues concerning the applicant’s sojourn at Leeuwin.   These issues were amply covered by the applicant himself and some of the witnesses called during the hearing who had also been present at Leeuwin as recruits in 1967.    At best the précis of evidence tended to establish that the culture of bastardisation portrayed by these witnesses had been a feature of recruit training at Leeuwin over a number of years both before and after the applicant’s time there.   This is not to say that all new recruits were subjected to excessively violent and predatory behaviour by senior recruits.   Nor does it mean that all senior recruits were sadists or bullies.    However the culture complained of was sufficiently well established for certain unacceptable practices to have been followed by successive intakes.   These practices were not just confined to seniors or groups of seniors claiming privileges over the new recruits.   In many cases there was serious violence and individuals were singled out for special attention of this kind.  

11.It is no easy task to define those characteristics which marked out potential victims.    The applicant at the commencement of his training was somewhat smaller and shorter that his peers and had a stubborn streak which caused him to resist pressures which others with a better developed sense of self preservation may have given in to.   He was also deeply religious.   He himself attributes some at least of his problems to his being colour blind and left handed.    His friend and fellow victim, Andrew Boyt-Cullis was well spoken with an English accent and, according to one of the other witnesses, Alan Jackson, was regarded as “a mummy’s boy”.   As Mr Boyt-Cullis’ credibility was questioned by the respondent, I should perhaps say at the outset that I found him to be an impressive and honest witness.   Mr Boyt-Cullis probably had more reason than most of the other Leeuwin witnesses to remember his 12 months there, but by and large I think most of those witnesses made a genuine attempt to recall their period of time at that establishment.     It should not be forgotten that the relevant events occurred 37 years ago, and all of these gentlemen are now middle aged.    The memories of some  had faded but in specific instances it was reawakened by counsel’s probing.    Two of the witnesses, Kelvin John Dawson and Graeme Leslie Rann appeared defensive and were inclined to “see no evil and hear no evil” or, in the present context, “to remember no evil”.   Coincidentally both were made LJR’s (Leading Junior Recruits – a role somewhat akin to a school prefect) during their period at Leeuwin and I think this minor authority status may, to some extent, have coloured or masked their perceptions of the conduct of those  senior recruits who were making the lives of the vulnerable lads such as the applicant and Boyt-Cullis so miserable.

12.As to the applicant himself, I think that he was, generally speaking, frank and truthful in his evidence, but there were some areas in which it was plain he had tailored his testimony to what he perceived as his own best advantage.    I refer particularly to the fourth paragraph in Exhibit A5, a statement made by him about March 2004 where he said “Each night (without fail) a specific group of senior recruits would come up to my dormitory with the purpose of breaking my spirit.   On most occasions I would receive a physical beating for no apparent reason.”   At the Tribunal hearing (Transcript p122) he sought to change the initial words of this statement from “Each night (without fail)” to “On many nights”.    A spontaneous change of emphasis and detail of this kind would not necessarily excite adverse comment, but it became evident during his cross-examination that he had made this change as a consequence of my comment during the admissibility question hearing on 1 July 2004, to the effect that it would be difficult for me to accept that such events occurred on each and every night at Leeuwin.   It is also appropriate to record that on several occasions the applicant became defensively argumentative during cross-examination, but this in itself does not necessarily denote an untruthful witness in my experience.   Finally, on the issue of general credibility I should note that counsel for the respondent, Mr Morgan, impugned the applicant’s truthfulness by reference to a job application which he made for a Customs officer position with the Commonwealth.    This application referred to the applicant’s abilities and skills in glowing self laudatory terms some of which, upon cross-examination, the applicant conceded were not true.    He explained that the material had been prepared by a person who was in the business of compiling professional résumés (Transcript p247).  This explanation would not excuse deceitful and false information as to his experience, of course, but it is fair to observe that few people expect a curriculum vitae or résumé to do other than put forward the job applicant in the most favourable light.   In context I do not regard this matter as having a seriously adverse effect upon the applicant’s credit worthiness in respect of the essential issues.

13.In respect of the history of maltreatment which he claims to have experienced at Leeuwin, I entertain little, if any,  doubt about his veracity in view of the general and, in some cases, specific, corroboration afforded to his story by Mr Boyt-Cullis and several of the other former recruits.   So far as his employment and health are concerned, there is less direct confirmation of his evidence.    In some instances he has contradicted the evidence of medical witnesses as to the contents of their notes and the history which they claimed he provided to them on examination.   Features of this kind are often relied on as indicating unreliability in a witness, but this is not an invariable conclusion.   Sometimes the witness has a genuine, though mistaken, recollection of what was said or done.    Sometimes the medical witness has misunderstood what was said to him or has made an incorrect or incomplete note.   There are many possible explanations for this type of evidentiary conflict.   Nonetheless, the existence of such conflict does cause one to scrutinise the challenged testimony with care.   Generally speaking and taking account of the criticisms referred to above, I found his evidence as to his employment and health  to be reliable with few apparent internal inconsistencies.

14.As to his childhood and teenage development before going Leeuwin there was little, if any, material to provide support for what the applicant told me.    His mother is now quite old and I can understand his reluctance to involve her in litigious proceedings.   He has 3 siblings but they were not called.   It is sometimes said that a picture is worth a 1,000 words and I must say I found the two photographs A7 and A8 to be useful, albeit in a limited way.   I will deal with some aspects of his youthful development when discussing the evidence of Dr I Sale and Dr S Pridmore.   With these few observations as to my assessment of the applicant, I turn to his account of life at HMAS Leeuwin and the subsequent events and circumstances which have led up to the present claim.

15.The applicant’s Statement of Facts and Contentions allege that he was harassed, intimidated and assaulted on numerous occasions whilst at Leeuwin.  Dates and assailants are not particularised, but the following specific incidents are mentioned:

• Punches to the face and other parts of by Applicant’s body (and that of other new recruits) by more senior recruits.

• The paying of “protection money” to senior recruits under duress.

