Jarratt Cullen and Military Rehabilitation and Compensation Commission
[2014] AATA 45
•30 January 2014
[2014] AATA 45
Division VETERANS' APPEALS DIVISION File Number(s)
2012/5464
Re
Jarratt Cullen
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 30 January 2014 Place Brisbane The Tribunal affirms the decision under review.
..................[Sgd]......................................................
Mr R G Kenny, Senior Member
Catchwords
WORKERS’ COMPENSATION – Service in the Royal Australian Navy – Claim for “schizophrenia”, “depressive disorder”, “PTSD” and “alcohol dependence” – Allegations by applicant of assault committed by senior naval personnel – Allegations of stressful events in East Timor – No evidence to support material contribution to claimed conditions from employment – Respondent not liable to pay compensation for incapacity or impairment – Decision under
review affirmedLegislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Cases
Benton and Military Rehabilitation and Compensation Commission [2005] AATA 620
Comcare and Sahu Khan (2007) 156 FCR 536
Smith v Comcare (2013) 212 FCR 335; [2013] FCAFC 65
Secondary Materials
The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
30 January 2014
BACKGROUND
Jarratt Cullen was employed in the Royal Australian Navy (“RAN”) from 27 May 1991 until 8 December 2002. On 24 August 2011, he completed a claim, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “schizophrenia”, “depressive disorder”, “PTSD" and “alcohol dependence”. He alleged that the first three of those conditions were related to his RAN employment because, in 1992 when he was 17 years of age, he was “physically assaulted on various occasions, receiving beatings from superiors” because he had been insubordinate. He also alleged that those conditions were exacerbated because of “risk of coming under fire, exposed to maimed victims and atrocities” and working as an air traffic controller when in East Timor. His alcohol dependence was said to be related to his employment because it developed as a result of the first three conditions. On 27 February 2012, a delegate of the Military Rehabilitation and Compensation Commission (“MRCC”) rejected his claim. That determination was affirmed in a reviewable decision on 8 November 2012.
ISSUES AND LEGISLATION
The circumstances in which compensation is payable under the Act are provided in s 14 thereof which reads:
14 Compensation for injuries
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Relevant definitions in s 4(1) of the Act are:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
There is no dispute that the applicant suffers from the claimed conditions or that each constitutes a “disease”[1]. Accordingly, the issue for determination is whether any of the claimed conditions were contributed to in a material degree by the applicant’s employment in the RAN.
EVIDENCE
[1] This term is used subject to the determination that each “disease” was contributed to in a material degree by the applicant’s employment in the RAN: see Smith v Comcare (2013) 212 FCR 335 at 339; [2013] FCAFC 65 at [16].
Service Records
After his initial training at HMAS Cerberus and HMAS Watson (“Watson”), the applicant was posted to HMAS Melbourne (“the Melbourne”) in February 1992 as a radar plotter. From 1993 to 1995, he served on HMAS Newcastle (“the Newcastle”). After his posting to the Newcastle, he completed RAN courses including the anti-submarine/surface aircraft controller course (“ASAC”) in 1997. He likened the ASAC work to that of an air traffic controller in civilian life. He then served on HMAS Hobart where he was a combat systems operator. He was promoted to Leading Seaman in 1998 and returned to the Newcastle where he experienced a psychotic episode in August 1998 and was taken off the ship to the RAN hospital at HMAS Stirling. He was then transferred to Balmoral Navy Hospital (“Balmoral”) in Sydney. He was at Watson in 1999 and was posted to the oil tanker HMAS Success (“the Success”) from 5 July 1999 on which vessel he was in East Timor for several weeks. He was then posted to HMAS Brisbane where he suffered another psychotic episode and was taken ashore and transferred to Balmoral. He then was based at Watson and HMAS Penguin before being discharged on medical grounds in December 2002.
In evidence was a series of Sailor Performance Appraisal Reports (“SPAR”). Those completed in the first few years of the applicant’s employment indicate that he performed at a level that was barely adequate. On the basis that he was involved in various disciplinary breaches and failed to comply with acceptable standards of behaviour[2], it was recommended that he be discharged due to his retention not being in the interests of the Navy (“RNIN”). He was given a Show Cause notice to that effect on 21 January 1994. In reply, the applicant provided a statement setting out his reasons for being retained in the RAN. He contended that his shortfall in performance and discipline was due to alcohol consumption and the breakdown of his parents’ marriage. In April 1994, the RAN elected not to pursue the RNIN procedure.
[2] See the report of Commander R C Moffitt dated 21 January 1993.
The later SPARs speak more favourably of the applicant’s work performance. In the SPARs for the periods ending July 1999 and January 2000, he is described as having performed his duties, including those related to his ASAC rating, capably and in a timely manner based on sound professional knowledge. However, it was also noted that he had some difficulties in dealing with his superiors and he was not recommended for promotion from Leading Seaman to Petty Officer at that stage. The SPARs for the periods ending June 2001, October 2001 and June 2002 were expressed in favourable terms as was his final SPAR for the period ending 31 October 2002. They described him in positive terms as an excellent, enthusiastic and constructive team player. It was noted that he was being discharged from the RAN and the report described this as unfortunate as he would be “an asset lost” from the organisation. He was awaiting promotion to Petty Officer at the time of his discharge.