• Physical beatings in his dormitory with the intention of compelling the Applicant to fight other recruits.  As a result of the assaults, the Applicant suffered a number of injuries, including a broken nose and broken ribs.

• Being compelled to run the gauntlet in dormitories, whereby senior recruits bludgeoned the Applicant with pillows filled with clothing, boots and metallic objects.

• A sexual assault, whereby the Applicant was stripped of his clothing and had boot polish applied to his genitals.  He was subsequently paraded before other recruits with the aim of his humiliation.

• On one occasion right at the end of the Applicant’s first year at HMAS Leeuwin, he was forced to fight the smallest recruit in the senior intake.  The Applicant was compelled to assault the other recruit, and the Applicant likely caused the other recruit a broken nose.  The other recruit lost much blood.

16.The applicant’s evidence departed from these particulars in some respects.  For example, Dot point 3:  This originally commenced “Nightly physical beatings…”.  “Nightly” was deleted at counsel’s request on 27 July 2004.    I have discussed the significance of an almost identical issue in relation to the applicant’s general creditability previously in paragraph 12 above.   Dot point 5:  This refers to a sexual assault of a kind which was called “nuggetting” by the witnesses.   The applicant particularises one such event, but said in evidence that he was nuggetted twice.    Dot point 6: The occasion mentioned here was one of particular significance to the applicant who broke down when speaking of it in evidence, but it is plain that it did not occur “right at the end” of the applicant’s first year at Leeuwin.   It must have occurred at least 3 months earlier.   By the end of his year at Leeuwin the applicant was in the group of most senior recruits at the base and had been in that group for 3 months.   The evidence does not suggest that it was recruits in that group who initiated the incident.   The incidents described in the particulars were reproduced in a somewhat expanded version in the Statement (Exhibit A5) which was the basis (with Exhibit A6) of the applicant’s evidence in chief.

17.The evidence generally leaves me in no doubt that there was a culture of “bullying, harassment, intimidation, bastardisation, victimisation and violence” at Leeuwin as alleged in paragraph 8 of the applicant’s Facts and Contentions and that the applicant was frequently upon the receiving end of such disgraceful conduct.  It is also a clear inference to be drawn from the evidence that such activity was either effectively condoned by the officers in control of the facility, or that no effective steps were taken to wipe out or minimise these practices, at least while the applicant was in residence at Leeuwin.

18.I think it may have been seen by senior officers as less pervasive and serious than it was, and I am also suspect that such conduct was viewed by them as a not wholly undesirable practice which “toughened up” the recruits.   It was suggested during the hearing that the recruits at Leeuwin were merely adolescents about 16 years old – little more than schoolboys, but this observation gives insufficient recognition to the fact that undisciplined teenagers can form a pack just as capable of damaging violence as a group of mature adults.

19.I am also satisfied and find that the applicant was frequently set upon or attacked in the way he described in his evidence, by senior recruits.   The enforced “fagging”, the stand over tactics to obtain money and the queue jumping incidents of themselves may not have been particularly disturbing, but coupled with the enforced gauntlet running, the nuggetting and the unavoidable confrontations with other recruits at the insistence of a senior pack plainly created  fear and anxiety in the applicant which must have made his time at Leeuwin miserable and stressful.

20.Mr Boyt-Cullis in his statement (Exhibit A19) gives an even more graphic picture than the applicant of the events which occurred and the general environment of fear and apprehension that both he and the applicant had to endure.   He states (inter alia) that during his time at Leeuwin, the applicant became withdrawn, introverted and uncommunicative.

21.In my opinion, the particulars mentioned in the applicant’s Facts and Contentions tend to give an incomplete, rather than an exaggerated, picture of the numerous assaults upon him.   I am satisfied he was nuggetted on at least 2 separate occasions and that he was required to run several gauntlets.   These were not, as suggested, simple initiation rites for new chums.   They were opportunities for sadistic violence by a small but vicious group of senior recruits.    There is no necessity to make specific findings as to individual events.   The overall picture is clear enough.    I am left in no real doubt that these events caused emotional scarring to the applicant and that this has had long term effects upon the applicant’s physical and mental health.   The real question is whether those effects have resulted in incapacity to the applicant entitling him to recover under the legislation.

22.The first issue to discuss relating to the cause of the applicant’s present mental condition arises out of the medical evidence given by two psychiatric experts.

23.Dr Ian Michael Sale is a consultant psychiatrist, practising in Hobart.   He has had many years of experience in forensic psychiatry.   He examined the applicant at the joint request of the solicitors for both parties on 10 September 2002.   His resultant report became Exhibit A10, and he provided 3 further reports for the purpose of providing answers to questions raised by the applicant’s solicitors.    These reports are dated 18 December 2002 (Exhibit A12), 13 May 2004 (Exhibit A14) and 17 May 2004 (Exhibit A13) respectively.   Dr Sale also attended the hearing and gave evidence on 27 July 2004.

24.In Exhibit A10, Dr Sale discussed the applicant’s family and health history, both from a physical and psychiatric stand point.   He summarised the applicant’s health issues in the following terms:

“(i)He suffers a peripheral neuropathy – the cause of this appears to be unknown.  This is untreatable, is static at present, but could deteriorate.  Any more specific information would need to be sought from a neurologist, preferably Dr Taylor (who knows him).

(ii)       He suffers a hearing impairment.

(iii)He suffers long standing functional gastro-intestinal symptoms such as dyspepsia, bloating and loud borborygmi.

(iv)      He is colour blind.

(v)He suffers psychiatric symptoms – an anxiety disorder in which the principal difficulty is in social and public situations.  This appears to have worsened over the last two years, and additional symptoms include depressed mood and sleeping problems.”

Dr Sale expressed the opinion that the applicant’s condition would be best described as Social Anxiety Disorder.    He said:

“The history provided is that his condition arose during his first year of military service, and was caused by “bastardisation”.  This could be so.  The condition can also arise spontaneously during adolescence, but generally such individuals are somewhat nervous by nature, or are the children of parent’s who are temperamentally anxious.  This does not seem to apply in Mr Frazer’s case.

His history is consistent with the diagnosis.”

Dr Sale added in his opinion that the applicant’s condition was in fact caused by “bastardisation” at Leeuwin but concluded that the applicant’s inability to work arose from his peripheral neuropathy condition rather than his psychiatric state which, he said “has been reasonably static (until recently) and, although restricting did not actually prevent him working as a social worker.”

25.At the time of giving this opinion, Dr Sale was aware that the applicant had been diagnosed by Dr B Taylor, a neurologist, as suffering from peripheral neuropathy following nerve conduction studies and biopsy.   Subsequently Dr Sale was made aware of reports by Dr Taylor dated 7 October 2002 and 3 December 2002 (which became Exhibits A16 and A18 respectively).   The substance of the first of those reports can (for present purposes) be summarised as follows.    The applicant’s ability to work would not be limited by peripheral neuropathy alone, but that condition, coupled with stress, depression and anxiety (conditions which Dr Taylor had observed to be present in the applicant) would be capable of so doing.   Dr Taylor observed also that “The symptoms of his peripheral neuropathy may well contribute to his inability to work, but these are principally aggravated by his stress disorder, and I have noted over the past few years that when his mood is good and his stress disorder is well controlled his neuropathic symptoms essentially disappear.”   In A 18 Dr Taylor said this:

“I first saw Graham in 1997 before he ceased his employment as a Social Worker, and he was significantly experiencing trouble with his neuropathy at that point.  He gave me a history that his symptoms had started some two years before then.  At that stage, he was reasonably stressed by his occupation and the pain from his neuropathy and the uncertainty of his diagnosis.  Therefore, at that stage I thought the neuropathy was the most prominent feature.  However, Dr Sale has noted a worsening in his mood over the last two years, from 2000 onwards.  I concur with this and my notes indicate that he was starting to get significant mood swings.  In fact I trialled him on anti-depressants in 2000 for significant problems with his mood.  Therefore, I agree with Dr Sale on this point.”

26.Dr Taylor’s agreement with Dr Sale was in relation to paragraph (v) of the passage from Dr Sale’s report (A10) which I have reproduced above at paragraph 24 of these reasons.

27.Having been made aware of Dr Taylor’s reports, Dr Sale wrote to the applicant’s solicitors on 18 December 2002 (Exhibit A12) saying (inter alia):

“I do not believe the anxiety disorder in Mr Frazer is sufficient alone to have caused a significant incapacity.  Your client’s incapacity appears to arise from the combined effect of an anxiety disorder and a chronic peripheral neuropathy.  The effect is more than an additive one as it is likely that anxiety will amplify the perception of the pain experience.

Thus it would seem that neither condition alone is sufficient to cause incapacity, but the combined effect is.

The peripheral neuropathy is untreatable, and hopefully static rather than progressive.  In relation to the anxiety disorder, I believe that this will also persist, but treatment can reduce symptomatology and improve coping skills.  The relevant treatment strategies available for a chronic anxiety disorder include:

Medication, particularly SSRI antidepressants such as Zoloft and Aropax

Cognitive behavioural therapy, a form of psychological counselling

Although I believe that treatment would reduce the level of symptomatology, I believe that this is likely to be a permanent condition for your client, and to be causing a permanent impairment.

To assess the level of impairment, I visited the Comcare website ( guide/chapter5.html).  There you will find that the psychiatric impairment rating scale (PIRS) appears to have replaced table 5.1. Using this system I obtained an overall Class 2 impairment.  Aggregate score was 11.  this gives a whole of person impairment of 5% (which, I would have obtained under the old table 5.1).

I believe that your client probably has some occupational capacity.  This would be more likely if he were receiving treatment.  I would expect him to be able to manage 30 to 40% of full time equivalent, but whether he does so will depend on matters such as whether he is receiving treatment, his level of motivation, and the nature of the work.”

28.The applicant’s solicitors made further medical reports and other medical records available to Dr Sale.   On 18 May 2004 (Exhibit A14), Dr Sale reviewed this material and observed that  “there is little in the way of corroboration of the history,” the applicant “now gives of long standing anxiety worsening since 2000”.   He concludes that (provided the applicant’s history is accurate) “anxiety symptoms prior to 2000 were minimal, of nuisance value only; and of insufficient severity to cause your client to report them, or for an experienced psychiatrist to notice”.   This last comment is of some interest given Dr David Leo Weidmann’s evidence to the Tribunal to the effect that, when he examined the applicant in relation to his permanent disability claim upon the Retirement Benefits Fund on 22 December 1997, he thought the applicant had no psychiatric impediment to his return to work.   This is what he said in his report to the Fund (Exhibit R31).

29.Dr Weidmann, a consultant psychiatrist, who examined the applicant on behalf of the Retirement Fund Board to assess his application for disability benefits, was called to give evidence for the respondent.   Dr Weidmann said that at that examination, although the applicant appeared distressed “objectively he didn’t seem to suffer an anxiety disorder or depressive disorder”.   Dr Weidmann agreed that the applicant did exhibit symptoms consistent with peripheral neuropathy.   He noted in his records that the applicant had said his current psychiatric history was “horrific”, but he had no clear recollection of what this related to.   This evidence militates against a finding that the applicant was experiencing an anxiety disorder at the time of that examination, but it should be noted that Dr Weidmann was examining a benefits applicant whose complaint at that point was in respect of disability caused by peripheral neuropathy alone.   The question suggests itself – was he perhaps looking primarily at the issue whether or not there was a psychiatric component to that condition?   This was the view of Dr Sale who said (Transcript p355):

“My impression from Dr Weidmann’s remarks was that he was looking for some sort of psychogenic cause for a neuropathy.   That’s the drift of that report rather than looking for separate psychiatric issues.”