In evidence were RAN medical reports relating to the applicant. On 11 September 1992, a Daily Injury Record was completed when the applicant reported a laceration of his lower lip. The history of that injury is recorded as “Assaulted by unknown assailment. No L.O.C….” and “Member involved in fracas ashore. Unknown assailant struck him about the head. No loss of consciousness.” That record also states that the applicant was not on duty at the time.
An Outpatient Health Record, dated 24 September 1992, reported that the applicant had a chronic history of “nightmares accompanied by screaming” and had “always had dreams about incidents that occurred during the previous day”. The dream content was noted to be of a “helicopter crashing into ship, everyone on fire and he being trapped” and also of “the ship sinking…”. Another Outpatient Health Record was completed on 28 November 1992 in which a diagnosis of “stress induced nightmares” was made. The applicant was noted to have some personality clashes with shipmates. He underwent counselling on 23 March 1993 and the associated report noted that he was troubled by the separation of his parents. It was also noted that he enjoyed the RAN and hoped to remain serving for 20 years.
On 9 November 1993, the RAN Area Psychologist completed a report, noting that the applicant was “quite anxious and confused”. It was also noted that the applicant was open in discussing issues in his personal life which were “perceived to be affecting his performance and behaviour…”. The psychologist wrote that the applicant should be given an opportunity to sort out his personal life and that a failure to do so and continuation with undesirable behaviour aboard would raise an RNIN discharge as a realistic option.
As noted above, the applicant experienced two psychotic events during his employment. The first of these occurred while on the Newcastle. He was landed in Perth on 19 November 1998 and was taken to the RAN hospital at HMAS Stirling where he stayed for two days before being transferred to Balmoral. In a report, dated 19 November 1998 by psychiatrist Dr Lee Hardwick, it was noted that the applicant had been depressed on and off for 12 months. The following stressors were noted: parental marriage break up when he was 18 years of age; saw a person shot in King’s cross when he was 17 years old; flatmate took an overdose and cut her wrists a year ago; a good friend stopped breathing after heavy drinking six months ago; saw a woman killed in a car accident six months ago; and has a girlfriend with depression. The applicant was noted to have contemplated suicide over the previous four weeks. Another report, dated 20 November 1998, referred to personal stressors and clashes with other crew members after he slept with a female crew member. The report also noted that he had a stressful job controlling aircraft from the ship. The applicant reported that he tried to shut out “bad things” and referred to his parents’ divorce and being beaten up by other sailors when he was younger in the RAN.
On 8 December 1998, Dr Hardwick noted that the applicant remained depressed and tearful and that a paranoid ideation was at the root of his depressed feelings with thoughts that people were plotting against him, that his girlfriend was having an affair, that he was not doing his job properly, that people were following him, that his phone was tapped and that there were cameras in the ceiling. The opinion in the report was that there was an underlying psychosis present which resulted in anxious/depressed feelings as a secondary process. On 15 December 1998, while some improvement was noted in the applicant’s condition, he remained unfit for sea duties. He was hospitalised in Balmoral from 18 November 1998 until 8 February 1999. On 12 February 1999, it was noted that he had returned to half-day work at Watson until 22 February 1999 and seemed to be over his bout of depression. In March 1999, Dr Hardwick noted that the applicant was coping with full time work at Watson. In a subsequent report, he was diagnosed with atypical depression with psychotic features. In December 1998, he had been medically downgraded to category 6 but returned to category 3 in April 1999.
The applicant returned to sea duties on the Success from 5 July 1999. The Success was in Dili Bay East Timor as part of the International Force for East Timor (“INTERFET”) from 19 September 1999 to 28 October 1999. He then was posted to HMAS Brisbane where he experienced the second of his psychotic events. He was admitted to 2nd Field Hospital in Brisbane on 19 May 2000. The stressors were listed as “work” and “prolonged absence from home”. Psychiatrist, Dr Chalk, diagnosed schizophrenia. He was transferred to Balmoral on 23 May 2000 for further management. Dr Hardwick saw the applicant again on 24 May 2000. He reported the applicant as describing depressive symptoms which commenced again in September 1999 and progressed to psychotic symptoms in March 2000. These included paranoid ideations that people were looking at him and judging him. He had also experienced auditory hallucinations. An outpatient Clinical Record was completed on 10 April 2000 where the applicant was noted to be having relationship problems. He was rated at category 7 from 2 June 2000. However, Dr Hardwick completed favourable reports in July 2000, June 2001 and November 2001. In the last of those reports, Dr Hardwick’ s opinion was that the applicant was fit for seagoing duties but that he should not return to a high stress job such as an air traffic controller.
On 27 February 2002, the Medical Employment Classification Review Board (“the MECRB”) resolved that the applicant be discharged Medically Unfit for Naval Service (“MUNS”). His appeal against that decision was dismissed by the MECRB on 14 September 2002. The MECRB decision was based on a medical report, dated 15 August 2002, by Dr Duncan Wallace that the applicant was unfit for sea duty and that fitness for such duty was necessary for retention in the RAN[3]. As a result, the applicant was discharged on 8 December 2002.
[3] Exhibit 3.
Other proceedings
In response to a claim by the applicant under the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”), the Department of Veteran’s Affairs (“the DVA”) accepted, on 5 October 2000, that, as a result of his INTERFET service in East Timor, he experienced an exacerbation of an adjustment disorder. This had been diagnosed by psychiatrist Dr Keshava. In 2009, the applicant claimed that his schizophrenia, depressive disorder, posttraumatic stress disorder and alcohol dependence were also related to that service. On 21 July 2010, the DVA rejected those claims, declaring that it was satisfied beyond reasonable doubt that they were not related to his East Timor service. DVA documentation also refers to the diagnosis of adjustment disorder as having been “abandoned” and that condition was not included in the psychiatric diagnoses made by his treating doctor, Dr S Phillips, on 9 November 2009 or by the psychiatrists who provided reports in 2009 and 2012[4].
[4] See paras 32 to 41, below.
The applicant made an application for a reparation payment under the Defence Abuse Reparation Scheme based on his allegations of abuse in 1992, in particular, the assaults by RK. On 13 August 2013, the Defence Abuse Response Taskforce (“DART”) determined that he qualified for a reparation payment of $45,000 because of his being abused while in the RAN and a further $5,000 because of mismanagement by the Department of Defence in relation to that abuse. In each case, the DART applied the causation test of “plausibility” which means that the applicant’s allegations were accepted on the basis that they had the appearance of reasonableness.
The applicant
The applicant described many incidents of bullying and beating of lower ranked seamen by others of higher rank which was known in the RAN as “contact counselling”. In his own case, he identified two stressful incidents in 1992 which, he contended, contributed to the development of schizophrenia, depressive disorder and posttraumatic stress disorder. In each of these, he alleged that he was assaulted by RK who, at that time, was his supervisor and a Leading Seaman. This was on the Melbourne which he considered to be a “hostile environment”. He also described stressful events when he was in East Timor on the Success. He gave the following evidence.
In 1992, the Melbourne was berthed in Hobart. The applicant was with other crew members ashore. Because, at the time, he was under 18 years of age, he was required to return to the Melbourne before midnight. He did this and was in the recreational space on the mess deck when RK approached him in an intoxicated state. Earlier that day, he had “back chatted” RK. RK verbally abused him and punched him on the face, concussing him and causing him to fall to the floor. RK then kicked him in the head and in the stomach before declaring that he “would kill” him if he reported the incident. The applicant then returned to his sleeping space and woke other crew members. By then, RK was in his own bunk which was in the same mess area. Some crew members rose from their bunks. These included RK who acted as if nothing had happened between them. The applicant had no cuts from the assault and therefore did not seek medical attention. He did not report the incident because he was fearful of reprisals if he did so.
The second alleged assault by RK on the applicant occurred when the Melbourne was berthed in Melbourne. On shore leave, the applicant was with other crew members in a hotel. At one point, the applicant went to the toilet and, while using the urinal, he was “king hit” to the head with a single punch. He saw that it was RK who hit him. The applicant was assisted back to the Melbourne where he sought first aid treatment for lacerations to his face. The applicant again met up with RK in 1999 when they were both based at Watson. Again RK verbally abused the applicant.
As noted above, the applicant was posted, in 1999, to the Success, an oil tanker which he described as a “high value” vessel because of its fuel load. The Success was equipped with a helicopter and his role on the ship was that of air traffic controller. The Success was deployed to East Timor from 19 September 1999 to 28 October 1999 and was closed up to action stations when it entered Dili Harbour. The applicant recalled hearing gunfire and was advised by another crew member that the gunfire was directed at the Success. The applicant also went ashore in a work party at times and recalled seeing injured persons being evacuated by vehicle and also dead bodies. The applicant said that he was “disturbed” by what he had seen. He said that he wanted to talk to Timorese people and that he had befriended a 9 year old boy who had battle experience and who was working as a double agent. The applicant also described an occasion when the Success entered Indonesian waters under cover of darkness to drop a detachment of SAS military personnel who were tasked with undertaking a covert operation. On that occasion, the presence of the Success in Indonesian waters was not detected by Indonesian forces.
The applicant accepted that, in his early RAN years, his work performance was below standard and that this was reflected in his SPARs. However, he was also aware that these assessments had improved significantly towards the end of his RAN employment during which he completed the ASAC course in 1997, was promoted to Leading Seaman in 1998, completed a Leading Seaman leadership course in 1999 and undertook computer courses in 1998 and 1999. He was declared unfit for sea duty in December 1998 but, in April 1999, he was fit for sea duty in a ship which carried a fulltime medical branch sailor.
In preparing his compensation claim, the applicant contacted several men with whom he had served and who would have been able to give evidence to support his claim. While they agreed with his allegations of violence, none of them was willing to provide a sworn statement to that effect. An unsworn statement was provided by Mr Ritson Carr.