30.The applicant said in his evidence that on 6 December 2000 he spoke at length to Ms Nalder at the Commonwealth Rehabilitation Service and in the course of that discussion he revealed to her details of the Leeuwin abuse.   As mentioned previously (paragraph 5 above) he claimed this was a cathartic and emotional experience.  The applicant did not claim that this was an experience which enabled him to access previously forgotten memories.   He said that he had always been aware of his Leeuwin experiences, but had not previously associated them with his difficulties with social and employment situations. Asked if that evidence was of significance  to his expression of opinion as to the commencement of the applicant’s psychiatric symptoms, Dr Sale said:

“Yes, my experience time and time again with individuals who have been subject to some form of abuse they have experienced or victimisation during childhood, adolescence, perhaps even adulthood sometimes, are often able to suppress those difficulties and it is often only after they start to disclose them it is as if their defences go down and they actually experience increased levels of distress now that those matters have been allowed to come to the forefront of their mind.

In your opinion is this such a case?---That appeared to be the case with Mr Frazer, yes.

Would you then describe the anxiety disorder that in your opinion has its genesis at his time at HMAS Leeuwin, would you then describe it as a latent condition:---Well, it had been latent but it had also been the clues that there had been some problems along the years, but never to the same degree, and it was only recently that they welled up to that extent.

So is the disclosure a point where incapacity commences?---I think that’s probably a reasonable estimate of where you date the psychiatric component of his incapacity.”

31.Dr Sale described social anxiety disorder as a persistent condition and was asked to differentiate it from avoidant personality disorder and obsessive compulsive personality disorder, which was the diagnosis of the applicant’s condition made by Dr Saxby Pridmore.   The following passage taken from Dr Sale’s evidence (Transcript p316 et seq) incorporates his views on this issue:

“The two conditions that I want to ask you about, the avoidant personality disorder and the anxiety disorder that you have identified, are they similar or are they different conditions?---They’re very similar and it would be sometimes extremely difficult to tease apart and perhaps they even reflect the same phenomena.   They are very, very similar.

Right.  The avoidant personality disorder is something that – or is it something that would have been present prior to Mr Frazer joining the navy when he was 16?---Well, by definition personality disorders, you should – they are a stable pattern of functioning that you should be able to trace back into the individual’s adolescence and with avoidant personality you would definitely expect that to be the case.  You would expect that to be apparent, well, the indicators of it – I might have to clarify that for you later – but the indicators would be present during early adolescence.  The qualification I need to make is that you don’t actually make personality disorder diagnoses in someone who is say 13 or 14 or 15 years old, you – even though certain temperaments may be clearly apparent it is conceded that the personality development is still fairly fluid until late adolescence.

Right.  Now, we have had an exchange about this diagnosis of an avoidant personality disorder, how does that show itself in an adolescent?  What are the characteristics in a 14, 15, 16 year old?---You would have a teenager who more than usual would be shy, easily embarrassed, would hold back from social interaction, would be less inclined to go out socially to mix.  All, well, most teenagers go through a phase when they are readily embarrassed and blush about everything, but this situation is that to an extreme degree.

There is evidence before the Tribunal that Mr Frazer was a member of the scouts and went on overnight camps and also went to a jamboree in Dandenong.  That sort of activity, is that consistent with the avoidant personality disorder identified by Professor Pridmore?---In my opinion I would not have imagined that a teenager with avoidant traits would be able to participate in those activities.

Can you explain why it is that the avoidant personality disorder as a condition would interfere with that sort of activity?---They would be reluctant to be away from home overnight, they would be reluctant to be in strange places, they would be reluctant to be in places where they are required to interact with many people, some of them that they have not met before.  That is something almost be definition they would avoid.

Right, and can Dr Sale be shown exhibit A8, please, the photograph of Mr Frazer?  Dr Sale that has been identified as a photograph of Mr Frazer.

Can you explain why it is that the avoidant personality disorder as a condition would interfere with that sort of activity?---They would be reluctant to be away from home overnight, they would be reluctant to be in strange places, they would be reluctant to be in places where they are required to interact with many people, some of them that they have not met before.  That is something almost be definition they would avoid.

Right, and can Dr Sale be shown exhibit A8, please, the photograph of Mr Frazer?  Dr Sale, that has been identified as a photograph of Mr Frazer in boy scouts, in a kilt.  He also gave evidence that he travelled by public transport in that uniform.  Is that consistent or not consistent with the personality disorder?---I think that would be impossible for someone with avoidant personality.  Kids with an avoidant personality are so readily embarrassed it’s just inconceivable they could travel on public transport in a kilt.

Right, I have finished with that exhibit.  What about the situation where Mr Frazer was a 16-year old living with his family in Sydney, goes to Western Australia to join the navy as a recruit, is that something which is consistent or not consistent with someone who has avoided to the degree that has been suggested.--- I can’t imagine that a kid with that sort of temperament would be able to do that.

If it was the case that there were some avoidant and obsessional personality traits, or accepting that that was the case, that Mr – well, I will come back a step.  Do you accept that Mr Frazer prior to joining the navy may have had some of those traits?---Oh, it is conceivable that he had those traits, I think particularly – more so the obsessional.  There’s nothing really about, what I’ve read about him that comes across as avoidant but certainly obsessional traits were probably present.

And also a person that has obsessional traits, how would that affect their experience in a place such as HMAS Leeuwin?---Well, obsessional traits can be an advantage in life.  Many of us have a fair degree of obsessionality and it helps us in our profession, for example, but an individual who is obsessional tends by nature to be less adaptable when circumstances are ambiguous or changing.  They are more readily made – rendered to feel anxious or depressed, they are more readily concerned about failing the standard, the standards they set themselves which are sometimes unrealistically high.

And so for a person who is like that, who has those traits, those characteristics, how would the experience of bastardisation affect them as opposed to a person without those traits?---They would be far less resilient than the average youth and I suppose you might say they are more sensitive, so they are more likely to experience adverse consequences of such a climate.”

32.Mr Morgan cross-examined Dr Sale and based a significant part of his questioning upon the differences between the applicant’s presentation at interview by the doctor, and his self promotion in applications for a number of employment positions.   Dr Sale agreed that the experience and attitude expressed in the applications were largely inconsistent with a person with the history which the applicant had provided to him.    In evaluating the inferences which should flow from this, it is worth noting that Dr Pridmore, who was called as the respondent’s witness, did not appear to doubt that the applicant had long standing psychiatric disorders and, as I have already observed self promotion in job applications can lead to hyperbole and even self deception as to personal characteristics and capabilities, neither of which necessarily result in the author being regarded as untruthful.   Nor does such a consequence necessarily result from the fact that someone has optimistically applied for a  job beyond his competence or temperamental capability.   At all events I do not see Dr Sale’s answers to this series of questions as impacting adversely upon the applicant’s general credibility or, indeed upon the history of symptoms which he provided to Dr Sale.

33.Dr Sale explained his basis for disagreement with Dr Pridmore as follows:

“I think the fundamental difference between our views that we have expressed in our reports is that he sees this as personality and I’m saying I don’t think you can say that.  There is really not sufficient information to say that and in any event he was only 16 and you really can’t make a diagnosis of a personality disorder unless it is very severe at that time.  And further, there are certain things that were inconsistent with that formulation, such as the kilt – being able to even go to Leeuwin and leave his family home – in my mind inconsistent with someone who has got a significant level of difficulties with avoidant behaviour.”

Summing up his position in re-examination Dr Sale said this:

“Well, I believe it is more likely that Leeuwin has had – the experiences at Leeuwin have had an adverse effect and either been a cause of low grade anxiety symptoms over the years or have aggravated what may have been an earlier nervous temperament but have worsened it to a degree that would not have occurred but for Leeuwin.”

34.Professor Saxby Arthur Pridmore is Professor of Psychiatry at the University of Tasmania.    He examined the applicant at the respondent’s request in June 2004.   He provided 2 reports which were taken into evidence as Exhibits R3 and R4.  Neither Dr Sale nor Professor Pridmore claimed to have heard or read a transcript, of the applicant’s evidence to the Tribunal which, no doubt would have been an advantage.   Nonetheless both psychiatric experts were provided with considerable material and the summation of the applicant’s claims and evidence was appropriately undertaken by counsel in the course of examination and cross-examination of each witness.

35.Professor Pridmore in his report of 7 June 2004 (R4) said:

“From the psychiatric perspective, Mr Frazer has two Cluster C personality disorders.  His life and suffering, with all its apparent complications and contradictions, is better understood, if these personality types are kept in mind.  The Avoidant Personality Disorder (DSM-IV,301.82) is characterised by a pervasive pattern of social inhibition and feelings of inadequacy and hypersensitivity to negative evaluation.  The diagnostic criteria are 1) fear of criticism, disapproval or rejection, 2) unwillingness to get involved with people unless certain of being liked, 3) restraint within intimate relationships, 4) preoccupied with being criticised or rejected, 5) inhibited in new interpersonal situations, 6) views self as socially inept, 7) reluctant to take personal risks because they may prove embarrassing.  Mr Frazer satisfies all of these criteria.

The second is Obsessive-compulsive Personality disorder (DSM-IV, 301.4).  This is a pervasive pattern of preoccupation with order and organisation, perfectionism and control at the expense of flexibility and efficiency.  The diagnostic criteria include, 1) a preoccupation with order and organisation to the extent that the major point of activity is lost, 2) perfectionism that interferes with task completion, 3) obsessively devoted to work, 4) scrupulousness and inflexibility about morality, 8) rigidity and stubbornness.  Mr Frazer satisfies these diagnostic criteria, I am unsure about the applicability of three other diagnostic criteria, (5-7), but the diagnosis is made by satisfying four criteria.

Mr Frazer’s obsessive-compulsive personality features, including his high moral sense, have led him to want to help people, fail to achieve and complete tasks and drive him on with stubbornness and tenacity.

His avoidant personality disorder has led him to fear of criticism, reduced his ability to become involved with others for fear or rejection, and prevented the development of intimate relationships.

His obsessional traits (with high morality) have pushed him towards people, but his avoidant personality disorder has made contact with others highly anxiety-provoking.

In addition, he has a painful, disabling peripheral neuropathy.  While his personality has caused him distress, and this may have made his physical pain (from neuropathy) worse, the reverse is also the case.  His disabling neuropathy has brought great loss and threat for the future.  It also offends his heightened desire to apply himself in a dogged manner and increases his fear of being unattractive and an object of criticism by others.

It is understood that the symptoms of the peripheral neuropathy which Mr Frazer suffers, fluctuate from time to time.  This is an additional complication, superimposed on his intricate and multifaceted personality structure.”

After a detailed discussion of the applicant’s history (as provided by the applicant) Professor Pridmore formulated his opinion in the following terms:

“Mr Frazer is a 53 year old former sailor and social worker who draws a disability pension on the basis of peripheral neuropathy.  He under-achieved academically at school (including failing grade ten), probably because of obsessional slowness.  At school he was involved in cadets, scouts and church groups and was deeply religious.  He was highly determined in sport.  At the same time, he had limited friendships.  Throughout his life, he has been perfectionistic, has not married and is highly socially avoidant.

He satisfies the diagnosis criteria of Obsessive Compulsive Personality Disorder (DSM-IV, 301.4) and Avoidant Personality Disorder (DSM-IV, 301-82).  This combination of personality disorders has caused him great trouble.  Obsessional personality disorder drives him to strive relentlessly to help others, but the avoidant personality disorder makes contact with other people a distressing and anxiety-provoking enterprise.