In recent years, the applicant engaged RK in Facebook communications. When asked why he had sent the Facebook messages to RK, he said that he “wanted to suck him in” so that he “could crucify him”. He said that, in one response, RK admitted assaulting him in 1992. However, he also said that he had deleted that response from his Facebook messages. The applicant was referred to an email message that was sent to Graham Ison and which Mr Ison relayed to RK. He agreed that he wrote the message and that he must have sent it to Mr Ison. He did not accept that he knew that Mr Ison would relay the message to RK.
The applicant was referred to Facebook material and to RK’s evidence that the applicant once asserted that he was a member of an outlaw motor cycle club and had studied at Murdoch University. The applicant denied that he had ever made those representations and then declared that, as he was a schizophrenic, it was probably done by his “alternate personality”.
In relation to the reference on 9 November 1993 by the RAN Area Psychologist to the applicant’s concerns being of a personal nature, the applicant responded that things of a personal nature included the fact of being assaulted by RK. The applicant was referred to his statement of 4 February 1994 when he was seeking to overturn the RNIN discharge. Therein, he related personal reasons for his performance problems. As to the absence of reference to RK, he said that he had completed the statement under duress and only referred to “what they wanted to hear”. He said that, at the end of 1998, he was aware of a shift in the manner in which the RAN was dealing with bullying complaints and, therefore, he felt able to refer to his own case of being bullied and assaulted. He did not refer to this when a history was taken on 19 November 1998 but did so on the following day and on 23 November 1998. In those reports, he also referred to the problems caused by his parent’s separation and gave a generalised comment about the assaults. On 4 July 2000, psychiatrist Dr Keshava completed a report in respect of his DVA claim and for the first time identified his alleged assailant as RK.
The applicant agreed that he had provided the DART investigators with various Facebook messages but had not advised them of RK’s admission via Facebook to the assault on himself. He declared that this had been irrelevant to the DART investigation.
The applicant completed a statutory declaration on 12 March 2013. Therein, he detailed the two assaults by RK. The first of these is described in a manner consistent with his oral evidence. However, for the assault in the hotel in Melbourne, he wrote that RK came from his peripheral vision, “king hit” him and punched his face. The applicant wrote that he was concussed and that he fell to the floor where RK started kicking him in the face and stomach again.
RK
RK completed statements dated 17 June 2013 and 2 December 2013. He also gave evidence. He served in the RAN for more than 20 years and was discharged with the rank of Chief Petty Officer. He agreed that he had been serving on the Melbourne in 1992 as a Leading Seaman. However, he denied assaulting the applicant at any time. In relation to the assault in the hotel in Melbourne, he said that he was not in Melbourne at that time as he had been posted to Watson in Sydney where he, his wife and their children were living. He was undertaking a promotion course there. He did not have a strong memory of the applicant and was not, at any time, his direct supervisor. He did not recall seeing the applicant at Watson in 1999. He recalled that, in 2012, he received Facebook messages from him, requesting him to explain his reasons for beating him up. RK had responded by indicating he had no recollection of what the applicant was talking about. After further Facebook messages from the applicant, RK blocked him from contacting him by that medium. However, he received a message from a friend, Graham Ison, which had been sent to Mr Ison by the applicant.
RK said that he was not aware of a culture of bullying, victimising or harassment in the RAN. Also, he denied ever being personally involved in such activity. Neither was he aware of any other supervisor dealing with the applicant in the manner he claimed. However, he conceded that, on one occasion, he had “short sheeted” the bed of another sailor and that this had resulted in punches being thrown by him and the other sailor.
In his first statement, RK claimed that he had never been the subject of any significant disciplinary action apart from misappropriating a can of pineapple juice, using a lathe without authorisation and being late for a shift. He said that he was taken by surprise when he was asked to complete that statement. After doing so, he had reflected on his RAN career and recalled that there were other occasions when he underwent disciplinary action. One of these involved the short sheeting episode noted above; another involved him in using marijuana; and on another occasion he brought a guest on board a vessel without approval.
RK said that he had not given a statement in relation to the applicant’s DART proceedings and had not been contacted by any person to give such a statement.
Medical Evidence
Dr B S Keshava, psychiatrist
Dr Keshava completed a report on 4 July 2000 in relation to the applicant’s claim under the VEA in 2000. He recorded the applicant’s history of being “beaten up” in the RAN and to seeing dead bodies when in East Timor. Dr Keshava also noted that he commenced to drink alcohol on joining the RAN and became a heavy consumer with this increasing after his East Timor employment. As to the dealings with RK, Dr Keshava wrote:
He claimed that the superior officer, [RK], harassed him when he returned to the ship one night in Hobart. He said that the officer hit him on the face first and later on his temple. He felt dizzy and fell on the floor. The officer started kicking him in the abdomen. He became hysterical and started crying. When the others came to see the scene, the officer pretended that he was sleeping.