In addition, he suffers a disabling neurological disorder.  While some have argued, with considerable merit, that his emotional symptoms may have made his neuropathy worse (or at least his pain worse), the reverse is almost certainly also true.  That is, that the loss of independence and the threat of further losses, which the neuropathy brings, must also impact on his emotional life.  Neurologist, Dr Craven, (24^th February 2003) has made exactly this point, “on the other hand, when his pains were worse, this exacerbated his anxiety”.  The diagnosis of psychiatric disorders is difficult as the symptoms of a condition may change over time.  But also, symptoms such as ‘anxiety’ can arise from various conditions.  That is, a person who is avoidant by nature, when forced into contact with others, will naturally experience anxiety and this may be interpreted as social anxiety.

Thus, in my opinion, the basic problem is of a combination of Obsessional Personality Disorder and Avoidant Personality Disorder.  Social contact will result in distress.

The individual with avoidant personality finds scouts, cadets, and the services intolerable because there is a set of rules and roles to be followed.  Even after his distressing experience at Leeuwin, in 2002, Mr Frazer was again keen to enter the Navy (Reserve).  This in large part is explained by the fact that set roles makes relating easier, and thus, the services more attractive.

When a life has been marred by severe difficulty in forming human relationships, and the emergence of an incapacitating neurological disease, it is expected the individual will suffer regret, arousal and sadness.

Dr Sale has diagnosed Social Phobia.  Avoidant Personality Disorder and Social Phobia are very similar, and may be alternative conceptualisations of the same phenomena.  The DSM-IV states, “There appears to be a great deal of overlap between Avoidant Personality Disorder and Social Phobia, Generalised Type, so much so that they may be alternative conceptualisations of the same or similar conditions.

I have chosen to use the term Avoidant Personality Disorder (DSM-IV, 301.82) because, in my opinion, the basic problem is in the personality.”

Professor Pridmore also expressed the opinion that over the last 2 years the applicant’s claimed incapacity “arises from his psychiatric disorder more than his physical disorder”, and he said “I estimate that half of his incapacity is due to his neurological condition which causes pain, numbness and weakness and that half is due to Avoidant Personality Disorder and Obsessive Compulsive Personality Disorder”.    Later in his report, he said “It is my opinion that his personality disorders were not caused by his time at Leeuwin” and concluded as follows:

“Psychiatric disorders (including personality disorders) are multifactorial.  The main factors are the genetic inheritance, early life experiences (particularly in the first few years, perhaps extending up to the mid-teens) and current stressors.

Avoidant personality disorder and obsessional compulsive personality disorder both have an inherited component.  (Clonanger.  Personality Development.  1986, 3, 167-226;  Clifford.  Psychological Medicine.  1984, 14, 791-800).

Mr Frazer’s formative years were happy and secure.  His parents were together, his father was employed and Mr Frazer had three siblings.  While he had a limited number of friends at school, this was not due to a particular psychological trauma, but to the early emergence of his personality difficulties.

The current stressors include diverticular disease, painful, disabling and uncertain peripheral neuropathy and advancing deafness.

Mr Frazer’s time at Leeuwin and Albatross was distressing (particularly given his sensitivity) but they were not horrific, and were, in fact, preceded by evidence of psychopathology.”

36.There was a recurring theme through Professor Pridmore’s report placing emphasis upon the applicant’s difficulty in making friends at school.    That he had said this to Dr Pridmore or that he had in fact had such difficulties was strongly contested by the applicant.   When challenged in cross-examination on this issue Professor Pridmore said: “I believe he told me he had few friends and was isolated at primary school.   Now that is only my impression, I don’t have his verbatim.”

Professor Pridmore also placed some emphasis upon the fact that the applicant had suffered difficulties with an accountant at his first place of employment before joining the Navy.   Conscious of the fact that this was but one element in his diagnosis, I still think it would be difficult without knowing a good deal more about the cause of friction between them to attribute such a problem to the applicant’s personality rather than to that of the accountant or some other cause.

37.Mr Browne, counsel for the applicant conducted a  skilful cross-examination of Dr Pridmore and the results of that can be summarised as follows:

Dr Pridmore agreed:

(i)That he was in agreement with Dr Sale that the applicant was 70 percent incapacitated for full-time work.

(ii)That when awarded his disability pension the applicant still had some capacity for work.

(iii)That capacity dated from December 1998.

(iv)That the applicant’s experiences at Leeuwin probably exaggerated his responses to the disorders which he had before going to Leeuwin.

(v)That those experiences would rob a person of confidence and self esteem, cause emotional breakdown and may have caused a worsening of the applicant’s personality disorders.

(vi)That some aspects of the applicant’s early life (e.g. wearing a kilt-based scout uniform and travelling in it to meetings) would constitute unexpected behaviour for a person with avoidant personality disorder.

(vii)That counselling (e.g. the Commonwealth Rehabilitation Service interview on 6 December 2000) could rekindle distress in the applicant.

(viii)That psychiatric conditions can be semidormant for many years in a person with only minor expression of symptoms.

(ix)That it is possible that if the applicant had an avoidant personality disorder before going to Leeuwin, his experiences there may have caused an anxiety disorder so that he now has both.

(x)That it is also possible that the Leeuwin experiences impacted upon avoidant personality traits so as to cause an anxiety disorder.

38.Where the views of Dr Sale and Professor Pridmore are in conflict, I prefer the evidence of Dr Sale.     I do so for the following reasons.    There is a dearth of reliable historical material which gives positive support to Professor Pridmore’s opinion that the applicant’s personality defects existed  prior to the applicant entering HMAS Leeuwin.   Such material as is available is equivocal at best.   Situational factors could well explain his fluctuating school results.   The lack of school friends was challenged and I am not satisfied that the applicant lacked friends as suggested by Professor Pridmore.   The evidence of Boyt-Cullis indicates that a significant personality change in the applicant was observed by him over the period that they shared their friendship at Leeuwin.   He said at the beginning of his time there, the applicant was a free and happy spirit, but at the end he was a defeated and shattered person.   Professor Pridmore affected not to fully understand this description, but I see it as clear enough to show a major adverse change in the applicant’s behaviour.   Indeed Professor Pridmore was, I think, partially correct which he later said “I make of it that this was a harsh and unhappy period in his life and he was distressed by it and therefore may have been withdrawn somewhat.”

39.In essence I think that the applicant’s history prior to Leeuwin provides little, if any, concrete material to justify the claim that he suffered a personality disorder at that time. He had some traits which in retrospect and viewed from the perspective of mental and physical disability in middle age could be seen as consistent with some features of the disorders described by Professor Pridmore, but there is nothing in the evidence to suggest that he was regarded as abnormal or disturbed before Leeuwin. It is true that evidence from relatives, teachers or friends from the period of his early life may have assisted as to this, but in a case such as this where there is clear evidence of sadistic violence at the hands of others over a period of 9 months or more, which, of itself, could explain or go a long way in explaining the development of anxiety to such a degree as to constitute a psychiatric disorder, I would regard the calling of persuasive evidence by the respondent supportive of a contrary conclusion to be highly desirable. This is not to gainsay the indisputable proposition that the overall burden of proof is upon the applicant to satisfy me of extent of his injury caused by the treatment at Leeuwin (Purkess v Crittenden (1965) 114 CLR 164).

40.On the whole of the evidence, I am satisfied that the applicant suffers from a social anxiety disorder which was caused by or resulted from the harsh treatment which he experienced at the hands of fellow recruits whilst serving as a naval recruit at HMAS Leeuwin between 1967 and 1968.   I am also satisfied that such social anxiety disorder has contributed substantially to his present incapacity for work and that this contribution has existed since 6 December 2000.   The extent of the contribution made to his total of 70% incapacity by the anxiety disorder is approximately 50% i.e. he is presently incapacitated to the extent of 35% by his Leeuwin experiences.

41.The Leeuwin experiences in my opinion caused an “injury” i.e. a “mental injury” within the meaning of s9 of the 1930 Act and if the prescribed statutory link between that injury and the applicant’s employment by the Commonwealth can be established and a relevant incapacity can be shown to have resulted from that injury, a compensable situation arises. It must also be shown that the relevant injury was caused “by accident”. The first of these propositions is given clear endorsement by the observations of Fullagar J in Darling Island Stevedoring and Lighterages Co Ltd v Hussey (1959) 102 CLR 482 @ 497-8 where he said:

“Under enactments which simply gave compensation for "injury by accident", and made no specific provision for diseases--or, like the English Act of 1906, made specific provision only for a special class of disease--no serious difficulty seems ever to have been felt in regarding the contracting of a disease as an "injury by accident": see, e.g. Brintons Ltd. v. Turvey [1] (a case of anthrax). The claimant had, of course, to fulfil the general condition on which the right to compensation depended. That is to say, he had to show that the contracting of the disease arose "out of and in the course of the employment" or "out of or in the course of the employment", as the case might be: see generally The Commonwealth v. Ockenden [2] . But if, as in Brintons Ltd. v. Turvey [1] the necessary connexion between employment and disease could be established by medical evidence, compensation was payable. Such cases as Brintons Ltd. v. Turvey [1] are, but such cases as Fenton v. J. Thorley & Co. Ltd. [3] are not, cases where the disease is the injury for the purposes of the Act.

That the contracting of a disease is an "injury by accident", though it may perhaps be thought to represent an artificial and unintended extension of the scope of the Acts, must be regarded as a long established principle of the law relating to workers' compensation. Under statutes which omit the words "by accident" the case is, of course, a fortiori. It is much easier to say that to contract a disease is to suffer an "injury" simpliciter than to say that it is to suffer an "injury by accident".

42.It seems to me to be almost irrelevant whether the applicant’s mental condition can also be described as a “disease”. It would be necessary to do so if he were dependent upon s10 of the 1930 Act to establish his entitlement to compensation, but he is not. That section was inserted into the legislation in 1948 to broaden the scope for disabled employees who could not prove directly that their disability condition arose out of their employment, but could demonstrate that it was associated with specific types of employment, of which theirs had been one. (See Commonwealth v Bourne (1960) 104 CLR 32; Connair Pty Ltd v Frederiksen (1979) 142 CLR 485, see Mason J @ 501 and Murphy J @ 508).

43.It is clear from the respondent’s submissions that the applicant’s claim was initially interpreted as being one in respect of “disease” and, having regard to the terms in which the claim was originally formulated before the Tribunal, this is understandable; but it was quite clear by the end of the hearing that the claim was based on “mental injury” within the meaning of s4 of the 1930 Act which defines the term “injury” used in s9(1) as “any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury.” The AAT decision of Hairis and Comcare (1991) 23 ALD 379 mentioned this definition @ paragraph 51, page 385 as follows:

“… s4 of the 1930 Act states that `injury’ means any physical or mental injury” (emphasis added).    In the definition of `injury’, physical injury is an alternative to mental injury.   There appears to be no guidance in the case law as to what constitutes mental injury in the 1930 Act.    The Macquarie Concise Dictionary defines “physical” as “pertaining to the body; bodily”, while “mental” is defined as “of or pertaining to the mind”.   Thus a direct injury to the brain would be a physical injury, whilst something occasioning harm to the mind would be a mental injury.   (It may, of course, be possible to have both kinds of injury in the one incident.”

Hairis went on appeal to the Federal Court (Einfield J) and the AAT decision was upheld.  (See No NG395 of 1991 Federal Court No 177).

44.

It is clear that for an injury resulting in incapacity to be compensable it is not necessary for the incapacity to result wholly and solely from that injury.   It is sufficient if the injury contributes in a material sense.  (Commonwealth v Smith (1989) 18 ALD 224 Von Doussa J @ 226). See also Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. Whether and to what extent incapacity results is a question of fact. (Ilsey v Wattyl Australia Pty Ltd (1997) 75 FCR 1 @ 6 and Koorang Cement Pty Ltd V Bates (1994) 35 NSWLR 452. Section 7(4)(b) of the 1988 Act provides that for the purposes of

”this Act” the injury is deemed to have occurred when incapacity for work first arose.   So expressed s7 includes Part X dealing with transitional matters.   As already mentioned my finding is that incapacity for work first arose as a result of the applicant’s compensable injury in December 2000.