Dr Keshava referred to the removal of the applicant from the Newcastle in 1999 and his improvement through medication before being posted to the Success. Dr Keshava noted his period in East Timor where the applicant saw “at check points people badly injured with limbs and parts of their bodies missing and it frightened him”. He also recorded him as working long hours in his role as air traffic controller which the applicant described as a “very responsible and risky job”. Dr Keshava also recorded the applicant as advising him of seeing the body of a Timorese man floating in the water and of a night operation when the Success “went into Indonesian territory and the Indonesian ships started following his ship in the middle of the night”.
Dr Keshava identified an adjustment order with reactive (paranoid) psychosis, anxiety state and depression. He also noted that the applicant smoked and drank alcohol heavily. His opinion was that the applicant’s psychiatric conditions stemmed from the traumatic stresses of his employment.
Dr James Woolridge, psychiatrist
Dr Woolridge completed reports on 9 February 2009, 5 March 2009 and 10 November 2009. The applicant was his patient from 2007. He considered that the applicant suffered from schizophrenia, depression and alcohol dependence and that his symptoms commenced in the mid-1990s. He noted that the applicant claimed to have been exposed to bullying and beatings in the early years of his RAN employment as well as exposure to maimed victims and atrocities in East Timor. In his first report, Dr Woolridge noted some features of posttraumatic stress disorder related to his time in East Timor. His opinion was that stress alone would not have caused schizophrenia in the applicant whom he described as “a biologically vulnerable individual”. He wrote that this was supported by the recurrence of symptoms when he ceased his medication.
In subsequent reports, Dr Woolridge’s opinion was that the applicant satisfied the criteria for posttraumatic stress disorder which was related to the following stressors in East Timor: long working hours, a feeling that his life was at risk, coming under small arms fire from the shore, exposure to maimed victims and actions of Indonesians against East Timorese. Dr Woolridge considered that the applicant’s depression and alcohol dependence were secondary to schizophrenia and posttraumatic stress disorder.
Dr Burnett Kann, psychiatrist
Dr Kann completed a report on 30 March 2009 in which he diagnosed schizophrenia, depressive disorder, posttraumatic stress disorder and alcohol dependence. The applicant was unable to recite the stressful events which he experienced during his RAN employment and Dr Kann appears to have relied on the reports of Dr Woolridge.
Dr Anthony Cook, psychiatrist
Dr Cook spoke with the applicant on 6 July 2012 and completed reports dated 10 July 2012 and 17 February 2013. He also gave evidence.
Dr Cook recorded the applicant’s accounts of being bullied and assaulted by his superiors in the early years of his RAN employment on the Melbourne. He also noted that the applicant was in East Timor and recorded him as advising that he was constantly worried about being attacked, that he saw many injured Timorese people and that he saw atrocities against them by Indonesians. In his first report, Dr Cook diagnosed schizophrenia as the applicant’s primary condition to which his RAN employment contributed 1-9%. He described this as a trivial contribution. Dr Cook also identified depressive disorder, posttraumatic stress disorder and alcohol dependence. He wrote that the applicant’s depression was secondary to schizophrenia with some 10-20% being related to his RAN employment. He described RAN employment as having a minor contribution to the applicant’s depressive disorder. Dr Cook took particulars of symptoms described by the applicant and concluded that all six diagnostic criteria for posttraumatic stress disorder, as set out DSM-IV-TR[5], were satisfied on the basis of his East Timor experiences. Dr Cook referred to atrocities against the East Timorese and noted that the applicant described his response to these as “helplessness and horror”. His opinion was that posttraumatic stress disorder was attributable to East Timor employment to an extent greater than 50% and he described this as the principal cause of the condition. Dr Cook described the contribution from RAN employment as “substantial” to the applicant’s alcohol dependence. Dr Cook did not record the applicant’s duties as an air traffic controller as a stressor, noting that the applicant said that he “just did his job, just like everybody else did.”
[5] The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
In his second report, Dr Cook reiterated the RAN stressors alleged by the applicant and concluded that, if those events occurred, he would maintain his opinion. In his evidence, Dr Cook acknowledged other stressors related to the applicant’ personal life. These included the break up his parents’ marriage and other family concerns. Dr Cook conceded that it was possible that the allegations of assault by RK may have had their origin in his psychotic episodes. Nonetheless, he stood by the opinions expressed in his first report provided the factual matters on which he relied did, in fact, occur. He said that, if they did not occur, his opinion would be that there was no connection between the conditions and RAN employment.
Dr Duncan Wallace
Dr Wallace undertook a review of the applicant’s files and completed a report on 15 August 2002. He confirmed that the applicant should be discharged from the RAN as medically unfit. His opinion was that this should have happened after the first psychotic episode in 1998 and that he should not have been declared fit to go to East Timor on the Success.
Other evidence
A copy of the message sent to Mr Ison by the applicant was in evidence. Therein, the author advised that he would not proceed further with his claims if the abuser retracted his denials. Also, a series of Facebook references were in evidence, including:
6 January from the applicant: Hey [RK]. I had a bad dream last night about the time you beat me up in Tasmania on board the ship when I was 16 years old. I need to ask you why did you give me that hiding in the rec space for mate, besides the obvious of being character building.