45.In my opinion the respondent’s argument that the applicant is already receiving a pension in respect of his claimed incapacity lodged with and accepted by the Retirement Benefits Fund and thus cannot therefore recover compensation from the Commonwealth in these proceedings, is misconceived.   In the first place such a proposition appears to ignore the “res inter alios acta”  rule which as a matter of general principle would appear to defeat such an argument, but there is also the strong authority of the decision of Merkel J in Slattery v Comcare (1996) 70 FCR 131 @ 2-3 where he said:

“Although a worker's entitlement to compensation accrues when an injury is suffered, an employer's liability to pay weekly payments does not arise until incapacity supervenes on the injury or injuries that caused or materially contributed to it: see Fisher v Hebburn Ltd (1960) 105 CLR 188 at 202-203 and Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 at 526-527 per Brennan J.

In C E Heath at 526-527 Brennan J, in discussing the liability of an employer to make weekly payments in respect of any injury which caused or materially contributed to the incapacity, referred with approval, to the following passages:

"In Bushby v Morris [1980] 1 NSWLR 81 at 87 the Privy Council said in reference to the Workers' Compensation Act 1926 (NSW):

   `It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently ... There is no room for an artificial rule of law that, in such a situation, one or other accident must necessarily be selected as the cause of the incapacity, apparently on an entirely arbitrary or capricious basis.'

And in Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282 at 289, King J said in reference to the Workmen's Compensation Act 1971 (SA):

   `If the incapacity results in a true sense from more than one accident, a workman must be entitled to claim compensation in respect of all or any of the relevant accidents. If the accidents occur in the employment of different employers, he must be entitled to claim compensation against each employer. If the accidents occur in the employment of the same employer, he is nevertheless entitled to base his claim upon all or any of the accidents."'

It was accepted by the High Court in C E Heath that the entitlement to receive compensation by weekly payments during incapacity arises separately in respect of each of the injuries which caused or materially contributed to the incapacity.

In my view the same principles apply in the present case. The applicant suffered trauma and anxiety as a result of the Voyager collision which led to post-traumatic stress syndrome and then to fatty infiltration of the liver. Compensation was payable under the legislative scheme to the applicant in respect of his Voyager injuries until common law damages were recovered in August 1993 in respect of the same injuries. After that occurred the future compensation entitlement of the applicant (if any) in respect of the Voyager injuries was governed by s 99(2) which provided that further compensation is payable only to the extent it exceeds the damages payable. In that way "double dipping" was prevented.

However, the applicant suffered further trauma and anxiety as a result of the Evans collision which led to post-traumatic stress syndrome and then to fatty infiltration of the liver (the Evans injuries). Although the Evans injuries were probably an "aggravation" or "acceleration" of the earlier Voyager injuries, under the legislative scheme they gave rise to a separate and additional entitlement to compensation: see Leech at 412-413 and C E Heath at 526-527.

Although all of the injuries contributed to the incapacity of the applicant which gave rise to his entitlement to payment of compensation, the applicant has always retained a separate entitlement to compensation for incapacity contributed to by the injuries suffered as a result of each collision.”

46.Section 123A of the 1988 Act makes it plain that the term “injury suffered before the commencing day” is a reference to an “injury” within the meaning of the 1930 Act and accordingly it seems to me that s124(1A) of the 1988 Act confers an entitlement to compensation under the 1988 Act in respect of the mental injury suffered by the present applicant.   Section 124(2)-(6) inclusive does not appear to apply to the applicant.   Under s124(7) the applicant appears to be entitled to compensation assessed in accordance with the provisions of s19.   Section 20 does not apply so as to reduce this entitlement because the “Superannuation Scheme” therein referred to does not include the pension received from the Retirement Benefits Fund which is a State, rather than a Commonwealth, Instrumentality (see s4 1988 Act).

47.Counsel for the applicant placed reliance upon s7(4) of the 1988 Act as to when an “an injury, being a disease” is to be taken to have been sustained.   I do not regard this provision as applicable to or helpful to the applicant’s claim because his entitlement arises from a “mental injury” not a “disease”.   In modern parlance a mental disease and mental injury may be synonymous, but it seems to me that for the purposes of statutory interpretation and in particular the applicant’s claim under the 1930 Act and the transitional provisions of the 1988 Act, this blurring of terminology cannot be allowed.

48.The remaining issue for consideration is whether or not the applicant’s injury resulted from an accident.    His mental condition is the end result of many individual assaults, and it is that condition which constitutes the relevant injury.   The assaults were obviously not accidental but, nonetheless, for compensation purposes an injury caused by a deliberate attack in the workplace is an injury by accident (See Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 esp Menzies J @ 36).

49.It is therefore my opinion that a mental injury caused by numerous assaults (which, if necessary, could be individually identified) is an injury by accident for the purposes of the legislation.

50.I have therefore concluded that the applicant sustained personal injury i.e. a mental injury, by accident arising out of or in the course of his employment by the Commonwealth (see s4A(2) of the 1930).    That injury resulted in partial incapacity for work on 6 December 2000, and in consequence the applicant is entitled to compensation pursuant to the provisions of the 1988 Act.

51.The parties have requested that I not assess such compensation and, as I have not been provided with material or submissions which would enable me to do so,  I have refrained from such a course.

52.I will hear counsel further as to costs, or, if it is agreed that the applicant should recover his costs to be taxed from the respondent, and a memorandum to that effect signed by the solicitors is received at the Registry within 14 days, a determination to that effect will be incorporated with the primary determination.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  27 July 2004 - 5 August 2004
Date of Decision  December 2004
Counsel for the Applicant         Mr Roland Browne
Solicitor for the Applicant          Fitzgerald and Browne
Counsel for the Respondent     Mr Brian Morgan
Solicitor for the Respondent     Mr John Shears, AGS