6 January from [RK]: Thought we had already been down this road?
6 January from [RK]: Jarratt, I have no recollection of the alleged incident (In your dream). I must admit that I don’t even remember being in Hobart on Melbourne, assuming it was Melbourne, as that is the only sea posting I remember you from. If you were 16 y/o in your dream you shouldn’t have been on a warship anyway. When were JR’s dispensed with? As far as giving anyone a “beating” I can honestly say that I never have. Hope this answers your question.
6 January from the applicant: I remember it quite well [RK]. All I want to know is why you beat me up. After all these years if you can’t even tell me the reason why that is a bit piss weak that you don’t want to even give me an explanation as to why you did that to me. I guess you must feel some shame for beating a 16 yr old boy or something like that or maybe you don’t remember [RK]. You are getting old now I guess.
6 January from [RK]: Sorry Jarratt, I obviously can’t help you with this one mate.
Other messages were in evidence but those are not from or to RK.
The applicant’s father, Leo Cullen, provided a statement which was undated and unsworn. He recalled that, in 1992 when his son was on leave, he was told of the assaults that occurred when attached to the Melbourne. He wrote that he understood that his son was afraid of telling someone in authority what had happened because of repercussions.
The applicant advised the respondent of the names of four sailors with whom he served and who would have been aware of the assaults he endured during RAN employment. In evidence were letters written by the respondent to these men requesting a statement detailing any recollections of those assaults. One response was in evidence. This was from Mr Carr who, on 12 October 2012, wrote that he had no recollection of the incident described in the respondent’s letter though he recalled that RK did not like the applicant and he recalled that the applicant had nightmares which awakened other members of the mess.
The applicant emailed Retired Vice Admiral R H Crane whom he described as his Commanding Officer when he was in East Timor. In that message he asked about small arms fire from the shore, although he also described this as being of “no immediate threat to units on station”. The applicant made no reference in the email to any other aspect of his employment in East Timor. Mr Crane replied by email, dated 29 July 2010, and confirmed that they were in Dili Harbour at action state and that one of the potential threats was small arms fire from ashore. He was unable to recall whether his vessel came under such fire at any stage. He recalled that landing parties went ashore to assist the Army with building activities and that there was the occasional instance of small arms fire ashore.
The applicant completed an alcohol questionnaire on 8 June 2000. Therein, he stated that he commenced drinking alcohol in 1991 when he joined the RAN “because everyone else did”. He wrote that he started at one beer per day and drank much more heavily in 1992 after he was beaten by superiors.
APPLICANT’S SUBMISSIONS
Mr Rod Thompson, for the applicant, submitted that it was well known that there was a culture of abuse in the RAN, whereby younger men were subjected to bullying, harassment and assault by more senior members. He referred to Benton and Military Rehabilitation and Compensation Commission[6] as an example of this. He submitted that it was in that setting that the treatment of the applicant should be considered. He submitted that the evidence of RK should be rejected as self-serving and unreliable in relation to the assaults in 1992 and that the applicant’s evidence about those assaults by him should be accepted as truthful accounts of what happened. He also submitted that significance should be given to the DART acceptance of the applicant’s accounts of the assaults and also to the acceptance by DVA of the applicant’s adjustment disorder as being related to his employment in East Timor. He referred to the age of the applicant and his vulnerability at the time and the long term effects that the assaults had on him. He referred to the opinion of Dr Cook that the events as described to him by the applicant were responsible for schizophrenia and depressive disorder and that the atrocities observed by the applicant in East Timor caused him to develop posttraumatic stress disorder with alcohol dependence developing subsequently because of those psychiatric conditions. Mt Thompson submitted that there was clearly a material contribution to the development of the four conditions from the applicant’s RAN employment. He submitted that these were “ailments” and “diseases” and, therefore, “injuries” suffered by the applicant for which the respondent was liable to pay compensation under s 14 of the Act.
[6] [2005] AATA 620
CONSIDERATION
I do not accept Mr Thompson’s submission that significance should be given to the DART determination in relation to the compensation payment to the applicant and to the DVA’s acceptance of the applicant’s adjustment disorder as being related to his service in East Timor. Those determinations were made in the context of the evidence which those respective decision makers had before them and in the context of the respective standards of proof which were applicable to the assessment of that evidence. Both the evidence before me and the standard of proof to be applied in this matter are very different from those that were before the DART and the DVA. In any event, I note that the DVA has rejected his recent claim for the acceptance of psychiatric conditions as being related to the applicant’s East Timor employment, determining that it was satisfied beyond reasonable doubt that they were not attributable to that employment.
Also, Mr Thompson described an RAN culture of bullying, harassment or abuse which prevailed throughout the applicant’s employment with the RAN. While the applicant referred to this, no other evidence was led by Mr Thompson to support this allegation and I make no findings in that regard. I have noted the Tribunal decision in Benton and Military Rehabilitation and Compensation Commission[7] referred to by Mr Thompson. There, some reference was made to a culture of “bastardization” but no findings were made in relation to it and, indeed, the relevant RAN employment in that case was 20 years earlier than that of the applicant. Further, the Tribunal was able to find that Mr Benton had been assaulted in the manner he alleged. The matter before me relates, not to any culture in the RAN, but to particular allegations by the applicant relating to two assaults by RK and to the experiences in East Timor.
[7] See note 6 (above).
I found the applicant to be vague and evasive in giving evidence. At one point, noting his signature on a document, he declared that he had not written it but that, as he was schizophrenic, it may have been signed by his “alternate personality”. There are reports from several psychiatrists in this matter. None of those have suggested that the applicant’s schizophrenia had manifested itself in the phenomenon of an alternative personality. However, the main concern with the applicant’s evidence was his inconsistency in detailing the events on which he based his claim. I am satisfied that he was not a reliable witness. On the other hand, RK gave his evidence in a clear and straightforward manner. I have noted that he omitted to mention some disciplinary matters in his first statement; but I accept his explanation for doing so. Further, he provided the amended record without prompting from anyone else. I am satisfied that he was a witness of truth and adopt his versions of events to the extent that they differ from those of the applicant.
As to the first assault, the applicant described a very serious assault by RK. It extended to punching him in the face, and to kicking him in the stomach and the head to the extent that he lost consciousness. He sought no medical treatment afterwards because he had no cuts as a result of the assault. I do not accept that such a physical attack as he described would not result in some abrasions or lacerations. He said that he returned to the mess and woke other sailors but that RK rose from his bed and pretended not to know about the incident. The account recorded by Dr Keshava has the applicant feeling “dizzy” but does not refer to loss of consciousness or kicks to the head; it refers to him being hit on the temple; and, after the assault, it makes no reference to his return to the sleeping area of the mess but, rather, described the other sailors coming to “the scene”. It also refers to RK pretending to be asleep. Those accounts are materially different. RK accepted that he was in Hobart on the Melbourne at the time of the first assault but denied that he had been the applicant’s supervisor and any involvement in the assault or knowledge of it. There is no other independent evidence that this assault occurred. In his statement, Mr Carr was unable to recall it.
In respect of the second assault, the applicant’s evidence was that he was “king hit” by a single punch. Later, he said that he was able to see that the attacker was RK. In his statutory declaration, he wrote that he was concussed and that he fell to the floor where RK started kicking him in the face and stomach again. He sought treatment and the Daily Injury Record refers to an “unknown assailment” and to “no loss of consciousness”. In his detailed report, Dr Keshava made no reference to this second assault. While, again, the applicant’s accounts are materially different, the main concern I have with that assault flows from the evidence of RK. He said that he was not in Melbourne when the second assault occurred but was based in Sydney at that time. His service records confirm his evidence in that regard.[8] RK denied having travelled from Sydney to Melbourne during that period. The applicant was treated for lacerations which points to an assault of some kind. However, I am satisfied that he was not assaulted by RK. No other association between the RAN and the assault was made by the applicant which leaves the situation as one of an assault on the applicant by someone in a hotel in Melbourne.
[8] See Exhibit 6.
There are inconsistencies in the applicant’s evidence in relation to the Facebook material before the Tribunal. He asserted that RK had made admissions about the assaults in messages to him. Clearly, these would have been significant in presenting his case. I have noted that he declared his motivation in entering into communications with RK to be that he “wanted to suck him in” so that he “could crucify him”. In that context, it defies all logic that he would delete such significant messages. I am satisfied that RK did not make the admissions claimed by the applicant.
The applicant provided no supportive evidence from men with whom he served. Indeed, he said that none of them was prepared to give evidence or complete a statutory declaration. Mr Carr provided an unsworn statement but he had no recollection of the assault on the applicant. The applicant’s father provided a statement in which he recalled the applicant recounting details of assault. His statement was undated and unsworn and he was not called to give evidence.
The psychiatric evidence describes the kinds of matters that occupied the applicant’s mind from 1992 to 2000. In September 1992, he is noted to be “always” experiencing nightmares about the previous day’s events, to helicopters crashing into the ship and to his being trapped in a fire on the ship. In 1993, the separation of his parents troubled him and he referred to this as the reason for his poor performance. At that time, a psychologist recommended that he be given time to sort out his personal life. In 1998, stressors identified were parental marriage break up, seeing a person shot in King’s Cross, flatmate taking an overdose and cutting her wrists, a good friend stopping breathing, seeing a woman killed in a car accident and a girlfriend having depression. The applicant was noted to have contemplated suicide over the previous four weeks. Other personal stressors were noted including clashes with crew members after he slept with a female crew member. The applicant described people plotting against him, his girlfriend having an affair, not doing his job properly, people following him, his phone being tapped and believing that there were cameras in the ceiling. Also noted were his job of controlling aircraft from the ship and being beaten up by other sailors. In 2000, stressors were noted to be work, his prolonged absence from home and relationship problems. It was noted then that he had paranoid ideations that people were looking at him and judging him. In July 2000, Dr Keshava’s report identified RK as having committed the first 1992 assault on the applicant. As noted above, there is no independent evidence, medical or otherwise, of that actually happening. I have noted that, in his evidence, Dr Cook conceded that it was possible that the allegations of assault by RK may have had their origin in the applicant’s psychotic episodes.
That summary of the concerns expressed by the applicant as troubling him over a span of eight years includes a reference to being beaten up by sailors. However, the matters identified are almost exclusively personal in nature and unrelated to his employment with the RAN. Indeed, some of them are of a serious nature and some, such as the breakdown of his parents’ marriage, are persistently referred to.
Dr Keshava identified an adjustment disorder with reactive (paranoid) psychosis, anxiety state and depression and his opinion was that they stemmed from the traumatic stresses of his employment. Though he referred to several events which the applicant experienced, he did not identify the particular stresses which played that role. He also recorded the applicant’s thoughts about his duties as an air traffic controller but implicated no particular aspect of that work as a stressor for the applicant.
I am satisfied that the assaults alleged by the applicant to have been committed by RK did not occur either at all or in the manner alleged by the applicant. Accordingly there is no contribution from those assaults to any of the applicant’s claimed psychiatric conditions. That accords with the evidence of Dr Cook that, if the incidents did not occur as described by the applicant to him, there was no causal association between RAN employment and the claimed conditions of schizophrenia and depression. In any event, I have noted that Dr Cook’s attribution to RAN employment for schizophrenia was “trivial” and that the contribution for depression was “minor”. In each case, those thresholds may not have amounted to a material contribution as required under the Act[9].
[9] Comcare and Sahu Khan (2007) 156 FCR 536
For the relationship between posttraumatic stress disorder and RAN employment, the applicant relied on his experiences in East Timor on the Success from 19 September 1999 to 28 October 1999. He identified a nine year old boy whom he met and who was a double agent but he described no incidents of trauma in relation to him. Neither is that association identified in the psychiatric reports. The applicant referred to a clandestine operation in which the Success ventured into Indonesian waters. The account of this in his evidence ended with the Success departing those waters unnoticed by Indonesian forces. The account reported by Dr Keshava was that of Indonesian ships following the Success in the middle of the night. Dr Keshava also recorded the applicant as advising him of seeing the body of a Timorese man floating in the water. This was not repeated in other psychiatric reports. The applicant also said that he that he was “disturbed”, when he went ashore in work parties, by seeing injured persons being evacuated by vehicle and also dead bodies. The applicant referred to none of these matters when he contacted Mr Crane, his commanding officer on the Success, for verification of stressors in East Timor.
The applicant’s evidence was that, after hearing gunfire, he was advised by another sailor that it was directed at the Success. In his email to Mr Crane for confirmation of that incident, the applicant conceded that such shooting would have represented “no immediate threat” to the ship. Mr Crane was unable to recall whether his vessel came under fire at any stage and gave no indication that the working parties encountered the scenes described by the applicant. Mr Crane noted the occasional instances of small arms fire ashore but these were not matters identified by the applicant.
The diagnostic criteria for posttraumatic stress disorder are set out in DSM-IV-TR. The first of these reads:
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
Dr Cook accepted that this was met by aspects of the applicant’s employment in East Timor. In particular, he identified the applicant’s observations of atrocities committed by the Indonesians. In his evidence, the applicant said only that he was “disturbed” by what he saw. He admitted to Dr Keshava that he was “frightened”. He told Dr Cook that his response to what he saw was “helplessness and horror”. The descriptions in his evidence and as recorded by Dr Keshava do not equate with the intensity of reaction required in criterion A(ii) noted above. Also, the description to Dr Keshava was much closer in time to the East Timor service and is likely to be more accurate than that given to Dr Cook years later. In any event, Dr Cook said that he would only maintain his opinion concerning posttraumatic stress disorder if the factual material provided to him about East Timor were established. Otherwise, he said that he would not make the diagnosis. My observation of the applicant’s unreliability as a witness extends to his statements about events in East Timor. I am satisfied, on the balance of probabilities, that either in his work as an air traffic controller on the Success or generally in East Timor, he was not exposed to a traumatic event of the kind required for criterion A(i) for posttraumatic stress disorder or with a response as required by criterion A(ii) for that condition and that his posttraumatic stress disorder is unrelated to his RAN employment. To the extent that the applicant claimed that any previously existing posttraumatic stress disorder was aggravated by his service in East Timor, there would still need to be a traumatic event as provided for in criterion A to cause that aggravation. As noted, I am satisfied that this was not the case.
In respect of alcohol dependence, the applicant’s case was that this developed as a result of the other psychiatric conditions. I have determined that none of those were contributed to by his employment in the RAN and, accordingly, his alcohol dependence is not related to his employment by those means.
I am satisfied that the respondent is not liable to pay compensation to the applicant in accordance with s 14 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ......................[Sgd]..................................................
Associate
Dated 30 January 2014
Date(s) of hearing 5 and 6 December, 2013 Counsel for the Applicant Rod Thompson Counsel for the Respondent Charles Clark Solicitors for the Respondent Dibbs Barker
1
4
0